EXHIBIT 10.16
CONFIDENTIAL
This technology license agreement ("Agreement") is made the 2nd day of June
1999 ("Effective Date")
BETWEEN
ARM LIMITED whose registered office is situated at 00 Xxxxxxxx Xxxx,
Xxxxxxxxx XX0 0XX, Xxxxxxx ("ARM");
and
VIRATA LTD whose principal place of business is situated at Xxxxx Xxxxxxxx
Xxxxx, 0 Xxxxx Xxxxxxxx, Xxxxxxxxxx Xxxx, Xxxxxxxxx, XX0 0XX ("Virata")
hereunder procuring rights and accepting obligations for itself and its
Subsidiaries (as defined below).
WHEREAS
LICENSEE has requested ARM and ARM has agreed to license LICENSEE to
manufacture and distribute certain ARM Compliant Products (as defined
below) on the following terms and conditions.
Therefore, in consideration of the mutual representations, warranties,
covenants, and other terms and conditions contained herein, the parties
agree as follows:
1. Definitions
1.1 "ARM7TDMI-S" shall mean the ARM core as described and identified in the ARM
technical reference manual for ARM7TDMI-S (ARM-DDI-0084).
1.2 "ARM Core" shall mean the ARM7TDMI core as described and identified in the
ARM7TDMI datasheet (ARM-DDI-0029).
1.3 "ARM Compliant Product" shall mean any single silicon chip developed by
LICENSEE which contains at a minimum:
(i) an Implementation Compliant Core; and
(ii) additional LICENSEE or customer circuitry which adds significant
functionality.
1.4 "ARMv4T Instruction Sets" shall mean both the ARM instruction set and THUMB
instruction set as each are defined in the ARM Architecture Reference
Manual (ARM-DDI-0100).
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1.5 "Authorised Device(s)" shall mean each or all, as the context admits, of
up to * Unique ARM Compliant Products.
1.6 "Authorised Distributor" shall mean those distributors appointed, in
writing, by LICENSEE.
1.7 "AVS" shall mean the ARM Architectural Validation Suite, in binary code
format, identified in Schedule 1 Part B Item B8.
1.8 "Confidential Information" shall mean; (i) any trade secrets relating to
the ARM Core, the PIV Card, the PID Card, the Models, and the Transfer
Materials; (ii) any information designated in writing by either party, by
appropriate legend, as confidential; and (iii) any information which is
first disclosed orally but designated as confidential at the time of
disclosure and is thereafter reduced to writing for confirmation and sent
to the other party within thirty (30) days after its oral disclosure and
designated, by appropriate legend, as confidential; and (iv) the terms and
conditions of this Agreement.
1.9 "Design Rules" shall mean the UMC 0.25um 2.5v/3.3v 2P5M Mixed Mode Process
Topological Layout Rules spec no. G-03-mixedmode25 2.5v/3.3/-2P5M-TLR
version 0.1 dated 03 October 1998, subject to any waivers thereto agreed
between the parties, and subject to the port being technically feasible
and receipt of reasonable notice and the agreement between the parties of
reasonable porting fees, the UMC 0.18 micron design rules.
1.10 "Design Win Event" shall mean when LICENSEE commences design work for the
development of any Unique ARM Compliant Product.
1.11 "End User License" shall mean a license agreement substantially conforming
to that agreement set forth in Schedule 8.
1.12 "Functional Test Vectors" shall mean one of the sets of test vectors
identified in Schedule 1 Part B items B6, B11 and B12.
1.13 "Implementation Compliant Core" shall mean an implementation of the ARM
Core which:
(i) executes each and every instruction in the ARMv4T Instruction Sets;
(ii) executes no additional instructions to those contained in the ARMv4T
Instruction Sets;
________________________
* Pursuant to a request for confidential treatment, selected information in this
document has been omitted and separately filed with the Securities and
Exchange Commission.
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(iii) exhibits a Xxx Xxxxxxx Architecture;
(iv) exhibits a Pipeline Length of three (3);
(v) is Single Issue;
(vi) executes all instructions at an identical rate of cycles per
instruction ("CPI") to that specified in the ARM7TDMI datasheet
(ARM-DDI-0029);
(vii) implements the programmer's model as identified in the ARM
Architecture Reference Manual (ARM-DDI-0100);
(viii) passes the Functional Test Vectors; and
(ix) has been manufactured on a process on which a Test Chip has been
verified in accordance with the provisions of Clause 3.
1.14 "Intellectual Property" shall mean any patents, patent rights, trade
marks, service marks, registered designs, topography or semiconductor
maskwork rights, applications for any of the foregoing, copyright, know-
how, unregistered design right, trade secrets and know-how and any other
similar protected rights in any country, which are taken into use in the
design, use or production of the ARM Core, PID Card, PIV Card, the Models,
or Transfer Materials.
1.15 "LICENSEE" shall mean Virata and its Subsidiaries.
l.16 "Models" shall mean: (i) the source code of the programs identified in
Schedule I Part F Item Fl; (ii) the object code and such source code of
the programs identified in Schedule 3 part A as may be necessary (at ARM's
absolute discretion) to allow the support of multiple releases of the
specified simulator; and (iii) subject to the payment by LICENSEE of the
fee(s) set out in Clause 7.4, the object code and such source code of the
programs identified in Schedule 3 part B as may be necessary (at ARM's
absolute discretion) to allow the support of multiple releases of the
specified simulator; together with such Updates thereof, if any, as are
developed by or for ARM.
1.17 "Pipeline Length" shall mean the number of clocked stages through which
each single-cycle instruction must pass to complete the execution of such
instruction.
1.18 "PID Card" shall mean the hardware identified in Schedule l Part E item
E13.
1.19 "PIV Card" shall mean the hardware identified in Schedule I Part E item
El1.
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1.20 "Quarter" shall mean each calendar quarter ending the 31st March, 30th
June, 30th September and 31st December of any year.
1.21 "Royalty Premium" shall mean * for each unit of ARM Compliant Product
distributed by Licensee as at the date of election in accordance with
Clause 10.1.
1.22 "Royalty Report" shall mean a report containing no less information than
set out in Schedule 6 Exhibit 1.
1.23 "Single Issue" shall mean that only one instruction is issued for
execution within the integer unit in any single clock cycle (where for the
purposes of this definition clock shall mean the clock that advances the
pipeline).
1.24 "Software Development Toolkit" shall mean the software development toolkit
version 2.5 with software process order reference number SD250-KT-00000.
1.25 "Subsidiary" means any company the majority of whose voting shares is now
or hereafter owned or controlled, directly or indirectly, by a party
hereto or any company a majority of whose voting shares is now or
hereafter owned or controlled, directly or indirectly, by any of the
aforementioned entities. A company shall be considered a Subsidiary only
so long as such control exists.
1.26 "Test Chip" shall mean a device which complies with the test chip
specification set forth in Schedule 1 Part E item El.
1.27 "Test Chip Functional Test Vectors" shall mean those test vectors
identified in Schedule 1 Part E item E4.
1.28 "Test Chip Device Characterization Vectors" shall mean those test vectors
identified in Schedule I Part E items E5.
1.29 "Trademarks" shall mean the trademarks, service marks and logos set forth
in Schedule 5.
1.30 "Transfer Materials" shall mean that technical information with respect to
the ARM Core as set forth in Schedule 1.
1.31 "Updates" shall mean any bug fixes or enhancements to the Models or
modifications to the Transfer Materials the incorporation of which ARM, in
its absolute discretion, decides does not cause to be created a new
product.
________________________
* Pursuant to a request for confidential treatment, selected information in this
document has been omitted and separately filed with the Securities and
Exchange Commission.
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1.32 "Unique ARM Compliant Product" shall mean an ARM Compliant Product which;
(i) is functionally different from any other ARM Compliant Product
manufactured by or for LICENSEE, except that any ARM Compliant Product
created only as a result of a bug fix (which means a change to an ARM
Compliant Product which causes it to operate in accordance with its
original specification) to an existing ARM Compliant Product shall not be
deemed to be functionally different notwithstanding that such bug fix has
resulted in a change in the functionality of the device; (ii) is
manufactured by or for LICENSEE; and (iii) has a part number which is
different from any other ARM Compliant Product manufactured by or for
LICENSEE. For the avoidance of doubt an optical shrink of an existing ARM
Compliant Product shall not be deemed to be a Unique ARM Compliant
Product.
1.33 "Use" shall mean the following limited acts in respect of the object code
of the Models;
(i) use of (including copying the object code of the Models to the
extent that such copying is incidental to such use) the object code
of the Models, or any part thereof; and
(ii) making one copy of the object code of the Models solely for backup
and archival purposes.
Use shall specifically exclude; (a) the translation, adaptation,
arrangement or other alteration of the object code of the Models except as
allowed by local legislation implementing Article 6 of the EC Directive on
the legal protection of computer programs (91/250/EEC) and then only to
the extent necessary to achieve interoperability of an independently
created program with other programs; and (b) the copying adapting or
reverse compiling of the object code of the Models for the purpose of
error correction.
1.34 "Xxx Xxxxxxx Architecture" shall mean a microprocessor architecture which
dictates that the instruction stream for the integer unit shares the same
port with the data stream for such integer unit.
2. Licence
2.1 ARM hereby grants to LICENSEE, under ARM's Intellectual Property rights
(including any intellectual property rights for which ARM has the right to
grant sub-licenses), a perpetual (subject to Clause 18.2), non-
transferable (subject to Clause 20.3), non-exclusive, world-wide right and
licence to:
(i) use the PIV Card, the PID Card and use and copy the Transfer
Materials and/or any Intellectual Property only for the purposes of
designing, having designed (subject to the provisions of Clause 2.2),
manufacturing and having manufactured (subject to the provisions of
Clause 2.4) the Authorised Devices;
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(ii) sell, supply and distribute the Authorised Devices manufactured in
accordance with Clause 2.1(i) only, and authorise LICENSEE's
Authorised Distributors to do the same; and
(iii) modify, copy, distribute and have distributed the documentation
identified in Schedule 1 Part A item Al.
2.2 LICENSEE may exercise its right to have developed Authorised Devices if
LICENSEE ensures that any third party developer ("Developer") subcontracted
by LICENSEE agrees;
(i) to be bound by obligations of confidentiality no less restrictive
than those contained in this Agreement; and
(ii) to supply the design of any Authorised Device solely to
LICENSEE.
2.3 If any Developer breaches the provisions of confidentiality referred to in
Clause 2.2(i) and LICENSEE fails to use its reasonable efforts to remedy
the breach and prevent further breaches by the Developer and such failure
has an adverse effect upon ARM, then LICENSEE agrees that such breach shall
be treated as a material breach of this Agreement by LICENSEE which is
incapable of remedy thus entitling ARM to summarily terminate this
Agreement in accordance with the provisions of Clause 18.2. LICENSEE shall
hold ARM harmless from and keep ARM indemnified against all and any loss,
liability, costs, damages, expenses (including the fees of lawyers and
other professionals), suffered, incurred or sustained as a result of or in
relation to such breach and ARM undertakes to LICENSEE that it shall use
its reasonable efforts to mitigate any such loss, liability, costs,
damages, expenses suffered, incurred or sustained by it.
2.4 LICENSEE may exercise its right to have the Authorised Devices manufactured
by a subcontracted manufacturer ("Manufacturer") in accordance with the
provisions of Clause 2.1(i) if:
(i) LICENSEE notifies ARM of the identity of such Manufacturer not less
than thirty (30) days prior to first prototype production by the
Manufacturer; and
(ii) LICENSEE ensures that each Manufacturer agrees (a) to be bound by
obligations of confidentiality no less restrictive than those
contained in this Agreement; and (b) to supply the Authorised Devices
solely to LICENSEE.
2.5 If any Manufacturer breaches the provisions of confidentiality referred to
in Clause 2.4(ii), and LICENSEE fails to use its reasonable efforts to
remedy the breach and prevent further breaches by the Manufacturer and such
failure has an adverse effect upon ARM, then LICENSEE agrees that such
breach shall be treated as a material breach of this Agreement by LICENSEE
which is incapable of remedy thus entitling ARM to summarily terminate this
Agreement in accordance with the provisions of Clause 18.2. LICENSEE shall
hold ARM harmless from and keep ARM indemnified against all and
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any loss, liability, costs, damages, expenses (including the fees of
lawyers and other professionals), suffered, incurred or sustained as a
result of or in relation to such breach and ARM undertakes to LICENSEE that
it shall use its reasonable efforts to mitigate any such loss, liability,
costs, damages, expenses suffered, incurred or sustained by it.
2.6 No right is granted to LICENSEE to:
(i) sub-license the rights licensed to LICENSEE pursuant to Clause 2.1;
or
(ii) distribute any ARM Compliant Product prior to verification in
accordance with Clause 3 except that in the event that it is the
intention of LICENSEE, and LICENSEE does proceed, to verify any ARM
Compliant Product in accordance with Clause 3, LICENSEE may
distribute a maximum of * prototype units of such device without
having verified such device provided that LICENSEE provides written
evidence to ARM that; (a) the recipient of such devices is aware
that such device has not passed the verification process; and (b)
the recipient has agreed to keep the recipient's use of the non
verified device confidential.
2.7 Save as licensed in Clause 2.1, LICENSEE acquires no right, title or
interest in and to the ARM Core, Transfer Materials and Intellectual
Property. In no event shall the licenses granted in Clause 2.1 be construed
as granting to LICENSEE, expressly or by implication, estoppel or
otherwise, a license to use any ARM technology except the PIV Card, the PID
Card and the Transfer Materials.
3. Verification of Implementation Compliant Core
3.1 Except where:
(i) the parties mutually agree otherwise; or
(ii) in respect of the processes used for volume manufacture of the first
* Unique ARM Compliant Products developed by LICENSEE; or
(iii) in respect of the process used for volume manufacture of the * Unique
ARM Compliant Product PROVIDED THAT the process used for volume
manufacture is the same as one of the processes used for the
manufacture of any one of the first * Unique ARM Compliant Products;
LICENSEE shall develop, manufacture (or have manufactured) a Test Chip on
each process used by or for LICENSEE for volume manufacture of ARM
Compliant Products.
________________________
* Pursuant to a request for confidential treatment, selected information in this
document has been omitted and separately filed with the Securities and
Exchange Commission.
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3.2 LICENSEE shall, in respect of each Test Chip developed and manufactured
pursuant to the provisions of Clause 3.1, run:
(i) the Test Chip Functional Test Vectors on each Test Chip and deliver
to ARM a copy of the log ("Log Results") generated by running the
Test Chip Functional Test Vectors together with five (5) samples of
the Test Chip; and
(ii) the AVS on each Test Chip (by means of a PIV Card) and deliver to ARM
a copy of the log ("AVS Results") generated by running the AVS.
ARM may, at ARM's discretion, exercise the right to run each or both of the
Test Chip Functional Test Vectors and the AVS on any Test Chip. An ARM Core
shall be verified upon;
(a) ARM's acceptance of either the Log Results; (a) delivered by
LICENSEE; or (b) generated by ARM. The Log Results shall be accepted
when they indicate that no errors have been detected or where any
errors detected have been jointly agreed, in good faith, and a waiver
agreed between the parties; and
(b) ARM's acceptance of either the AVS Results (a) delivered by LICENSEE
or (b) generated by ARM. The AVS Results shall be accepted when they
indicate that no differences have been detected between the AVS
Results and the AVS reference file supplied by ARM or where any
errors detected have been jointly agreed, in good faith, and a waiver
agreed between the parties.
ARM shall notify LICENSEE, in writing, within * days of delivery by
LICENSEE of the Log Results and Test Chip samples to ARM ("Verification
Period"), whether a Test Chip has been verified or has failed the
verification process. In the event that any Test Chip fails the
verification process, ARM shall provide details of the errors which cause
the failure to LICENSEE and LICENSEE shall endeavour to correct the errors.
The parties shall repeat the above process until either; (i) the Test Chip
is verified; or (ii) LICENSEE withdraws the Test Chip from the verification
process. In the event that ARM fails to confirm the result of the
verification process within the Verification Period, the Test Chip subject
to the verification process shall be deemed verified.
3.3 Provided that; (i) for a certain process a Test Chip has been verified in
accordance with the provisions of Clause 3.2; and (ii) the ARM Compliant
Product incorporating the ARM Core incorporated into such Test Chip and
manufactured on that certain process runs the Functional Test Vectors and
they indicate that no errors have been detected (or where any errors
detected have been jointly agreed, in good faith, and a waiver agreed
________________________
* Pursuant to a request for confidential treatment, selected information in this
document has been omitted and separately filed with the Securities and
Exchange Commission.
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between the parties), LICENSEE may distribute such ARM Compliant Product without
further verification.
3.4 LICENSEE shall provide to ARM, free of charge, within * days of
verification in accordance with Clause 3.2, * unmarked samples of each Test
Chip manufactured by or for LICENSEE used by or for LICENSEE for volume
manufacture of ARM Compliant Products. There shall be no restriction on
ARM's use of such samples provided that ARM shall not reverse engineer any
Test Chips provided by LICENSEE under this Clause 3.4.
4. Models License
4.1 ARM hereby grants to LICENSEE, a perpetual (subject to Clause 18.2), non-
transferable (subject to Clause 20.3), non-exclusive, world-wide licence
to;
(i) copy and use internally, the Models and related documentation; and
(ii) use, copy and distribute, and sub-license (provided that the end user
agrees to be bound by the End User Licence) the Use of the object
code of the Models identified in Schedule 3 Part A.
4.2 For the period ending * from the Effective Date, and thereafter subject to
availability, for the term of this Agreement LICENSEE may, upon payment of
a Model Option Fee (as defined in Clause 7.4) per additional Model, take
delivery of and extend the licence granted under Clause 4.1 to include any
of the Models specified in Schedule 3 Part B.
4.3 For the avoidance of doubt no right is granted to LICENSEE to sub-license
the right to sell, supply or otherwise distribute the Models.
5. Ownership of the Models
5.1 In no event shall the license grants set forth in Clauses 2.1, 4.1 and 4.2
be construed as granting LICENSEE, expressly or by implication, estoppel or
otherwise, a licence to any ARM technology other than the Models and
related documentation.
5.2 Except as licensed to LICENSEE in Clauses 2.1, 4.1, and 4.2 all right,
title and interest in and to the Models and related documentation shall
remain vested in ARM.
5.3 LICENSEE shall reproduce and not remove or obscure any notice incorporated
in the Models or related documentation by ARM to protect ARM's Intellectual
Property or to
________________________
* Pursuant to a request for confidential treatment, selected information in this
document has been omitted and separately filed with the Securities and
Exchange Commission.
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acknowledge the copyright and/or contribution of any third party developer.
LICENSEE shall incorporate corresponding notices and/or such other markings
and notifications as ARM may reasonably require on all copies of Models and
related documentation used or distributed by LICENSEE.
6. Trademark License
6.1 ARM hereby grants to LICENSEE a non-transferable (subject to Clause 20.3),
non-exclusive, royalty-free, world-wide license to use the Trademarks in
connection with the promotion and sale of ARM Compliant Products.
6.2 LICENSEE shall use the Trademarks, in accordance with ARM's guidelines as
set out in Schedule 5 ("Trademark Guidelines"). ARM shall have the right to
revise Schedule 5 and the Trademark Guidelines (including the right to add
further trademarks or modify the Trademarks) provided that such revisions
are made in respect of the Trademark Guidelines issued to all licensees of
the Trademarks. Any such revisions shall be effective upon printed
materials and products to be produced or manufactured after * from receipt
of ARM's written notice specifying the revisions to LICENSEE.
6.3 LICENSEE shall submit samples of documentation, packaging, and promotional
or advertising materials bearing the Trademarks to ARM from time to time in
order that ARM may verify compliance with the Trademark Guidelines. In the
event that any documentation, packaging, promotional or advertising
material fails to comply with the Trademark Guidelines, ARM shall notify
LICENSEE and LICENSEE shall rectify such documentation, packaging, and
promotional or advertising materials so as to comply with the Trademark
Guidelines and cease using any such non-compliant materials within * of the
date of ARM's notice. Any documentation, packaging, and promotional or
advertising materials not rejected for failing to comply with the Trademark
Guidelines by ARM within * after delivery to ARM shall be deemed approved.
6.4 LICENSEE agrees to assist ARM in maintaining the validity of the
Trademarks. Upon ARM's request, LICENSEE shall provide, free of charge, a
reasonable number of samples of the use of the Trademarks for the purpose
of trademark registration or renewal. LICENSEE shall provide reasonable
assistance to ARM in the application and maintenance of any registration
for the Trademarks in the name of ARM. Upon request, LICENSEE shall at
ARM's expense execute any documents required by the applicable laws of any
jurisdiction for the purpose of registering and/or maintaining the
Trademarks. LICENSEE shall have no additional financial responsibility
other than the foregoing with respect to assisting ARM in maintaining the
validity of the Trademarks, and LICENSEE
________________________
* Pursuant to a request for confidential treatment, selected information in this
document has been omitted and separately filed with the Securities and
Exchange Commission.
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shall not be obligated to incur any material expenses pursuant to its
obligations under this Clause 6.4. Any and all registrations for the
Trademarks shall be procured by and for ARM, at ARM's expense.
6.5 Except as provided by the terms of this Agreement, LICENSEE shall not use
or register any trademark, service xxxx, device or logo, any of the
Trademarks or any word or xxxx confusingly similar to any of the
Trademarks, in any jurisdiction.
7. Fees and Royalties
7.1 In consideration for the porting services provided under Clause 8.1,
LICENSEE shall pay, to ARM the fees ("Porting Fees") set out in Schedule 7
Part F. In the event that the LICENSEE elects to use an alternative set of
design rules from the Design Rules then the parties shall negotiate fees in
good faith for ARM to port the ARM Core to alternative design rules.
7.2 In consideration for the licences granted under Clause 2.1, LICENSEE shall
pay to ARM;
(i) until an election is made in accordance with the provisions of Clause
10.1, after which the obligation to pay the Technology Licence Fees
under this Clause 7.2 shall be waived in respect of ARM Compliant
Products developed by or for LICENSEE after the date of such
election, a fee (each a "Technology Licence Fee") for each Unique ARM
Compliant Product in accordance with the provisions of Schedule 7
Part A; and
(ii) until an election is made by LICENSEE in accordance with the
provisions of Clause 10.1 after which the provisions of Clause
7.3(ii) shall supersede the provisions of this Clause 7.2(ii), for
each unit of ARM Compliant Product sold, supplied or distributed by
LICENSEE or any Authorised Distributor, a royalty ("Running Royalty")
of * per unit.
7.3 Upon making an election in accordance with the provisions of Clause 10.1,
LICENSEE shall pay to ARM; (i) a fee ("Option Fee") as set out in Schedule
7 Part G; and (ii) for each unit of ARM Compliant Product sold, supplied or
distributed by LICENSEE or any Authorised Distributor after such election a
royalty ("Running Royalty") of * per unit.
7.4 In consideration for the licences granted under Clause 4.1, LICENSEE shall
pay the fee ("Model Fee") as set out in Schedule 7 Part B. If LICENSEE
elects to extend the licence to cover additional Models in accordance with
the provisions of Clause 4.2, then for each
________________________
* Pursuant to a request for confidential treatment, selected information in this
document has been omitted and separately filed with the Securities and
Exchange Commission.
Page 11
additional Model licensed by LICENSEE from ARM, LICENSEE shall pay an
additional fee ("Model Option Fee") as set out in Schedule 7 Part I.
7.5 In consideration of the Support (as defined in Clause 12), LICENSEE shall
pay, to ARM, the fee ("Support Fees") set out in Schedule 7 Part D.
7.6 In consideration of the Training (defined in Clause 13), LICENSEE shall
pay, to ARM, the fee ("Training Fee") set out in Schedule 7 Part C.
7.7 In consideration of the Maintenance provided under Clause 11 in respect of
each Model, LICENSEE shall pay, to ARM, the fee (each a "Maintenance Fee")
set out in Schedule 7 Part E.
7.8 For the avoidance of doubt, in no event shall the Technology Licence Fee
be construed as being an advance payment of Running Royalties and except
as provided in Schedule 7 Part G, no right of set off of Running Royalties
against fees shall exist.
7.9 Running Royalties due to ARM under this Agreement shall be paid in
accordance with the terms set forth in Schedule 6.
7.10 LICENSEE shall keep all records of account as are necessary to demonstrate
compliance with its obligations under this Clause 7 for a period of six
(6) years from the date of each Royalty Report.
7.11 ARM shall have the right for representatives of a firm of independent
Chartered Accountants to which LICENSEE shall not unreasonably object
("Auditors"), to make an examination and audit, by prior appointment
during normal business hours, not more frequently than once annually, of
all records and accounts as may under recognised accounting practices
contain information bearing upon (i) the number of units of ARM Compliant
Product sold or distributed by LICENSEE under this Agreement; (ii) the
amounts of Running Royalties payable to ARM under this Clause 7; and (iii)
the occurrence of any Design Win Event. The Auditors will report to ARM
only upon whether the Running Royalties paid to ARM by LICENSEE were or
were not correct, and if incorrect, what are the correct amounts for the
Running Royalties. LICENSEE shall be supplied with a copy of or sufficient
extracts from any report prepared by the Auditors. The Auditors report
shall (in the absence of clerical or manifest error) be final and binding
on the parties. Such audit shall be at ARM's expense unless it reveals an
underpayment or overpayment of Running Royalties of * or more, in which
case LICENSEE shall reimburse ARM for the costs of such audit. LICENSEE
shall make good any underpayment of royalties forthwith. If the audit
identifies that LICENSEE has
________________________
* Pursuant to a request for confidential treatment, selected information in this
document has been omitted and separately filed with the Securities and
Exchange Commission.
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made an overpayment, such overpayment will be credited to the next such
payment or payments to be made by LICENSEE.
7.12 Any income or other tax which LICENSEE is required by law to pay or
withhold on behalf of ARM with respect to any licence fees and/or
royalties payable to ARM under this Agreement shall be deducted from the
amount of such licence fees and/or royalties otherwise due, provided,
however, that in regard to any such deduction, LICENSEE shall give to ARM
such assistance as may be necessary to enable or assist ARM to claim
exemption therefrom, or credit therefor, and shall upon request furnish to
ARM such certificates and other evidence of deduction and payment thereof
as ARM may properly require.
7.13 LICENSEE shall pay all fees and royalties properly due to ARM under the
terms of this Agreement within receipt of ARM's pro-forma invoice therefor
(the "Due Date").
7.14 If any sum under this Agreement is not paid by the Due Date, then (without
prejudice to ARM's other rights and remedies) ARM reserves the right to
charge interest on such sum on a day to day basis (as well after as before
any judgment) from the Due Date to the date of payment at the rate of *
per annum above the base rate of Barclays Bank PLC from time to time in
force.
8. Technology Transfer, Delivery and Production Costs
8.1 The layout database in GDSII format (Item Cl Part C of Schedule 1) for the
ARM Core delivered to LICENSEE shall conform to the Design Rules.
8.2 ARM shall deliver the Transfer Materials and Models on the later of
payment of the pro forma invoices in accordance with Clause 7.13, and the
delivery dates set out in Schedule 2. ARM shall only be obliged to carry
out further ports of the ARM Core subject to the agreement between the
parties of additional porting fees.
8.3 Unless otherwise agreed in writing, delivery shall take place at Mount
Pleasant House, 2 Xxxxx Xxxxxxxx, Xxxxxxxxxx Xxxx, Xxxxxxxxx, XX0 0XX,
marked for the attention of Xxxxx Xxxxxx.
8.4 Except as expressly set out in Clause 8.1, ARM shall not be responsible
for any recoverable or non-recoverable costs incurred, directly or
indirectly, by LICENSEE in the design translation, processing, or
manufacture of masks and prototypes, characterisation or manufacture of
production quality silicon in whatever quantity.
________________________
* Pursuant to a request for confidential treatment, selected information in this
document has been omitted and separately filed with the Securities and
Exchange Commission.
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9. Contract Administrators
9.1 The parties hereby appoint the following individuals as their respective
contract administrator between ARM and LICENSEE with respect to this
Agreement:
ARM: LICENSEE:
For legal notices:
-----------------
Xxxxx X. XxxXxx Xxxxxx Xxxxxx
ARM Limited Senior VP
00 Xxxxxxxx Xxxx Virata Ltd
Cambridge 2933 Bunker Hill Lane
CB1 9JN Xxxxx 000
Xxxxxxx Xxxxx Xxxxx, XX 00000
cc:
Xxxxxx Xxxxx Xxxxx Xxxxxx
Senior Corporate Counsel VP IP Licensing
At the Cambridge address above. At the address below.
For all other issues:
--------------------
Xxxx Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx 2 Mount Pleasant
Maidenhead Huntingdon Road
Berks Cambridge
SL6 8LT XX0 0XX
9.2 The contract administrators identified herein are appointed by the parties
for the receipt and dispatch on their behalf of all communications relating
to this Agreement. The contract administrators shall also be responsible
for the good progress of the parties' performance under this Agreement and
the timely resolution of all technical, administrative and commercial
issues which may arise from time to time during the execution of this
Agreement.
9.3 Each party reserves the right to change its appointment as above upon seven
(7) days written notice to the other party's then current corresponding
liaison.
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10. Core Option A
10.1 LICENSEE may, at any time during the period of * from the Effective Date
elect to convert the restricted use licence granted in Clause 2.1 into a
full (perpetual, subject to termination in accordance with the provisions
of Clause 18.2) license as set out in Clause 10.2. LICENSEE shall make any
such election by; (i) giving written notice to ARM referring to this
Clause 10.1; (ii) payment of a fee ("Option Fee") (as defined in Clause
7.3); (iii) a Royalty Report for the period from the beginning of the
Quarter in which the written notice of election is given to ARM to the
date of such election; (iv) an acknowledgement that the Royalty Rate shall
change in accordance with the provisions of Clause 7.3; and (v) an
acknowledgement that LICENSEE will renegotiate the Support Fees and
Maintenance Fees in good faith to reflect the additional Support that will
be required for a full licence. The date of any election made in
accordance with the provisions of this Clause shall be the date of receipt
by ARM of the notice of election submitted by LICENSEE hereunder.
10.2 If an election is made in accordance with the provisions of Clause 10.1,
then references to the Authorised Devices shall be deemed to refer to any
ARM Compliant Product (mutatis mutandis).
10.3 If an election is made in accordance with the provisions of Clause 10.1,
subsequent to the election in accordance with Clause 10A.1 then at the
date of the election by LICENSEE to convert to a full licence ARM shall no
longer be obligated to provide support and maintenance services (if any)
under the "foundry model" and any deliverables provided by ARM under the
"foundry model" shall be returned to ARM, within * of the date of such
election.
10.4 For the avoidance of doubt if LICENSEE elects to convert the restricted
use licence into a full licence in accordance with the provisions of
Clause 10.1 then such full licence shall continue in accordance with the
terms of this Agreement.
10A Core Option B
10A.1 LICENSEE may, at any time elect to convert the restricted use licence
granted in Clause 2.1 to the ARM7TDMI-S "foundry model" for future ARM
Compliant Products, the LICENSEE shall make any such election by giving
written notice to ARM referring to this Clause 10A.1. The date of any
election made in accordance with the provisions of this Clause shall be
the date of receipt by ARM of the notice of election submitted by LICENSEE
hereunder. If the LICENSEE elects to convert to the "foundry model" then
________________________
* Pursuant to a request for confidential treatment, selected information in
this document has been omitted and separately filed with the Securities and
Exchange Commission.
Page 15
the licence granted under Clause 2.1(i) to use and copy the Transfer
Materials and/or any Intellectual Property only for the purposes of
designing and having designed (subject to the provisions of Clause
2.2), the Authorised Devices shall automatically terminate on the date
of election.
10A.2 The parties recognise that the terms and conditions of the "foundry
model" are currently undefined and accordingly agree that in the event
that if either the "foundry model" is not in place (which shall include
where the "foundry model" is not supported by the foundry used by
LICENSEE to manufacture the Authorised Devices) when the LICENSEE
wishes to develop * Unique ARM Compliant Product, or if the terms in
respect of the royalty payments and license fees for each ARM Compliant
Product are less favourable than those contained in this Agreement then
the LICENSEE shall be entitled to elect to extend the definition of
Authorised Device to include additional ARM Compliant Products subject
to the payment of Technology Licence Fees upon the Design Win Event for
each Unique ARM Compliant Product. The LICENSEE shall make any such
election by giving written notice to ARM referring to this Clause
10A.2. The date of any election made in accordance with the provisions
of this Clause shall be the date of receipt by ARM of the notice of
election submitted by LICENSEE hereunder.
10A.3 If an election is made in accordance with the provisions of Clause
10A.1, then references to the Authorised Devices shall be deemed to
refer to any Unique ARM Compliant Product (mutatis mutandis).
10A.4 Any election by the LICENCEE to convert the restricted use licence in
accordance with Clause 10A.1 or extend the restricted use licence in
accordance with Clause 10A.2, shall be without prejudice to the
LICENSEE's right to convert to the full license in accordance with
Clause 10.1.
10A.5 Notwithstanding the provisions of Clause 10A.2 if at the date LICENSEE
wishes to develop * Unique ARM Compliant Product the "foundry model" is
not supported by the foundry used by LICENSEE to manufacture the
Authorised Devices, then the LICENSEE acknowledges that as soon as the
foundry used to manufacture Authorised Devices by LICENSEE under this
Agreement participates in the "foundry model" then, provided the
LICENSEE has not elected to upgrade to a full licence in accordance
with the provisions of Clause 10.1 then the LICENSEE shall convert to
the "foundry model".
____________________
* Pursuant to a request for confidential treatment, selected information in
this document has been omitted and separately filed with the Securities and
Exchange Commission.
Page 16
11. Models Maintenance
11.1 ARM shall provide to LICENSEE, in respect of the Models, through the
parties' applicable contract administrator, for the period of * from
the Effective Date the following maintenance services ("Maintenance");
(i) to correct, to the extent reasonably possible, any defects in the
Models which cause the Models not to operate in accordance with
the description of the Models' functionality in the applicable
documentation. If ARM determines that such defects are due to
errors in such description, ARM shall promptly issue corrections
to the documentation and shall not be required to alter the
Models provided that LICENSEE is not thereby prevented from
commercially exploiting the Models;
(ii) to provide as available Updates to the Models.
11.2 In notifying ARM of any defects or problems LICENSEE shall, unless
otherwise requested by ARM, use the format set out in Schedule 4 and
shall use such medium as shall from time to time be requested by ARM.
LICENSEE shall provide ARM promptly with any information or assistance
reasonably requested by ARM to enable ARM to provide the Maintenance
hereunder.
11.3 For the avoidance of doubt, ARM's obligation under this Clause 11 is
limited expressly to the provision of the Maintenance solely to
LICENSEE.
11.4 At the end of the period stated in Clause 11.1 fees for the provision
of any Maintenance for any subsequent period shall be determined in
good faith negotiations between the parties. After the expiry of this
initial period, LICENSEE shall be under no obligation to accept further
Maintenance, and ARM shall be under no obligation to provide
Maintenance to LICENSEE and in any event not until fees for any
Maintenance have been agreed and paid.
12. Support
12.1 Subject to LICENSEE's payment of the Support Fees (defined in Clause
7.5), for the period of three (3) years ("Initial Period") from the
Effective Date ARM shall provide to LICENSEE, reasonable telephone and
written consultation pertaining to the operation and application of the
Models, the ARM Core and the Transfer Materials ("Support"), through
the parties' contract administrator.
____________________
* Pursuant to a request for confidential treatment, selected information in
this document has been omitted and separately filed with the Securities and
Exchange Commission.
Page 17
12.2 For the avoidance of doubt, ARM's obligation under this Clause 12 is
limited expressly to the provision of Support solely to LICENSEE.
12.3 The Support provided under this Clause 12 shall be limited to a total
of * person days per annum.
12.4 At the end of the Initial Period (defined in Clause 12.1), or on
election in accordance with Clause 10.1, fees for the provision of any
support for any subsequent period shall be determined in good faith
negotiations between the parties. After the expiry of the Initial
Period, LICENSEE shall be under no obligation to accept further
support, and ARM shall be under no obligation to provide support to
LICENSEE and in any event not until fees for any support have been
agreed and paid.
13. Training
13.1 Subject to availability and LICENSEE's payment of the Training Fee
(defined in Clause 7.6), for the term of this Agreement ARM shall
provide to LICENSEE a four (4)-day standard ARM training course to a
maximum of twelve (12) of LICENSEE's development, operations, customer
service and application engineering personnel ("Training"). LICENSEE
shall reimburse ARM for its out-of-pocket expenses and costs for the
instructor's travel, lodging and meal expenses for training held, at
LICENSEE's request, at LICENSEE's facilities.
13A Software Development Toolkit
13A.1 For the period of one (1) year after the Effective Date and thereafter
subject to availability from ARM, LICENSEE may, at any time during the
term of this Agreement purchase copies of the Software Development
Toolkit at the price stated in Schedule 7 Part H. If the LICENSEE
wishes to purchase any Software Development Toolkits, then the LICENSEE
shall place a purchase order for the number of seats that they wish to
purchase.
13A.2 ARM shall deliver the Software Development Toolkit to LICENSEE at Xxxxx
Xxxxxxxx Xxxxx, 0 Xxxxx Xxxxxxxx, Xxxxxxxxxx Xxxx, Xxxxxxxxx, XX0 0XX
on receipt of payment of the pro forma invoice in accordance with
Clause 7.13.
14. Confidentiality
14.1 Save as provided by Clause 14.3, each party shall maintain in
confidence the Confidential Information disclosed by the other party
and apply security measures no less stringent
____________________
* Pursuant to a request for confidential treatment, selected information in
this document has been omitted and separately filed with the Securities and
Exchange Commission.
Page 18
than the measures that such party applies to protect its own like
information, but not less than a reasonable degree of care, to prevent
unauthorised disclosure and use of the Confidential Information. The
period of confidentiality shall be: (i) indefinite with respect to the
terms of this Agreement, pattern generation tapes and photomasks;
provided, however, that LICENSEE shall have the right to disclose
pertinent clauses of the Agreement to third parties which have entered
into confidentiality agreements with LICENSEE for the purposes of
having ARM Compliant Products designed and/or manufactured for LICENSEE
by such third party; (ii) twenty (20) years from the date of receipt by
LICENSEE with respect to all deliverables identified in the Schedules
hereto as confidential or having limited confidentiality, i.e. denoted
as such by the letters "C" or "L" in the "Status" column, together with
any comparable technical information supplied by ARM to LICENSEE during
the term of this Agreement; and (iii) five (5) years from the date of
receipt of the information by the receiving party with respect to all
other information.
14.2 LICENSEE acknowledges the importance to ARM and sensitivity of the
Confidential Information. In addition, LICENSEE agrees that it shall
not use any of ARM's Confidential Information other than for the sole
purpose of designing, having designed, manufacturing, having
manufactured and distributing ARM Compliant Products.
14.3 In the event that either party qualifies the confidentiality of any of
its Confidential Information in writing by marking such Confidential
Information with the words "Limited Confidentiality", such Confidential
Information may be disclosed to a third party who has entered into a
non-disclosure agreement ("NDA") with the recipient containing
substantially similar terms to this Clause 14. LICENSEE shall have the
right to disclose the layout database in GDSII format (Item Cl Part C
of Schedule 1) to a Manufacturer (defined in Clause 2.4) under an NDA
containing substantially similar terms to this Clause 14 for the
purposes of having ARM Compliant Products manufactured for LICENSEE by
such Manufacturer.
14.4 The provisions of this Clause shall not apply to information which:
(i) is known and has been reduced to tangible form by the receiving
party prior to disclosure by the other party; or
(ii) is published or otherwise made available to the public other
than by a breach of this Agreement by a party hereto; or
(iii) is disclosed to the receiving party by a third party having the
lawful right to make such disclosure; or
(iv) is independently conceived by the receiving party provided that
the receiving party is able to provide evidence of such
independent conception in the form of written records; or
Page 19
(v) is released to the receiving party for disclosure to any third
party, other than on a confidential basis, by the disclosing
party in writing; or
(vi) is required by any court or other governmental body; or
(vii) is approved for release not under a NDA designating the
information as Confidential Information; or
(viii) released to a third party by the disclosing party and designated
as non-confidential.
14.5 For the avoidance of doubt, LICENSEE Royalty Reports may be disclosed
to, in confidence, ARM's financial and/or legal advisors. In addition,
ARM may disclose the total unit sales of ARM processor based products
on an quarterly basis provided that the unit sales of such products by
LICENSEE are not separately identifiable.
15. Warranties
15.1 ARM warrants that the Transfer Materials delivered to LICENSEE will be
sufficient for a competent semiconductor manufacturer to produce ARM
Cores which substantially meet the functionality specified in the
applicable datasheet. If the Transfer Materials are not sufficient for
a competent semiconductor manufacturer to produce ARM Cores which meet
the functionality specified in the applicable datasheet ARM shall
correct any errors in the Transfer Materials and deliver such corrected
Transfer Materials to LICENSEE or replace the Transfer Materials at
ARM's discretion. The foregoing sets out LICENSEE's sole and exclusive
remedy for any defect in the Transfer Materials.
15.2 LICENSEE acknowledges that the Models cannot be tested in every
possible operation, and accordingly ARM does not warrant that the
Models will be free from all defects or that there will be no
interruption in its use. However, ARM warrants that the Models will be
complete and comply with the description of its functionality as
specified in the documentation. LICENSEE's sole and exclusive remedy
for any breach of such warranty shall be for ARM, as soon as is
reasonably practicable, to correct any errors in the Models and deliver
such corrected Models to LICENSEE.
15.3 ARM further warrants that to ARM's knowledge and belief, but expressly
without having undertaken any searches for prior art, that:
(i) the ARM Core and Models do not infringe any third party
copyright, maskwork right or trade secret; and
(ii) there are no pending claims that have been made, or actions
commenced, against ARM for breach of any third party copyright,
maskwork right, patent or trade secret; and
Page 20
(iii) ARM, or its applicable licensor, is the owner of the Transfer
Materials and Models to be delivered to LICENSEE; and
(iv) ARM has the right to enter into this Agreement.
15.4 Except as expressly provided in this Agreement, ARM makes no warranties
express, implied or statutory, including, without limitation, the
implied warranties or merchantability or fitness for a particular
purpose with respect to the ARM Core, Models, Intellectual Property and
Transfer Materials.
16. Infringement
16.1 In the event of a suit against LICENSEE based upon a claim that any
portion of the materials delivered by ARM to LICENSEE under this
Agreement (the "Delivered Materials"), when used in accordance with
this Agreement, infringe any patent, copyright, mask work, trademark,
trade secret, or other property right, ARM agrees to defend and
indemnify LICENSEE, at ARM's expense, and to pay costs and damages
finally awarded in any such suit subject to the limitations of this
Clause 16.1, provided that ARM is notified promptly in writing of the
suit and at ARM's request and at its expense is given control of the
suit and all requested reasonable assistance to defend the same. If the
use or sale of any product incorporating, embodying or based upon the
Delivered Materials is enjoined as a result of such suit, ARM, at its
sole option and at no expense to LICENSEE, shall (a) obtain for
LICENSEE the right to use and sell the Delivered Materials; or failing
that (b) shall make a modification of the Delivered Materials so that
the Delivered Materials are no longer subject to such injunction, or
failing that (c) replace the unmodified Delivered Materials, or
infringing portions thereof, with reasonably equivalent non-infringing
products which offer no less functionality. If (a), (b) and (c) are not
available or commercially practical, then ARM shall pay to LICENSEE
compensatory damages subject to the limitations of this Clause 16.1.
The provisions of this Clause 16.1 do not extend to any suit based upon
an infringement or alleged infringement of any patent, copyright, trade
secret, mask work, trademark or other property right by: (a) the
LICENSEE manufacturing process; (b) any modification of the Delivered
Materials not made by ARM; or (c) the use of the Delivered Materials in
combination with other equipment, technology or software not purchased
or licensed from ARM, provided that such claim would not have occurred
but for such combination, modification or enhancement. THE FOREGOING
STATES THE ENTIRE LIABILITY OF ARM WITH RESPECT TO INTELLECTUAL
PROPERTY INFRINGEMENT. IN NO EVENT SHALL ARM BE LIABLE TO LICENSEE FOR
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,
ARM SHALL NOT BE LIABLE TO LICENSEE FOR ANY AMOUNTS IN EXCESS OF, THE
LESSER OF LICENSE FEES PAID UNDER THIS
Page 21
AGREEMENT AND THE SUM OF * IN AGGREGATE FOR ALL CLAIMS ARISING OUT OF
OR IN CONNECTION WITH THE PROVISIONS OF THIS CLAUSE 16.1. THE EXISTENCE
OF MORE THAN ONE CLAIM OR SUIT WILL NOT ENLARGE OR EXTEND THE LIMIT.
LICENSEE RELEASES ARM FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR
DEMANDS IN EXCESS OF THIS LIMITATION.
16.2 In the event of a suit against ARM based in whole or in part upon a
claim that (a) the process used by or on behalf of LICENSEE in
manufacturing products incorporating, embodying or based upon the
Delivered Materials; (b) any ARM Core made by LICENSEE as a result of
modification of the Delivered Materials by or on behalf of LICENSEE; or
(c) the use of the Delivered Materials by LICENSEE in combination with
other equipment, technology or software not purchased or licensed from
ARM (provided that such claim would not have occurred but for such
combination, modification or enhancement), has infringed any patent,
copyright, mask work, trademark, trade secret or other property right,
LICENSEE agrees to defend and indemnify ARM, at LICENSEE expense, and
to pay costs and damages finally awarded in any such suit, provided
that LICENSEE is notified promptly in writing of the suit, and at
LICENSEE request and at its expense is given control of the suit and
all requested reasonable assistance to defend the same. THE FOREGOING
STATES THE ENTIRE LIABILITY OF LICENSEE WITH RESPECT TO INTELLECTUAL
PROPERTY INFRINGEMENT. IN NO EVENT SHALL LICENSEE BE LIABLE TO ARM FOR
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,
LICENSEE SHALL NOT BE LIABLE TO ARM FOR ANY AMOUNTS IN EXCESS OF THE
LESSER OF LICENSE FEES PAID UNDER THIS AGREEMENT AND THE SUM OF * IN
AGGREGATE FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE
PROVISIONS OF THIS CLAUSE 16.2. THE EXISTENCE OF MORE THAN ONE CLAIM OR
SUIT WILL NOT ENLARGE OR EXTEND THE LIMIT. ARM RELEASES LICENSEE FROM
ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS
LIMITATION.
16.3 In the event that there is a final adjudication of infringement, the
liability of ARM for such infringement shall terminate with respect to
all damages regarding the infringing intellectual property arising
after the date of such final adjudication.
____________________
* Pursuant to a request for confidential treatment, selected information in
this document has been omitted and separately filed with the Securities and
Exchange Commission.
Page 22
17. Disclaimer of Consequential Damages
17.1 EXCEPT IN RESPECT OF BREACHES OF CLAUSES 2.3, 2.5 AND 14, IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHETHER SUCH DAMAGES ARE ALLEGED AS A RESULT OF
TORTIOUS CONDUCT OR BREACH OF CONTRACT OR OTHERWISE EVEN IF THE OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH DAMAGES
SHALL INCLUDE BUT SHALL NOT BE LIMITED TO THE COST OF REMOVAL AND
REINSTALLATION OF GOODS, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF USE
OF DATA, INTERRUPTION OF BUSINESS OR OTHER ECONOMIC LOSS BUT NOTHING IN
THIS CLAUSE SHALL OPERATE TO EXCLUDE LIABILITY FOR DEATH OR PERSONAL
INJURY RESULTING FROM EITHER PARTY'S NEGLIGENCE.
18. Term and Termination
18.1 This Agreement shall commence on the Effective Date and continue in
force unless and until terminated in accordance with the provisions of
Clause 18.2.
18.2 Without prejudice to any other right or remedy which may be available
to it, either party shall be entitled summarily to terminate this
Agreement by giving written notice to the other, if the other party:
(i) has committed a material breach of any of its obligations
hereunder which is not capable of remedy; or
(ii) has committed a material breach of any of its obligations
hereunder which is capable of remedy but which has not been
remedied within a period of sixty (60) days following receipt of
written notice to do so; or
(iii) makes any voluntary arrangement with its creditors for the
general settlement of its debts or becomes subject to an
administration order; or
(iv) has an order made against it, or passes a resolution, for its
winding-up (except for the purposes of amalgamation or
reconstruction) or has an encumbrancer take possession or has a
receiver or similar officer appointed over all or substantially
all of its property or assets.
19. Effect of Termination
19.1 Upon termination of this Agreement by ARM pursuant to Clause 18.2, or
by LICENSEE pursuant to Clauses 18.2 (i) or (ii), LICENSEE will
immediately discontinue any use and distribution of all ARM Compliant
Products, Models, Intellectual Property, Transfer Materials and ARM
Confidential Information. LICENSEE shall, at ARM's option, either
destroy or return to ARM any Confidential Information, including any
copies thereof in
Page 23
its possession, together with the Transfer Materials and all copies of
the Models in its possession. Within one month after termination of
this Agreement LICENSEE will furnish to ARM a certificate signed by a
duly authorised representative of LICENSEE that to the best of his or
her knowledge, information and belief, after due enquiry, LICENSEE has
complied with provisions of this Clause. For the avoidance of doubt,
any sub-licenses of the Models granted by LICENSEE prior to the
termination of this Agreement shall survive such termination.
19.2 Upon such termination the provisions of Clauses 1, 7 (to the extent
that any obligation under this Clause remains outstanding), 14, 15, 16,
17, 19 and 20 shall survive termination.
20. General
20.1 All communications between the parties including, but not limited to,
notices, royalty reports, error or bug reports, the exercise of
options, and support requests shall be in the English language.
20.2 All notices which are required to be given hereunder shall be in
writing and shall be sent to the address of the recipient set out in
this Agreement or such other address as the recipient may designate by
notice given in accordance with the provisions of this Clause. Any such
notice may be delivered personally, by commercial overnight courier or
facsimile transmission which shall be followed by a hard copy and shall
be deemed to have been served if by hand when delivered, if by
commercial overnight courier 48 hours after deposit with such courier,
and if by facsimile transmission when dispatched.
20.3 Neither party shall assign or otherwise transfer this Agreement or any
of its rights and obligations hereunder whether in whole or in part
without the prior written consent of the other.
20.4 Neither party shall be liable for any failure or delay in its
performance under this Agreement due to causes, including, but not
limited to, acts of God, acts of civil or military authority, fires,
epidemics, floods, earthquakes, riots, wars, sabotage, third party
industrial disputes and governments actions, which are beyond its
reasonable control; provided that the delayed party: (i) gives the
other party written notice of such cause promptly, and in any event
within fourteen (14) days of discovery thereof; and (ii) uses its
reasonable efforts to correct such failure or delay in its performance.
The delayed party's time for performance or cure under this Clause 20.4
shall be extended for a period equal to the duration of the cause.
20.5 ARM and LICENSEE are independent parties. Neither company nor their
employees, consultants, contractors or agents, are agents, employees or
joint venturers of the other party, nor do they have the authority to
bind the other party by contract or otherwise to any obligation.
Neither party will represent to the contrary, either expressly,
implicitly, by appearance or otherwise.
Page 24
20.6 The parties agree that the terms and conditions of this Agreement shall
be treated as Confidential Information hereunder and shall not be
disclosed without the consent of both parties.
20.7 Failure by either party to enforce any provision of this Agreement
shall not be deemed a waiver of future enforcement of that or any other
provision.
20.8 If any provision of this Agreement, or portion thereof, is determined
to be invalid or unenforceable the same will be enforced to the maximum
extent permissible so as to effect the intent of the parties, and the
remainder of this Agreement will continue in full force and effect.
20.9 The headings to the Clauses of this Agreement are for ease of reference
only and shall not affect the interpretation or construction of this
Agreement.
20.10 This Agreement may be executed in one or more counterparts each of
which shall be deemed an original, but all of which shall constitute
one and the same instrument.
20.11 This Agreement, including all Schedules and documents referenced
herein, constitutes the entire agreement between the parties with
respect to the subject matter hereof, and supersedes and replaces all
prior or contemporaneous understandings or agreements, written or oral,
regarding the subject matter. Except in relation to the Trademark
Guidelines (as defined in Clause 6.2), which may be modified from time
to time by ARM, no amendment to, or modification of, this Agreement
shall be binding unless in writing and signed by a duly Authorised
representative of both parties.
20.12 This Agreement shall be governed by and construed in accordance with
the laws of England. The parties agree to submit to the jurisdiction of
the High Court of Justice, London, England, for the purpose of hearing
and determining any disputes arising out of this Agreement.
20.13 Neither party shall make any press release or similar public
announcement relating to the existence of this Agreement without
obtaining the other party's prior confirmation on the contents thereof,
which confirmation shall not be unreasonably withheld or delayed.
Except as required by law or to each parties respective professional
advisors, or other advisors for the purposes of raising finance and
always subject to a non-disclosure agreement neither party may disclose
the terms and conditions of the Agreement.
Page 25
20.14 IN WITNESS WHEREOF the parties have caused this Agreement to be
executed by their duly Authorised representative:
ARM LIMITED: VIRATA LTD:
----------------------------------------------------------------------
SIGNED: /s/ SIGNED: /s/
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
NAME: X. Xxxxxxxx NAME: X. X. Xxxxxx
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
TITLE: Chief Operating Officer TITLE: Vice President I. P.
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
DATE: June 2, 1999 DATE: June 2, 1999
----------------------------------------------------------------------
Page 26
