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EXHIBIT 10.11
VA RESEARCH LINUX IA-64 PORTING LICENSE AGREEMENT
EFFECTIVE DATE: FEB 19, 1999
AGREEMENT #: 1307499
Parties:
Intel Corporation (hereinafter "Intel")
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
VA Research (hereinafter "Developer"),
0000 Xxxx Xxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
This VA Research Linux IA-64 Porting License Agreement ("Agreement") sets forth
the terms and conditions under which Intel shall support Developer regarding
the IA-64 architecture as set forth below and Developer shall accept a license
to the Enabling Software Development Kit (SDK) for the IA-64 Processor in
accordance with the provisions contained in the following Exhibits which are
included in and made part of this Agreement. Intel and Developer are each
sometimes referred to singly as "Party" and collectively as the "Parties." The
following exhibits are included in and made a part of this Agreement:
-- Exhibit "A" - General Terms and Conditions;
-- Exhibit "B" - Restricted Use License Agreement for Enabling SDK
-- Exhibit "C" - Project Plan
-- Exhibit "D" - Certificate of Originality
AGREED
INTEL CORPORATION DEVELOPER
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxxxxx
_______________________ _____________________
Signature Signature
XXXXXXX X. XXXXX XXXXX X. XXXXXXXX
_______________________ _____________________
Printed Name Printed Name
VP PRESIDENT
____________________ _____________________
Title Title
FEB. 19, 1999 2/18/99
____________________ _____________________
Date Date
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VA RESEARCH LINUX IA-64 PORTING LICENSE AGREEMENT
EXHIBIT "A"
GENERAL TERMS AND CONDITIONS
1.0 DEFINITIONS
The capitalized terms used within this Agreement shall have the same
meaning as ascribed to the terms below:
1.1 "IA-64 Processor" means the Intel 64-bit processor with the code name
of Merced.
1.2 "IA-64 Technology" means the software provided by Intel under the
license in Exhibit B, the information provided by Intel under
Restricted Secret Non Disclosure Agreement ("RSNDA") No. 7026-A, any
hardware provided by Intel pursuant to this Agreement and any Intel
confidential information provided to a third party with Intel's
written permission and disclosed by that third party to Developer.
1.3 "Linux IA-64 Port" means the ported OS resulting from the work
detailed in Exhibit "C" "Project Plan" including all of the supported
features listed on that exhibit.
1.4 "Assert" means to bring an action of any nature before any legal,
judicial, arbitration, administrative, executive or other type of body
or tribunal that has or claims to have authority to adjudicate such
action in whole or in part. Examples of such body or tribunal include,
without limitation, United States State and Federal Courts, the United
States International Trade Commission and any foreign counterparts of
any of the foregoing.
1.5 "Chipset" means any integrated circuit designed to be connected
directly to an Intel microprocessor.
1.6 "Developer's Products" means all products manufactured by or for
Developer other than those that are either (i) Intel architecture
compatible microprocessors or Chipsets; or (ii) capable of being
substituted for a product first manufactured by or for Intel without a
loss of some material functionality.
1.7 "Intel's Products" means
all microprocessors manufactured by or for Intel;
all Chipsets manufactured by or for Intel; and
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all products manufactured by or for Intel that cannot be substituted for
a product first manufactured by or for Developer without a loss of some
material functionality; and
all software written by or for Intel that is distributed by Intel or
Intel's licensees for such software through multiple tiers of distribution.
1.8 "Object Code" means computer software code that is generally not human
readable, such as computer software code generated by a compiler that has
been translated from the Source Code of a program.
1.9 "Source Code" means human readable form of computer software, including
any corresponding comments, documentation and annotations.
1.10 "Announced IA-64 Processor" means a version of the IA-64 Processor for
which Intel has publicly announced the price and availability for
commercial purposes.
1.11 "GPL" means any version of the GNU General Public License issued by the
Free Software Foundation, Inc.
1.12 "GPL Software" means any software that is subject to the terms and
conditions of the GPL.
1.13 "LGPL Software" means any software that is subject to the terms and
conditions of any version of the Library GNU General Public License
issued by the Free Software Foundation, Inc.
1.14 "LGPL" means any version of the Library GNU Public License issued by the
Free Software Foundation, Inc.
1.15 "Intellectual Property Rights" means all intellectual property rights
worldwide arising under statutory or common law, including without
limitation that which is acquired or obtained under a contract with a
third party, and whether or not perfected, comprising any of the
following: (i) copyrights, copyright applications, copyright
registrations, mask works and mask work registrations; (ii) rights
relating to the protection of trade secrets and confidential information;
(iii) patents, patent applications, reissue patents, reissue
applications, invention registrations, xxxxx patents; (iv) any right
analogous to those set forth in this Section in foreign jurisdictions;
and (v) any renewals or extensions of the foregoing (as and to the extent
applicable) now existing hereafter filed, issued or acquired. For the
avoidance of doubt, trade marks, service marks, trade names, trade dress,
of all kinds and types are specifically excluded from the definition of
"Intellectual Property Rights."
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1.16 "Patent Rights" means with respect to the subject party all of
such party's rights arising from or related to all classes or
types of patents, utility models and design patents
(including, without limitation, originals, divisions,
continuations, continuations-in-part, extensions or reissues),
and applications for these classes or types of patent rights
and any equivalent rights in all countries of the world that
are owned or controlled by such party.
2.0 OWNERSHIP OF INTELLECTUAL PROPERTY
2.1 Developer and/or Developer's suppliers and licensors retain
all rights, title and interest in the Linux IA-64 Port.
2.2 Intel and/or Intel's suppliers and licensors retain all
rights, title and interest in the 1A-64 Technology.
3.0 LICENSE GRANTS AND DEVELOPER'S DISTRIBUTION RIGHTS
3.1 IA-64 Technology License. Use of the IA-64 Technology shall
be governed by Exhibit B and RSNDA No. 7026-A.
3.2 Developer's Distribution Obligations
(a) Subject to the other conditions of this Agreement,
Developer, may use the IA-64 Technology to create the
Linux IA-64 Port for distribution under a license
agreement that meets the requirements of Developer's
licensors *
(b) *
3.3 Use of Intel logos is not permitted, unless prior express
written permission from Intel is obtained.
3.4 Enforcement of Sublicense Agreements. Developer, Developer's
licensees and Developer's distributors shall enforce any
license
* Confidential treatment has been requested by the Registrant as to certain
portions of this exhibit. The omitted portions have been separately filed with
the Commission.
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agreements for Linux IA-64 Port with the same degree of diligence used in
enforcing similar Developer's Agreements. Developer shall promptly notify
Intel of any violations of Developer's license, distributor and/or end user
agreements which Developer considers significant or which results in
significant unauthorized use and/or copying of Developer's Linux IA-64 Port
such that Developer would have taken action had the violation taken place
against one of Developer's products. Developer shall take the same
appropriate steps to prevent any further unauthorized use or copying of
Linux IA-64 Port as Developer would to prevent unauthorized use or copying
of its products about which Developer knows. Developer shall cooperate and
assist Intel with any legal actions Intel deems reasonably necessary to
eliminate unauthorized use or copying of Linux IA-64 Port at Intel's
expense. The Parties expressly intend for this paragraph 3.4 to create
third party beneficiary rights in favor of Intel to enforce Developer's
sublicenses.
3.5 License by Developer to Intel. Developer grants to Intel, royalty free,
non-exclusive perpetual license with the right to sublicense under
Developer's Intellectual Property Rights to the Linux IA-64 Port and all
parts thereof. On demand by Intel, Developer shall provide Intel with a
copy of the Object Code and the Source Code of the Linux IA-64 Port or
portions thereof. Each time Developer provides to Intel any Object Code
and/or Source Code, Developer shall inform Intel in writing whether such
Object Code and/or Source Code (or portions thereof) is subject to the GPL
or the LGPL. To the extent that Developer provides Intel with any Source or
Object Code that is not GPL Software, Developer shall provide Intel with a
completed Certificate of Originality in the form set forth in Exhibit D.
3.6 License by Developer to Third Parties. Developer shall provide to a third
party upon express written request by Intel a copy of any Source Code or
Object Code provided by Developer to Intel under this Agreement. *
3.7 Use of Trademarks. Developer may use Intel's name in promotional and
marketing literature. Developer agrees that such use of Intel's name will
strictly adhere to the Intel Trademark Usage Guidelines.
3.8 Press releases. Both parties may refer to and use the other party's name in
press announcements regarding Intel's development effort with Developer;
specifically, Developer's porting of the Linux O/S to IA-64 Processors. The
parties will make an initial announcement, the text of
* Confidential treatment has been requested by the Registrant as to certain
portions of this exhibit. The omitted portions have been separately filed with
the Commission.
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which both parties will agree to before releasing. All other press
announcements regarding this Agreement or the Linux IA-64 Port require
Intel's written approval prior to release.
4.0 NO IMPLIED LICENSES
Except for the license grants expressly provided by this Agreement, neither
Party grants to the other, directly, by implication, estoppel or otherwise
any rights under its patents, patent applications, copyrights, trademarks,
trade secrets, or other intellectual property rights. Except for the
license grants expressly provided by this Agreement, third parties to whom
Developer may license Developer's Product according to the terms and
conditions of this Agreement obtain no rights, either express or implied,
or otherwise to any Intel patents, patent applications, copyrights,
trademarks, trade secrets, or other intellectual property rights or those
of Intel's suppliers.
5.0 INTEL'S RESPONSIBILITIES
5.1 Intel shall use commercially reasonable efforts to: (a) loan Developer
pre-silicon development systems and Merced based development systems
for the purpose of porting and testing the Linux IA-64 Port subject to
Developer executing a loan agreement for such systems; and (b) make
reasonable engineering resources available, at Intel's discretion, for
consultation during development of the Linux IA-64 Port.
5.2 Intel shall use commercially reasonable efforts to acknowledge
Developer's contributions and efforts to developing the Linux IA-64
Port.
6.0 DEVELOPER'S RESPONSIBILITIES
6.1 Developer will use Developer's best efforts to create the Linux IA-64
Port, as described in the attached Exhibit "C" (Project Plan). Intel
will accept or reject the Linux IA-64 Port pursuant to the acceptance
criteria set forth in the Project Plan. If Intel (i) rejects the Linux
IA-64 Port or any portion thereof for any deficiency from the
acceptance criteria (a "Deficiency"); (ii) believes that Developer is
falling behind the project milestone schedule set forth in Exhibit
"C"; or (iii) otherwise may be unable to meet the Project Plan,
Developer will confer with Intel within five business days of a
request by Intel, regarding what steps, if any, are needed to remedy
the Deficiency, comply with the schedule or the Project Plan, and
Developer and Intel will agree upon a plan to remedy such Deficiency,
schedule problem or performance problem (a "Deficiency Plan"),
including a schedule for implementing each such plan. Developer's
shall use Developer's best efforts to implement each such plan and
will provide Intel with weekly, written progress reports regarding
Developer's compliance with each such plan.
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6.2 Developer agrees to provide the Linux IA-64 Port at an equivalent
feature set relative to a port of similar maturity on IA-32 or
competing architecture versions at production release and thereafter,
to be completed in accordance with the Project Plan specified in
Exhibit "C" attached hereto.
6.3 Developer agrees to hold project review meetings with Intel on a
quarterly basis. As part of developing the Linux IA-64 Port, Developer
further agrees to cooperate and work as a co-developer with Silicon
Graphics, Inc., Cygnus, Red Hat, Caldera and other third parties at
Intel's request regarding having a complete Linux software solution
for IA-64 processors be available at the public announcement of price
and availability for the processor code named Merced. Developer shall
not disclose Intel IA-64 Technology to such third party.
6.4 Developer agrees to make ongoing references about Developer's
commitment to Intel and IA-64 Processors in Developer's press
announcements, trade show exhibits, marketing and promotional
literature and website subject to Intel's written approval.
6.5 Developer agrees to provide support for Intel's IA-64 Processor
targeted for launch in *, support items include, but are not
limited to, product demos at launch, benchmarks, and public speakers
at conferences and events.
6.6 Developer agrees to allow Intel to use Developer's software logo,
trademarks and service marks within Intel marketing programs and
promotional materials. Intel agrees to use commercially reasonable
efforts to comply with Developer's guidelines regarding the usage of
Developer's logo, trademarks and service marks.
6.7 Developer agrees to allow Intel to assign up to * engineers to work at
Developer's site on the development of the Linux IA-64 Port at Intel's
expense. At production release of the Linux IA-64 Port, Intel will
waive Intel's copyrights in any of the code created by Intel's
engineers that are a part of the Linux IA-64 Port.
7 OTHER INTELLECTUAL PROPERTY TERMS
7.1 While Intel owns an equity interest in Developer, Developer agrees to
license and/or sell Developer's products to Intel without the right
for Intel to sublicense or otherwise distribute such products which
Developer makes generally available to third parties. *
* Confidential treatment has been requested by the Registrant as to certain
portions of this exhibit. The omitted portions have been separately filed with
the Commission.
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*
7.2 *
7.3 Assignment. If Developer assigns or attempts to assign ownership of
any of its Patent Rights to a third party not bound by this covenant
not to xxx (whether directly or by operation of law), then effective
immediately prior to such assignment or attempted assignment,
Developer agrees that Intel shall have a nonexclusive, nontransferable
license, without right of sublicense, under such assigned Patent
Rights to make, use, sell, offer for sale and import Intel's Products.
This conditional license shall survive any termination or expiration
of this Agreement and shall remain in full force and effect until
mutually agreed otherwise by the parties.
8 AUDIT RIGHTS AND OBLIGATIONS
8.1 Intel shall have the right to inspect or have an independent auditor
inspect Licensee's facilities and records to verify Licensee's
compliance with the terms and conditions of this Agreement. If such
an inspection discloses Licensee is not compliant with these terms,
Intel may exercise any or all rights and remedies provided under this
Agreement or by law, including but not limited to the right to recover
the cost of such audit.
9 CONFIDENTIALITY AND NON-DISCLOSURE
9.1 Confidential Information.
* Confidential treatment has been requested by the Registrant as to certain
portions of this exhibit. The omitted portions have been separately filed with
the Commission.
8.
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(a) Confidentiality of the IA-64 Technology shall be governed by
RSNDA No. 7026-A and Exhibit B. Additional Developer employees
may be added to and authorized to work on the Linux IA-64 Port by
mutual written agreement of the parties. Such mutual written
agreement shall be made effective by amending Attachment 1 to
Exhibit B to this Agreement and/or the process specified in RSNDA
No. 7026-A.
(b) Developer agrees not to reverse engineer any Confidential
Information or products and will not decompile or disassemble any
Intel software which is furnished to Developer by Intel under
this Agreement nor assist any third party to do so.
9.2 Return of Confidential Information
When the Linux IA-64 Port is completed, or if this Agreement is
terminated for any reason prior to the completion of the Linux IA-64
Port, Developer will return to Intel all IA-64 Technology (and all
related documents). Developer also will, at Intel's option, either
destroy or deliver to Intel any copy, notes, summary, abstract or
derivative work which Developer has prepared of or from any
Confidential Information. However, for as long as Developer has
maintenance obligations under Section 3.1, Developer may retain copies
of the Confidential Information necessary for Developer to perform
Developer maintenance obligations.
10 DISCLAIMER OF WARRANTY
10.1 THE IA-64 TECHNOLOGY IS PROVIDED "AS IS" WITH NO WARRANTY OF ANY KIND.
INTEL SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY, INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS AND
FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, EXCEPT AS SPECIFIED IN
THIS AGREEMENT, INTEL IS NOT OBLIGATED TO PROVIDE ANY SUPPORT OR
ASSISTANCE, NOR INSTALLATION, TRAINING OR OTHER SPECIAL SERVICES.
10.2 DEVELOPER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY, INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS AND
FITNESS FOR A PARTICULAR PURPOSE FOR THE IA-64 PORT. ALL OTHER
SOFTWARE SUBJECT TO THIS AGREEMENT SHALL BE SUBJECT TO THE WARRANTIES
EITHER NEGOTIATED BETWEEN THE PARTIES OR REQUIRED BY SECTION 7.1.
9.
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11 LIMITATION OF LIABILITIES
11.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY PROPERTY DAMAGE,
PERSONAL INJURY, LOSS OF PROFITS, INTERRUPTION OF BUSINESS OR ANY
SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER
FOR BREACH OF WARRANTY, CONTRACT, STRICT LIABILITY OR OTHERWISE. BOTH
PARTIES DISCLAIM ALL LIABILITY, INCLUDING LIABILITY FOR INFRINGEMENT
OF ANY INTELLECTUAL PROPERTY RIGHTS RELATING TO THE IA-64 TECHNOLOGY
OR THE LINUX IA-64 PORT.
12 TERM AND TERMINATION
12.1 Term of Agreement. This Agreement shall remain in full force and
effect for three (3) years from the Effective Date, unless terminated
as provided herein. After this initial three (3) year term, this
Agreement shall automatically renew for consecutive one (1) year
periods, unless ninety (90) calendar days or more prior to the end of
either the initial term or any subsequent term either Party provides
the Party with written notice terminating the Agreement.
12.2 Right to Terminate. Either party may terminate this Agreement, if
permitted by law, if the other: a) breaches any material provision of
this Agreement and fails to cure the same within thirty (30) calendar
days after receipt of written notice from the other party; b) fails to
substantially comply with any Deficiency Plan; c) fails to achieve
substantial progress in any quarter regarding the Project Plan set
forth in Exhibit C; d) files or has filed against it a petition for
bankruptcy; e) has a receiver appointed to handle its assets or
affairs; f) makes or attempts to make an assignment for the benefit of
creditors; or g) undergoes a change in control through acquisition or
any entity or person acquires sufficient voting stock to replace the
board of directors of Developer. In addition, Intel shall have the
unilateral right to terminate this Agreement at any time for Intel's
convenience.
12.3 Continuing Rights and Obligations. The respective rights and
obligations of Developer and Intel under the provisions of 2, 3, 4,
9, 10, 11 and 13 shall survive termination of this Agreement.
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13.0 GENERAL PROVISIONS
13.1 Assignments.
Developer may not assign this Agreement or any portion of this
Agreement to any other party without Intel's prior written
consent but this sentence shall have no effect on a merger with
or a change of control by Developer Any such attempt to assign
shall be null and void. Developer will not use any subcontractors
in connection with the work performed pursuant to this Agreement,
as described in the attached Exhibit "C", which have not been
previously approved by Intel. Any approved subcontractor must
sign a confidentiality and restricted use agreement that includes
terms and conditions substantially the same as those contained in
RSNDA No. 7026-A, as applicable.
13.2 Notices. All notices and requests required or made under this
Agreement must be in writing and will be deemed given if
personally delivered or if mailed postage prepaid, certified, or
registered mail to the addresses listed on the cover page to this
Agreement or to such other address as may be provided in writing.
All notices to Intel shall be marked to the attention of the
General Counsel.
13.3 Independent Development.
(a) For Intel. This Agreement does not preclude Intel from
evaluating, acquiring from third parties not a party to this
Agreement, independently developing or marketing similar
technologies or products, or making and entering into
similar arrangements with other companies. Intel is not
obligated by this Agreement to make such products or
technologies available to Developer.
(b) For Developer. During the term of this Agreement, Developer
will not engage or cooperate with any third party on the
porting of the Linux operating system targeted for IA-64
processors without Intel's written permission. * Except as
expressly provided in this subsection b, this Agreement does
not preclude Developer from evaluating, acquiring from third
parties not a party to this Agreement, independently
developing or marketing similar technologies or products, or
making and entering into similar arrangements with other
companies. Except as expressly provided in section 3 and
section 7, Developer is not obligated by this Agreement to
make such products or technologies available to Intel.
* Confidential treatment has been requested by the Registrant as to certain
portions of this exhibit. The omitted portions have been separately filed with
the Commission.
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13.4 Choice of Law; Choice of Forum. Any claim arising under or relating to
this Agreement, shall be governed by the laws of the State of Delaware,
excluding its choice of laws provisions.
13.5 Export Restrictions. Developer and Intel expressly agree not to export or
re-export the IA-64 Technology, the Linux IA-64 Port or any direct
product thereof without the appropriate United States and foreign
government export licenses and approvals.
13.6 Force Majeure. The failure of either Party to perform any obligation as a
result of any unforeseen circumstances or causes beyond the Parties
reasonable control, included, but not limited to, acts of God, war, riot,
embargoes, acts of civil or military authorities, fire, flood, accident,
strikes, inability to secure transportation, facilities, fuel, energy,
labor or materials, is excused for a period of sixty (60) calendar days.
13.7 Relationship of Parties. The parties are independent contractors. Nothing
in this Agreement will be construed to make us partners or joint
venturers or to make either of us liable for the obligations, acts or
activities of the other.
13.8 Headings. The various headings and sections of this Agreement are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement.
13.9 No Rule of Strict Construction. Regardless of which of us may have drafted
this Agreement, no rule of strict construction shall be applied against
either of us. If any provision of this Agreement is determined by a court
to be unenforceable, we will deem the provision to be modified to the
extent necessary to allow it to be enforced to the extent permitted by
law, or if it cannot be modified, the provision will be severed and
deleted from this Agreement, and the remainder of the Agreement will
continue in effect.
13.10 Entire Agreement. This Agreement is the entire agreement between us with
respect to matters contained herein, and all prior or contemporaneous
agreements and negotiations with respect to those matters are superseded
by this Agreement. This Agreement may not be modified except by written
document signed by an authorized representative of each party. No waiver
of any breach or default shall constitute a waiver of any subsequent
breach or default.
END
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VA RESEARCH LINUX IA-64 PORTING LICENSE AGREEMENT
EXHIBIT "B"
RESTRICTED USE LICENSE AGREEMENT FOR ENABLING SDK
INTEL CORPORATION
RESTRICTED USE LICENSE AGREEMENT
(CONFIDENTIAL)
Effective Expiration Date:
Date: ____________________ ____________________
1. PURPOSE. Intel Corporation ("Intel") desires to provide certain information
and materials ("Technology") to _________________, with offices located at
___________________________ ("Recipient") solely for Recipient's internal
use for the sole purposes defined in the VA Research Linux IA-64 License
Agreement executed separately from this agreement by and between Intel and
Recipient on _______________ and for which this agreement is an exhibit.
Recipient may not disclose or distribute the Technology, or use the
Technology for any purpose not explicitly stated herein.
2. TECHNOLOGY. For purposes of this Agreement, the Technology, as described in
Attachment "1" attached hereto, is under development by Intel and may
include software, specifications, prototypes, or other materials and any
modifications thereto made by Recipient. Title to the Technology remains
with Intel or its suppliers. Recipient shall not mortgage, pledge or
encumber Technology in any way. Unless the parties execute a broader
license to the Technology, Recipient shall upon termination or expiration
of this Agreement destroy all Technology, including any and all derivative
works thereof and certify to Intel in writing of Recipient's compliance
with this provision.
3. LICENSE TO USE. Intel grants Recipient for the term of this Agreement a
royalty-free, personal, nontransferable, nonexclusive license under its
copyrights to use Technology only for the purposes described in paragraph 1
above. Recipient shall not disassemble, reverse-engineer, or decompile any
software.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, INTEL DOES NOT GRANT ANY LICENSE,
DIRECTLY OR BY IMPLICATION, ESTOPPEL OR OTHERWISE UNDER INTEL PATENTS,
PATENT APPLICATIONS, COPYRIGHTS, TRADEMARKS, OR TRADE SECRET INFORMATION.
13.
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4. CONFIDENTIALITY. The Technology includes confidential information of Intel.
Recipient may not reveal, disclose or distribute the Technology in any
form, or display it publicly or distribute any product thereof, or use it
or any information relating to it except for the purposes of this
Agreement, including but not limited to the distribution or disclosure of
any software created using the Technology. Recipient may only disclose the
Technology to its employees and/or contractors identified in Attachment "1"
whose duties require such access to perform the purposes stated in
paragraph 1 above, and who are obligated to maintain the Technology in
confidence. Recipient shall keep the Technology and all copies thereof only
at the site(s) identified in Attachment "1" ("Secure Site"). At each Secure
Site, Recipient shall place the Technology on a computer system located in
a secure room ("Secure System"). Once loaded on the Secure System,
Recipient shall place the Technology (and backup copy) in a secure vault or
desk in the secure room. The secure vault or desk shall remain locked at
all times, and only those individuals identified in Attachment "1" shall
have access to the secure vault or desk. The Secure System shall be
password protected, accessible only by those individuals identified in
Attachment "1", and shall not be connected to any company-wide intranet or
the internet. This obligation of confidentiality shall not apply to
information which is shown by contemporaneous documentation to be (i)
available to the public other than by breach of this Agreement by
Recipient; (ii) rightfully received by Recipient from a third party without
breach of a duty to Intel; (iii) independently developed by Recipient's
employees without access to the Technology; or (iv) known to Recipient
prior to first receipt from Intel.
5. NO OBLIGATION. Recipient shall have no duty to purchase or license any
product from Intel. Intel and its suppliers shall have no obligation to
provide support for, or develop a final version of, the Technology or to
license any version of it.
6. WARRANTY DISCLAIMER. INTEL AND ITS SUPPLIERS MAKE NO WARRANTIES WITH
RESPECT TO TECHNOLOGY, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
TECHNOLOGY IS PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND.
7. LIMITATION OF LIABILITY. INTEL AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR
ANY PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF PROFITS, INTERRUPTION OF
BUSINESS OR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER
CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, STRICT LIABILITY OR
OTHERWISE. INTEL AND ITS SUPPLIERS DISCLAIM ALL LIABILITY, INCLUDING
LIABILITY FOR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS RELATING TO
THE TECHNOLOGY PROVIDED UNDER THIS AGREEMENT.
14.
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8. REPRESENTATIONS. Each party warrants it has sufficient rights to enter into
this Agreement. Neither party makes any representation as to third-party
patent rights which may be required to be licensed in order to make, use,
or sell any product which may be based on information or materials provided
herein, and each party is specifically cautioned that such licenses may be
required.
9. EXPIRATION. This Agreement shall terminate on the expiration date set forth
above, or when the parties execute a broader license to the Technology
(whichever event occurs first), except for paragraphs 4, 6 and 7, which
shall survive termination or expiration. Intel may terminate this Agreement
immediately after a breach by Recipient. In the event this Agreement is
terminated, Recipient shall promptly return all Confidential Information
received under this Agreement.
10. GENERAL.
Controlling Law. Any claim arising under or relating to this Agreement
shall be governed by the internal substantive laws of the State of
Delaware, without regard to principles of conflict of laws. Each party
hereby agrees to jurisdiction and venue in the courts of the State of
Delaware or federal courts located in Delaware, for all disputes and
litigation arising under or relating to this Agreement. This provision is
meant to comply with 6 Del. C. Section 2708(a).
Remedies. Recipient acknowledges that any disclosure, commercialization, or
public use of the Technology would cause irreparable injury to Intel and
consents to the grant of an injunction by any court of competent
jurisdiction in the event of a threatened breach.
Nonassignment. Recipient's rights and duties hereunder may not be
sublicensed, assigned or transferred without Intel's prior written consent.
Entire Agreement. This Agreement contains the entire agreement of the
parties with respect to this subject matter and may not be modified or
changed in any manner except by a writing executed by the parties. All
prior discussions and negotiations are superseded by this Agreement.
RECIPIENT: INTEL CORPORATION
By: _________________________ By: _________________________
Name: _________________________ Name: _________________________
Title: _________________________ Title: _________________________
Date: _________________________ Date: _________________________
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RESTRICTED USE LICENSE AGREEMENT
(Confidential)
Attachment "1"
1. Intel Technology
The Technology includes the following items:
- In software (binary) form:
- IA-64 Simulator
- C/C++ Compiler
- Assembler
- Static Linker
- Disassembler
- In document form:
- Sample implementation of Stack Unwinding for IA-64
- IA-64 Intel Assembler User's Guide
- IA-64 EM Assembly Language Reference Guide
- IA-64 ISA Simulator User's Guide
- IA-64 OS Writer's Guide
Secure Site
The Technology shall be kept only at the following site(s):
_____________________________
_____________________________
_____________________________
Recipient's Employees and/or Contractors
The Technology shall be accessible only by the following Recipient employees
and/or contractors:
_______________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
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PROJECT PLAN
EXHIBIT "C"
Confidential treatment has been requested by the Registrant for this page. The
omitted portions have been separately filed with the Commission.
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Confidential treatment has been requested by the Registrant for this page. The
omitted portions have been separately filed with the Commission.
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Confidential treatment has been requested by the Registrant for this page. The
omitted portions have been separately filed with the Commission.
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Confidential treatment has been requested by the Registrant for this page. The
omitted portions have been separately filed with the Commission.
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Confidential treatment has been requested by the Registrant for this page. The
omitted portions have been separately filed with the Commission.
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VA RESEARCH LINUX IA-64 PORTING LICENSE AGREEMENT
EXHIBIT "D"
CERTIFICATE OF ORIGINALITY
FOR NON-GPL SOFTWARE
This Exhibit "F" must be completed by Developer when furnishing software
material (program product or offering and related documentation, or other
software material) for Intel.
One Exhibit "F" can cover one complete product, even if that product includes
multiple modules. However, a separate Exhibit "F" must be completed for the code
and another for its related documentation (if any.)
Please leave no questions blank. Write "not applicable" or "N/A" if a question
is not relevant to the furnished software material.
==========================
1. Name of the software material (provide complete identification, including
version, release and modification numbers for programs and documentation):
_________________________________________________________________________
2. Was the software material or any portion thereof written by any party other
than Developer, or Developer employees working within their job assignment?
Yes No
_____ _____
If Yes, provide the following information:
(a) Indicate if the whole software material or only a portion thereof was
written by such party, and identify such portion:
_________________________________________________________________________
_________________________________________________________________________
(b) Specify for each involved party (unless the software is subject to the
GPL):
(i) Name:
___________________________
(ii) Company:
___________________________
(iii) Address:
___________________________
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(iv) If the party is a company, how did it acquire title to the
software material (e.g., software material was written by
company's employees as part of their job assignment)?
________________________________________________________________
(v) If the party is an individual, did s/he create the software
material while employed by or under contractual relationship
with another party?
Yes ____ No ____
If Yes, provide name and address of the other party and
explain the nature of the obligations:
________________________________________________________________
________________________________________________________________
________________________________________________________________
(c) How did Developer acquire title to the software material written
by the other party?
________________________________________________________________
3. Was the software material or any portion thereof derived from any
third party's pre-existing material(s)?
Yes ____ No ____
If Yes, provide the following information for each of the pre-existing
materials:
(a) Name of the materials:
________________________________________________________________
(b) Owner:
________________________________________________________________
(c) How did Developer get the right to use the pre-existing
material(s)?
________________________________________________________________
4. Identify below, or in an attachment, any other circumstances which
might affect Intel's ability to reproduce and market this software
product, including:
(a) Confidentiality or trade secrecy of pre-existing materials:
________________________________________________________________
(b) Known or possible royalty obligations to others:
________________________________________________________________
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(c) Pre-existing material developed for another party or customer
(including government) where Developer may not have retained full
rights to the material:
________________________________________________________________
(d) Materials acquired from a person or company possibly not having
title to them:
________________________________________________________________
(e) Other circumstances:
________________________________________________________________
_______________________________
DEVELOPER
_______________________________
Signature
_______________________________
Printed Name
_______________________________
Title
_______________________________
Date
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