TECHNOLOGY LICENSE
AND
DISTRIBUTION AGREEMENT
This Technology License and Distribution Agreement (the
"Agreement") is entered into this 19th day of July, 1996 (the
"Effective Date") between Sun Microsystems, Inc, acting by and
through its JavaSoft business unit ("Sun") with its principal place
of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
and Jyra Research, Inc., a US corporation with its principal place
of
business at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx 0X0, XX
("Licensee").
RECITALS
WHEREAS Sun wishes to license its eJavaOS technology, while
maintaining compatibility among JAVA language-based products; and
WHEREAS Sun wishes to protect and promote certain trademarks
used
in connection with its eJavaOS and JAVA technologies; and
WHEREAS Licensee wishes to develop and distribute products
based
upon Sun's eJavaOS technology;
NOW THEREFORE, Sun and Licensee enter into this Technology
Licensing and Distribution Agreement on the following terms.
1.0DEFINITIONS
1.1"Core Classes "means the classes listed in Exhibit A.I.b.
1.2'Derivative ~work(s)" means: (i) for material subject to
copyright or mask work right protection, any work which is based
upon
one or more pre-existing works of the Technology, such as a
revision,
modification, translation, abridgement, condensation, expansion,
collection, compilation or any other form in which such
pre-existing
works may be recast, transformed or adapted, (ii) for patentable or
patented materials, any adaptation, subset, addition, improvement
or
combination of the Technology, and (iii) for material subject to
trade secret protection, any new material, information or data
relating to and derived from the Technology, including new material
which may be protectable by copyright, patent or other proprietary
rights, and, with respect to each of the above, the preparation,
use
and/or distribution of which, in the absence of this Agreement or
other authorization from the owner, would constitute infringement
under applicable law.
1.3"Documentation" means the documentation which Sun provides
for use with the Technology, as more particularly identified in
Exhibit A.ll.
1.4"eJavaOS Environment' means the combination of the JavaOS
Runtime Interpreter, Core Classes and Net Classes.
1.5"Embedded Application Programming lnterface"or "EAPI" means
the public application programming interface to the Technology as
identified in Exhibit A, the bytecode specification in the
Documentation entitled "Java Virtual Machine Specification" and by
the Java language specification in the Documentation entitled "Java
Language Specification" and as modified by Sun during the term of
this Agreement, including all public class libraries and
interfaces.
1.8"Field of Use" means the relevant market segments and/or
product areas identified in Exhibit B.
1.7"Java OS Runtime Interpreter" means the program which
implements the Java Virtual Machine, as specified in the Java
Virtual
Machine Specification, without the need for a desktop-style
operating system, i.e., directly on bare silicon. The JavaOS
Runtime
Interpreter is formed of the Shared Part and the Platform-Dependent
Part.
1.8"Licensee Open Classes" means additional Java classes
developed by Licensee which represent extensions to the EAPI, and
which are made available to third parties in either source or
binary
form to use in the development of additional software which outputs
Java bytecodes and/or runs on a Java compatible Runtime
Interpreter.
1.9"Net Classes" means the classes listed in Exhibit A.l.c.
1.10
"Platform Dependent Part" means those Source Code files and
corresponding binary code of the eJavaOS Environment which are not
in
a "share" directory or subdirectory thereof.
1.11
"Product(s) "means a Licensee product into which the Technology
is integrated in whole or in part. A "Product" must: (i) have a
principal purpose which is substantially different from that of the
stand-alone eJavaOS Environment; (ii) represent a significant
functional and value enhancement to the eJavaOS Environment; (iii)
operate in conjunction with the eJavaOS Environment; and (iv) not
be
marketed as a technology which replaces or substitutes for the
eJavaOS Environment, A current list of Product(s) is specified in
Exhibit B, which may be amended by Licensee to add Product(s) from
time to time.
1.12
"Shared Pad"means those those Source Code files and
corresponding
binary code of the eJavaOS Environment which are in any "share"
directory or subdirectory thereof.
1.13
"Source Code"means the human readable version, in whole or in
part, of the Technology whether supplied by Sun or any other
entity,
and any corresponding comments and annotations.
1.14
"Technology" means the JavaOS Runtime Interpreter, Core Classes
and Net Classes, and Updates thereto to the extent that Licensee is
entitled to receive them hereunder.
1.15
"Trademarks" means all names, logos, designs, characters, and
other designations or brands used by Sun in connection with the
Technology.
1.16
"Updates" means bug fixes, modifications, variations,
enhancements, to the extent included in a patch or dot release of
the
Technology which Sun generally licenses as part of the Technology.
2.0 LICENSE GRANTS
2.1Source Code License.
a. Subject to the terms and conditions contained in this
Agreement and subject to Licensee's payments specified in
Exhibit
C, Sun hereby grants to Licensee, under and to the extent of
Sun's Intellectual Property Rights and solely for the Field(s)
of
Use specified in Exhibit B, a perpetual, worldwide, non-
exclusive, non-transferable license, without the right to
sublicense (except as specified in Section 0.xx(iii)), to: (i)
use the Source Code for internal development and porting
purposes, (ii) modify the Source Code to create Derivative
Works
(provided that Licensee shall be limited solely to creating
Derivative Works that constitute Product(s), Licensee Open
Classes, and Licensee-implemented modifications to the Platform
Dependent Part ("Permitted Derivative Works")), and (iii)
compile
the Source Code and Permitted Derivative Works thereof.
Licensee shall have no right to modify or subset the EAPI or to
modify' the functional behavior of the JavaOS Runtime
Interpreter. Licensee may use the Source Code of the Shared
Part
of the eJavaOS Environment to develop Product(s), Licensee
Open Classes, and Licensee-implemented modifications to the
Platform Dependent Part, but if it uses such Source Code, it
must
use all of it without modification.
Except as specified in Section 2.1 b(iii), Licensee shall have
no
right to distribute the Source Code of the Technology or of
Derivative Works.
b.Porting.
(i)Licensee may port the Platform Dependent Part to
platforms
other than those specified in Exhibit C.
(ii)Sun will work with Licensee to identify any changes
which
are necessary to the Shared Part of the eJavaOS
Environment to
allow porting it to other platforms, and Sun will use
reasonable
efforts to make changes necessary to the code for the
Shared
Part.
(iii) Licensee may sublicense and deliver a copy of the
Source
Code of the Technology to third parties (i) only in
association
with the delivery and sublicensing of Licensee Products,
(ii)
solely for the purpose of enabling such third party to
port or
localize Products for Licensee, and (iii) only with Sun's
prior
written approval. Any such sublicense shall be made
subject to
terms and conditions relating to ownership, use,
compatibility,
and confidentiality of the Technology substantially
similar to
those contained herein.
c.Bug Fixes. Licensee will inform Sun promptly, and no later
than
it informs any third party, of any bugs identified in the
Technology,
and to the extent that Licensee elects to correct such bugs,
Licensee
will make the Source Code of such bug fixes promptly available
to Sun
free. of all restrictions as they are implemented.
2.2 Binary Code License.
a.Sun hereby grants Licensee, under and to the extent of Sun's
Intellectual Property Rights, a non-exclusive, worldwide, fully
paid
up license to make, use and reproduce an unlimited number of
copies
of the Technology in binary form, for Licensee's internal use
during
the term of this Agreement.
b.Worldwide Distribution. Sun hereby grants Licensee a
worldwide,
nonexclusive license to distribute the Product(s), solely in
binary
form. Licensee may use such distribution channels as Licensee
deems
appropriate, including distributors, resellers, dealers and
sales
representatives (collectively, "Distributors"), provided
however,
that such Distributors shall not modify the Technology, and
shall be
obligated to abide by the relevant terms in this Agreement
governing
use, distribution, compatibility, and confidentiality.
2.3 Documentation.
a. Sun hereby grants to Licensee, under and to the extent of
Sun's
Intellectual Property Rights, a non-exclusive, non-transferable
license to: (i) use the Documentation for internal development
purposes, (ii) copy, use and modify the Documentation to create
technically accurate Licensee documentation (which must include
all
the relevant Sun copyrights, notices, and marks), (iii)
translate the
Documentation into other languages, and (iv) distribute such
translated or modified Documentation in connection with
distribution
of the Product(s). Licensee may also use a pointer to the Sun
Documentation on the Internet in connection with distribution
of the
Product(s).
2.4 Compatibilitv.
[Confidential information has been omitted and has been filed
separately with the SEC.]
2.5 Licensee Open Classes.
(i) Licensee shall deliver to Sun free of all restrictions the
specification for the application programming interface for
each
Licensee Open Class as early as is reasonably possible but in
no
event later than the date on which it first provides such
specification or an implementation thereof to any third party.
Included in such specification shall be an appropriate test
suite
sufficiently detailed to allow Sun and third parties to produce
implementations compatible with the specification. Licensee
shall use
its reasonable commercial efforts to clarify' and correct the
specification or the test suite upon written request by Sun and
failure to do so within sixty (80) days after such request
shall
constitute breach of this Agreement.
(ii) Licensee shall notify Sun as soon as it has made any
general
disclosure (i.e., not subject to confidentiality obligations)
of such
specification, or first releases a Product implementing such
specification, after which Sun shall have no obligation of
confidentiality whatsoever with respect to such specification.
Licensee agrees that it will take no steps whatsoever to
prevent Sun
or any third party from creating independent and compatible
implementations based on such specification, provided that such
implementations do not violate Licensee's patents, copyrights
or
trade secrets in Licensee's implementation of the Licensee Open
Classes (i.e., Licensee agrees that it will not enforce
copyright or
patent claims that relate to interface or compatibility with
such
specification).
(iii) Licensee shall confine the names of all Licensee Open
Classes
to names beginning with "COM.Licensee" or such other convention
as
Sun may reasonably require and shall not modify or extend the
names
of public class or interface declarations whose names begin
with
"java", "COM.sun" or their equivalents in any subsequent naming
convention. Licensee will make reasonable commercial efforts to
ensure that other commercial software packages which it
redistributes
conform to this convention.
(iv) Licensee hereby grants Sun a non-exclusive, worldwide,
fully-
paid-up license to use an unlimited number of copies of the
Licensee
Open Classes, in binary form, for Sun's internal use, such use
including but not limited to demonstration rights. Licensee
agrees
to reasonably negotiate in good faith with Sun the terms of a
commercial license for the source code of the Licensee Open
Classes.
The parties agree that the fees and other terms and conditions
of
this Agreement are a reasonable standard against which to judge
such
a license on a proportionate basis comparing the scope and
complexity
of the portion of the Licensee Open Class being licensed to the
scope
and complexity of the Technology.
2.6Ownership.
a.Ownership bv Sun. Sun retains all right, title and interest
in
the Technology, Documentation, Updates, bug fixes, Trademarks,
and
Derivative Works, (except for Permitted Derivative Works) and
associated Intellectual Property Rights. Licensee agrees to
execute (in recordable form where appropriate) any instruments
and/or documents as Sun may reasonably request to verify and
maintain Sun's ownership rights, or to transfer any part of the
same which may vest in Licensee for any reason. Licensee
further
agrees to promptly deliver to Sun any Derivative Works in
source
code form (except for Permitted Derivative Works) of the
Technology created by Licensee pursuant to and during the term
of
this Agreement. Sun shall have no obligations of
confidentiality
to Licensee for such Derivative Works, nor shall Sun be
obligated
to incorporate any such Derivative Works into the Technology.
b.Ownership bv Licensee. Licensee retains all right, title and
interest in Permitted Derivative Works created by Licensee
pursuant to and during the term of this Agreement, subject to
Sun's underlying rights in the Technology and associated
Intellectual Property Rights identified in Section 2.6a.
2.7Protection of Sun's Rights. Licensee shall use, modify' and
practice the Technology and manufacture, market, distribute and
sell
Product(s), Licensee Open Classes, and Licensee-implemented
modifications to the Platform-Dependent Part of the eJavaOS
Environment
only in a manner consistent with the terms of this Agreement, and
only
in a manner reasonably designed not to jeopardize or prejudice
Sun's
Intellectual Property Rights, including trademarks, trade dress and
service marks, and other proprietary rights.
2.8No Other Grant. Each party agrees that this Agreement does
not
grant any right or license, under any Intellectual Property Rights
of
the other party, or otherwise, except as expressly provided in this
Agreement, and no other right or license is to be implied by or
inferred
from any provision of this Agreement or by the conduct of the
parties.
2.9Pre-Release. Licensee may release Product(s) based on the
pr~CS
Technology licensed by Sun hereunder only for beta testing
purposes.
3.0SUPPORT AND UPDATES
3.1During the Support Period (as defined below), Sun shall
provide
to Licensee under the terms and conditions of this Agreement,
Updates
for the platforms specified in Exhibit C when and if any such
Updates
are made available by Sun to any commercial licensee similarly
situated.
3.2Subject to payment of the fee specified in Exhibit C (3),
Sun
shall assign the equivalent of one (1) half-time engineer to be
available via phone, electronic mail and/or scheduled appointment
during
regular business hours to support Licensee, from the Effective Date
through the fifth (5th) anniversary of the Sun FCS Date (as defined
below) (the "Support Period"). The selection of the support
engineer
shall be at Sun's sole discretion. Licensee may designate a maximum
of
three (3) contacts to interface with the Sun support engineer.
3.3Upon the request of Licensee, Sun agrees to reasonably
negotiate
in good faith for additional support through a separate support
agreement.
4.0
PAYMENT
4.1License Fees. Support Fees and Royalties. Licensee shall
pay to
Sun the license and support fees set forth in Exhibit C within
thirty
(30) days from the Effective Date of this Agreement, unless
otherwise
specified in Exhibit C. Thereafter, and for the term of the
Agreement,
Licensee shall pay the Support Fee on or before the anniversary of
the
Effective Date. Licensee shall pay to Sun the Royalties due
hereunder
as set forth in Exhibit C.
4.2Taxes. All payments required by this Agreement shall be
made in
United States dollars, are exclusive of taxes, and Licensee agrees
to
bear and be responsible for the payment of all such
taxes, including, but not limited to, all sales, use, rental
receipt,
personal property or other taxes and their equivalents which may be
levied or assessed in connection with this Agreement (excluding
only
taxes based on Sun's net income).
4.3Records. Licensee shall maintain account books and records
consistent with Generally Accepted Accounting Principles
appropriate to
Licensee's domicile, as may be in effect from time to time,
sufficient
to allow the correctness of the royalties required to be paid
pursuant
to this Agreement to be determined.
4.4Audit Rights. Sun shall have the right to audit such
accounts
upon reasonable prior notice. The right to audit may be exercised
through an independent auditor of Sun's choice (the "Auditor"). The
Auditor shall be bound to keep confidential the details of the
business
affairs of Licensee and to limit disclosure of the results of any
audit
to only the sufficiency of the accounts and the amount, if any, of
any
additional payment or other payment adjustment that should be made.
Such
audits shall not occur more than once each year (unless
discrepancies
are discovered in excess of the five percent (5%) threshold set
forth
in Section 4.5, in which case two consecutive quarters per year may
be
audited). Except as set forth in Section 4.5 below, Sun shall bear
all
costs and expenses associated with the exercise of its rights to
audit.
4.5Pavment Errors. In the event that any errors in payments
shall
be determined, such errors shall be corrected by appropriate
adjustment
in payment for the quarterly period during which the error is
discovered. ln the event of an underpayment of more than five
percent
(5%) of the proper amount owed, upon such underpayment being
properly
determined by the Auditor, Licensee shall reimburse Sun the amount
of
said underpayment and the reasonable charges of the Auditor in
performing the audit that identified said underpayment, and
interest on
the overdue amount at the prime rate plus three percent (3%), from
the
date of accrual of such obligation.
5.0
ADDITIONAL AGREEMENT OF PARTIES
5.1Notice of Breach or Infringement. Each party shall notify'
the
other immediately in writing when it becomes aware of any breach or
violation of the terms of this Agreement, or when Licensee becomes
aware
of any potential or actual infringement by a third party of the
Technology or Sun's Intellectual Property Rights therein.
5.2Notices. Licensee shall not remove any copyright notices,
trademark notices or other proprietary legends of Sun or its
suppliers
contained on or in the Technology or Documentation. Each unit of
Product(s) containing the Technology distributed by Licensee shall
include in Licensee's documentation, or in other terms and
conditions
of sale, notices substantially similar to those contained on and in
the
Technology. Licensee or its Distributors shall require an end user
license agreement for each unit of Product(s) shipped and Licensee
shall
provide Sun with a copy of such form agreement for review and
approval.
If Licensee or its Distributors use a package design or label for
the
Product(s), such package design or label shall include an
acknowledgement of Sun as the source of the Technology and such
other
notices as specified in Exhibit F In addition, Licensee shall
comply
with all reasonable requests by Sun to include Sun's copyright
and/or
other proprietary rights notices on the Product(s), documentation
or
related materials, including but not limited to the notices and
acknowledgements as specified in Exhibit F.
5.3End User Support. Licensee shall provide technical and
maintenance support service for its distributors and end user
customers
in accordance with Licensee's standard support practices. Sun shall
not
be responsible for providing any support to Licensee's distributors
or
customers for the Technology or the Product(s).
5.4Marketing. Licensee will cooperate with Sun on mutually
agreeable marketing and promotional activities relating to the
Technology. Licensee's initial press announcement concerning
execution
of this Agreement must be reviewed and approved by Sun prior to its
release.
5.5Use of Licensee's name. Licensee hereby authorizes Sun to
identify' Licensee as a user of the Technology in advertising,
marketing, collateral, customer lists and customer success stories
prepared by or on behalf of Sun for the Technology, provided that
Licensee will have the right to approve the use of its name, such
approval not to be unreasonably withheld or delayed.
(
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6.0LIMITED WARRANTY AND DISCLAIMER
6.1Limited Warranty. Sun represents and warrants that the
media on
which the Technology is recorded will be free from defects in
materials
and workmanship for a period of ninety (90) days after delivery.
Sun's
sole liability with respect to breach of this warranty is to
replace the
defective media. Except as expressly provided in this Section 8.1,
Sun
licenses the Technology and Documentation to Licensee on an "AS 15"
basis.
6.2General Disclaimer. EXCEPT AS SPECIFIED IN THIS AGREEMENT,
ALL
EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY
IMPLIED
WARRANTY OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE OR
NON-
INFRINGEMENT, ARE HEREBY DISCLAIMED.
6.3Logo Disclaimer. SUN MAKES NO WARRANTIES OF ANY KIND
RESPECTING
THE COMPATIBILITY LOGO(s), INCLUDING THE VALIDITY OF SUN'S RIGHTS
IN THE
COMPATIBILITY LOGO(s) IN ANY COUNTRY AND DISCLAIMS ANY AND ALL
WARRANTIES THAT MIGHT OTHERWISE BE IMPLIED BY APPLICABLE LAW,
INCLUDING
WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY TRADEMARKS.
6.4Limitation. The warranties set forth in this Article 6.0
are
expressly subject to Section 9.0 (Limitation of Liability).
7.0
CONFIDENTIAL INFORMATION
7.1Confidential Information. For the purposes of this
Agreement,
"Confidential Information" means the Technology and hat information
which relates to (i) Sun hardware or software, (ii) Licensee
hardware
or software, (iii) the customer lists, business plans and related
information of either party, and (iv) any other technical or
business
information of the parties, including the terms and conditions of
this
Agreement In all cases, information which a party wishes to be
treated
as "Confidential Information" shall be marked as "confidential" or
"proprietary" (or with words of similar import) in writing by the
disc!osing party on any tangible manifestation of the information
transmitted in connection with the disclosure, or, if disclosed
orally,
designated as "confidential" or "proprietary" (or with words of
similar
import) at the time of disclosure. Sun has no obligation of
confidentiality to Licensee with respect to Derivative Works
(except for
Permitted Derivative Works) and the specifications of the Licensee
Open
Classes.
7.2Preservation of Confidentiality. The parties agree that all
disclosures of Confidential Information (as defined under Section
7.1
above) shall be governed by and treated in accordance with the
terms of
the Confidential Disclosure Agreement (the "CDA") attached hereto
as
Exhibit D and incorporated herein by reference, modified as
follows:
(a)the definition of "Confidential Information" shall be as
set
forth in Section 7.1 above notwithstanding any definition
set forth in the CDA;
(b)the use of Confidential Information shall be limited to
the
scope of the licenses provided in this Agreement; and
(c)the obligations of confidentiality expressed in the CDA
shall extend three (3) years beyond termination of this
Agreement, except with respect to Sun Source Code which
shall be held in confidence in perpetuity; and
(d)the CDA shall remain in effect for the term of this
Agreement.
8.0 LIMITED INDEMNITY
8.1Licensee acknowledges that Sun shall not be liable for any
defects or deficiencies in the Technology or in any Product process
or
design created by, with or in connection with the Technology
whether or
not such defect and/or deficiencies are caused, in whole or in
part, by
defects or deficiencies in the design or .implementation of the
Technology. Upon delivery of the Technology by Sun pursuant to this
Agreement, Sun will provide to Licensee a limited indemnity as
described
in Sections 8.2-8.5 below.
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8.2Sun will defend, at its expense, any legal proceeding
brought
against Licensee, to the extent it is based on a claim that use of
the
Technology is an infringement of a trade secret or copyright in any
country that is a signatory to the Berne Convention, and will pay
all
damages awarded by a court of competent jurisdiction attributable
to
such claim, provided that Licensee: (i) gives written notice of the
claim promptly to Sun; (ii) gives Sun sole control of the defense
and
settlement of the claim; (iii) provides to Sun, at Sun's expense,
all
available information, assistance and authority to defend; and (iv)
has
not compromised or settled such proceeding without Sun's prior
written
consent.
8.3Should any Technology or any portion thereof become, or in
Sun's
opinion be likely to become, the subject of a claim of infringement
for
which indemnity is provided under Section 8.2, Sun shall, as
Licensee's
sole and exclusive remedy for ongoing infringement, elect to: (i)
obtain
for Licensee the right to use such Technology; (ii) replace or
modify
the Technology so that it becomes non-infringing; or (iii) accept
the
return of the Technology and grant Licensee a refund of the License
Fee
and royalties, as depreciated on a five year straight-line basis.
8.4Sun shall have no liability for any infringement or claim which
results from: (i) use of other than a current unaltered version of
the
Technology, if such version was made available to Licensee; (ii)
use of
the Technology in combination with any non-Sun-provided equipment,
software or data; or (iii) Sun's compliance with designs or
specifications of Licensee.
8.5THIS ARTICLE STATES THE ENTIRE LIABILITY OF SUN WITH
RESPECT TO
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE TECHNOLOGY.
SUN
SHALL HAVE NO OTHER LIABILITY WITH RESPECT TO INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS OF LICENSEE OR ANY THIRD PARTY AS A
RESULT
OF USE, LICENSE, OR SALE OF TECHNOLOGY
8.6Indemnity by Licensee. Except for claims for which Sun is
obligated to indemnify Licensee under Section 8.2, Licensee shall
defend
and indemnify Sun from any and all claims brought against Sun by
third
parties, and shall hold Sun harmless from all corresponding
damages,
liabilities, costs and expenses, (including reasonable attorneys'
fees)
incurred by Sun arising out of or in connection with Licensee's
use,
reproduction or distribution of the Technology, Product(s) or
Licensee
Open Classes. Licensee's obligation to provide indemnification
under
this Section shall arise provided that Sun: (i) gives notice of the
claim promptly to Licensee; (ii) gives Licensee sole control of the
defense and settlement of the claim; (iii) provides to Licensee, at
Licensee's expense, all available information, assistance and
authority
to defend; and (iv) has not compromised or settled such proceeding
without Licensee's prior written consent.
9.0LIMITATION OF LIABILITY
9.1Limitation of Liability. Except for express undertakings to
indemnify under this Agreement and/or breach of Sections 2.4, 7.0
or
9.2:
a. Each party's liability to the other for claims relating to this
Agreement, whether for breach or in tort, shall be limited to the
license fees and royalties paid by Licensee for the Technology
related
to the claims.
b. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT
INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH OR
ARISING
OUT OF THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR
OTHER
ECONOMIC ADVANTAGE), NO MATTER WHAT THEORY OF LIABILITY, EVEN IF
THE
EXCLUSIVE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR
ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OR PROBABILITY OF SUCH DAMAGES. FURTHER, LIABILITY FOR
SUCH
DAMAGE SHALL BE EXCLUDED, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED
FOR
IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. The provisions
of
this Section 9.0 allocate the risks under this Agreement between
Sun and
Licensee and the parties have relied upon the limitations set forth
herein in determining whether to enter into this Agreement.
9.2High Risk Activities. The Technology is not designed or
intended
for use in on-line control of aircraft, air traffic, aircraft
navigation
or aircraft communications; or in the design, construction,
operation or maintenance of any nuclear facility. Sun disclaims any
express or implied warranty of fitness for such uses. Licensee
agrees
that it will not knowingly use or license the Technology for such
purposes, and that it will ensure that its customers and end users
of
the Technology are provided with a copy of the foregoing notice.
10.0 TERM AND TERMINATION
10.1 Term. The term of this Agreement shall begin on the Effective
Date
and shall continue for a period of five (5) years, or until
terminated
as provided below. Each year for five (5) consecutive years
following
expiration of the initial five (5) year term, at Licensee's sole
option,
Licensee may extend the term of this Agreement for one (1)
additional
year. Licensee shall indicate its intent to extend the Agreement by
written notice to Sun within thirty (30) days prior to the
expiration
of the preceding term. Termination is permitted either for breach
of
this Agreement, upon thirty (30) days written notice to the other
party
and an opportunity to cure within such thirty (30) day period, or
upon
any action for infringement of any patent relating to the
Technology by
Licensee against Sun or any of Sun's licensees of the Technology.
10.2Termination for Convenience. Licensee may notify Sun in writing
at
any time after the first full year of this Agreement of its intent
to
terminate this Agreement for Licensee's convenience. Such
termination
shall be effective at the next anniversary date of the Agreement
that
occurs more than ninety (90) days after Sun's receipt of such
notice.
10.3Effect of Expiration. Upon expiration of this Agreement, Sun
shall
retain use, under the terms of this Agreement, of the Intellectual
Property Rights received hereunder, and Licensee shall be
authorized to:
(i) distribute Product(s) containing the version of the Technology
incorporated therein at the time of expiration, subject to
Licensee's
continued compliance with the JavaOS Test Suites current at the
time of
expiration, and payment of royalties, and (ii) retain one (1) copy
of
the Technology in Source Code form to support customers having
copies
of Product(s) distributed by Licensee. All rights of Licensee to
receive
Updates and/or Support hereunder shall terminate upon such
expiration.
10.4Effect of Termination.
a. In the event of termination of this Agreement by Sun in
accordance
with Section 10.1 above or by Licensee in accordance with Section
10.2
above, Licensee shall promptly: (i) return to Sun all copies of the
Technology and Derivative Works thereof in tangible or electronic
form,
Documentation, and Confidential information (collectively "Sun
Property") (excluding Products, Licensee Open Classes and Licensee-
Implemented modifications to the Platform Dependent Pant) in
Licensee's
possession or control; or (ii) permanently destroy or disable all
copies
of the Sun Property in Licensee's possession or control, except as
specifically permitted in writing by Sun; and (iii) provide Sun
with a
written statement certifying that Licensee has complied with the
foregoing obligations. All rights and licenses granted to Licensee
shall
terminate upon such termination.
b. In the event of termination of this Agreement by Licensee in
accordance with Section 10.1 above, the rights and licenses granted
to
Licensee in this Agreement shall not terminate.
10.5No Liability for Expiration or Lawful Termination. Neither
party
shall have the right to recover damages or to indemnification of
any
nature, whether byway of lost profits, expenditures for promotion,
payment for goodwill or otherwise made in connection with the
business
contemplated by this Agreement, due to the expiration or permitted
or
lawful termination of this Agreement. EACH PARTY WAIVES AND
RELEASES THE
OTHER FROM ANY CLAIM TO COMPENSATION OR INDEMNITY FOR TERMINATION
OF THE
BUSINESS RELATIONSHIP UNLESS TERMINATION IS IN MATERIAL BREACH OF
THIS
AGREEMENT.
10.6No Waiver. The failure of either party to enforce any provision
of
this Agreement shall not be deemed a waiver of that provision. The
rights of Sun under this Section 1 0.0 are in addition to any other
rights and remedies permitted by law or under this Agreement.
10.7Survival. The parties' rights and obligations under Sections
4.0
(for royalty payments), 5.2, 5.3, 6.0, 7.0, 8.0, 9.0,10.0, and 11.0
shall survive expiration or termination of this Agreement.
10.8 Irreparable Harm. The parties acknowledge that breach of
Sections
2.0, 5.2, 5.3,7.0, 9.2, or 11.8 may cause irreparable harm, the
extent
of which would be difficult to ascertain. Accordingly, they agree
that,
in addition to any other legal remedies to which a non-breaching
party
might be entitled, such party may seek immediate injunctive relief
in
the event of a breach of the provisions of such Articles.
11.0 MISCELLANEOUS
11.1Notices. All notices must be in writing and delivered either in
person or by certified mail or registered mail, postage prepaid,
return
receipt requested, to the person(s) and address specified below.
Such
notice will be effective upon receipt.
Sun
Licensee
Sun Microsystems, lnc.
0000 Xxxxxx Xxxxxx, XXXX00xX0
Xxxxxxxxx, Xxxxxxxxxx 0000x0000
Attn:Sun General Counsel
Jyra Research, Inc.
00 Xxxxxxx Xxxxxx, Xxxxxxxxxx
Xxxxxx 0X0, XX
Attn: Xxxxx Xxxxx - Technical Director
Xxxxxxxx Xxxxx - Director and Secretary
11.2
Partial Invalidity. If any term or provision of this Agreement
is
found to be invalid under any applicable statute or rule of law
then,
that provision notwithstanding, this Agreement shall remain in full
force and effect and such provision shall be deleted unless such a
deletion would frustrate the intent of the parties with respect to
any material aspect of the relationship established hereby, in
which
case, this Agreement and the licenses and rights granted hereunder
shall terminate.
11.3
Complete Understanding. This Agreement and the Exhibits hereto
constitute and express the final, complete and exclusive agreement
and
understanding between the parties with respect to its subject
matter and
supersede all previous communications, representations or
agreements,
whether written or oral, with respect to the subject matter hereof.
No
terms of any purchase order or similar document issued by Licensee
shall
be deemed to add to, delete or modify the terms and conditions of
this
Agreement. This Agreement may not be modified, amended, rescinded,
canceled or waived, in whole or part, except by a written
instrument
signed by the parties.
11.4Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions of
this
Agreement in any other language shall be for accommodation only and
shall not be binding on the parties to this Agreement. All
communications and notices made or given pursuant to this
Agreement, and
all documentation and support to be provided, unless otherwise
noted,
shall be in the English language.
11.5Governing Law. This Agreement is made under and shall be
governed by and construed under the laws of the State of
California,
regardless of its choice of laws provisions.
11.6 Compliance with Laws. The Technology, including technical
data,
is subject to U.S. export control laws, including the U.S. Export
Administration Act and its associated regulations, and may be
subject
to export or import regulations in other countries. Licensee agrees
to
comply strictly with all such regulations and acknowledges that it
has
the responsibility to obtain such licenses to export, re-export or
import the Technology or Product(s) as may be required after
delivery
to Licensee.
Licensee shall make reasonable efforts to notify and inform its
employees having access to the Technology of Licensee's obligation
to
comply with the requirements stated in this Article.
117
Disclaimer of Agency. Licensee is not authorized to make any
representation or warranty on behalf of Sun to its end users or
third
parties. The relationship created hereby is that of licensor and
licensee and the parties hereby acknowledge and agree that nothing
herein shall be deemed to constitute Licensee as a franchisee of
Sun.
Licensee hereby waives the benefit of any state or federal statutes
dealing with the establishment and regulation of franchises.
11.8 Delivery. As soon as practicable after the Effective Date, Sun
shall deliver to Licensee one (1) copy of each of the deliverables
set
forth in Exhibit A. Licensee acknowledges that certain of the
deliverables are in various stages of completion and agrees to
accept
the deliverables as and to the extent completed as of the date of
delivery and "AS IS." In the event any deliverable is already in
the
possession or custody of Licensee, such item(s) shall, to the
extent
used in connection with the rights granted in Section 2.0 above, be
subject to the terms of this Agreement, notwithstanding any
pre-existing
agreement or understanding between Licensee and Sun with respect to
such
items.
11.9 Assignment and Change in Control. This Agreement may not be
assigned by either party without the prior written consent of the
other
party, which consent shall not be unreasonably withheld or delayed,
except that Sun may assign this Agreement to a majority-owned
subsidiary, and Licensee may assign this Agreement to a
majority-owned
subsidiary domiciled in the United States or the European Union.
11.10 Construction. This Agreement has been negotiated by Sun and
Licensee and by their respective counsel. This Agreement will be
fairly
interpreted in accordance with its terms and without any strict
construction in favor of or against either party.
11.11 Force Majeure. Except for the obligation to pay money and
Sun's
obligation to make an initial delivery of the Source Code, neither
party
shall be liable to the other party for non-performance of this
Agreement, if the non-performance is caused by events or conditions
beyond that party's control and the party gives prompt notice under
Section 11.1 and makes all reasonable efforts to perform.
11.12 Exhibits.
The following are included herein by reference as integral
parts of
this Agreement:
Exhibit A - Description of Technology and Documentation
Exhibit B - Identification of Licensee Product(s)
Exhibit C - Schedule of Fees and Royalties
Exhibit D - Confidential Disclosure Agreement
Exhibit E - Document Type Definition
Exhibit F - Trademark License
11.13
Section References. Any reference contained herein to an
article
of this agreement shall be meant to refer to all subsections of the
article.
11.14
No Competitive Restrictions. The Parties agree that nothing in
this Agreement is intended to prohibit Licensee from independently
developing or acquiring technology that is the same as or similar
to
the Technology, provided that Licensee does not do so in breach of
Exhibit D to this Agreement.
11.15
Condition Subsequent.
a.The parties acknowledge the following: Licensee is currently
engaged in an initial offering of its common stock scheduled to
expire on July 5, 1996 unless extended by Licensee to a later
date
(the "Initial Offering"). Licensee is looking to the proceeds
of
the Initial Offering to enable Licensee to fulfill its initial
payment obligations under this Agreement. Licensee intends
promptly
to disclose to its prospective common stockholders the
existence
and principal terms of this Agreement in advance of the
scheduled
expiration date of the Initial Offering in order to enable its
prospective common stockholders to determine whether they wish
to
purchase their shares notwithstanding Licensee's entering into
this
Agreement.
b.On or before July 19, 1996, Licensee shall provide written
notice to Sun ("Licensee's Notice") truthfully indicating
either
that: (i) Licensee has not received and accepted the minimum
proceeds required to close the Initial Offering; or (ii)
Licensee
has received and accepted the minimum proceeds required to
close the
Initial Offering.
x.Xx the event that Licensee's Notice shall truthfully
indicate
that Licensee has not received and accepted the minimum
proceeds
required to close the Initial Offering, then this Agreement and
all
agreements entered into pursuant to or in contemplation of this
Agreement shall be cancelled and of no effect as though they
had
never been signed or delivered. In the event that Licensee's
Notice
truthfully indicates that Licensee has received and accepted
the
minimum proceeds required to close the Initial Offering, then
this
Agreement and all such other agreements shall remain fully
effective in accordance with their terms without reference to
this
condition subsequent.
d.Licensee agrees that no press release concerning this
Agreement
will be made prior to satisfaction of this Condition
Subsequent,
and that its disclosures concerning this Agreement to
prospective
common stockholders shall be identified as confidential
information
of Licensee.
e.Neither Sun's obligation to make its initial delivery of the
Source Code under this Agreement nor Licensee's obligations to
make
any payments under this Agreement will be triggered unless
Licensee
has timely received and accepted the minimum proceeds required
to
close the Initial Offering in such manner as to require
Licensee
to provide a Licensee" Notice as set forth in subparagraph (b)
(ii), above.
f.Sun's obligation to make its initial delivery of the Source
Code hrereunder will not be triggered until fifteen (15)
business
days after satisfaction of the condition subsequent identified
in
this Section.
g. 3 page side letter attached - dated 11 July 1996.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives.
Sun Microsystems; Inc.
By /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President, JavaSoft
Date: 7-19-96
Licensee:
By: Xxxxxxxx Xxxxx
Director & Secretary
Date: July 19, 1996
12
EXHIBIT A
DESCRIPTION OF TECHNOLOGY AND DOCUMENTATION
To the extent that Sun has not already delivered any of the
following listed items to Licensee as of the Effective Date of the
Agreement to which this Exhibit A is attached, Sun will deliver to
Licensee under the terms of the Agreement those items identified
below.
I.eJavaOS Environment The eJavaOS Environment consists of the
following source code:
a.The Source Code for the JavaOS Runtime Interpreter
b.Core Classes: All the java files from the following eJavaOS
Packages:
java.lang(eJavaOS Implementation)
Language Classes
xxxx.xx(eJavaOS Implementation)Stream I/O
java.util(eJavaOS Implementation)
General utilities
java.applet(eJavaOS Implementation)
Java Classes
x.Xxx Classes: All the java files from the following JavaOS
Package:
xxxx.xxx (JavaOS
Implementation)Networking Classes
11. Documentation:
Java OEM Language Specification
Java OEM API Documentation
Java OEM Virtual Machine Specification
eJavaOS OEM Specification
13
EXHIBIT B
IDENTIFICATION OF LICENSEE PRODUCT(S)
Product(s):Network Probe
Field(s) of Use: Computer Network Management Systems
14
EXHIBIT C
SCHEDULE OF FEES AND ROYALTIES
X.Xxxxxxxxxx: eJavaOS Environment
1. Upfront License Fees: [Confidential information has been
omitted and has been filed separately with the SEC.]
The fees and royalties specified in this Agreement are for the
platforms identified below: (check applicable platforms)
SPARC/Solaris Win32/lntelXX
Where such versions are not complete as of the Effective Date, the
license fees cover the first commercial version shipped by Sun for
that platform.
2. Per Unit Royalty:
Royalty Fees are to be applied on a non-recurring basis per Product
unit per CP\3 architecture.
Unit Volume Per Unit Royalty
1-5k $66.00
Thereafter $20.00
Payment of the royalties shall be made quarterly, shall be due
forty- five (45) days following the end of Licensee's fiscal
quarter to which they relate and shall be submitted with a written
statement certifying the number of Products sold and showing the
calculation of the royalties due. A network probe Product shall be
deemed a single unit of Product for purposes of royalty payments
hereunder.
0.Xxxxxxx and Update Fees: For the period in which Licensee is
paying a royalty of $66.00 per unit, Licensee shall pay $50,000.
per year (for updates and bug reporting only), the initial payment
due within thirty days of first delivery of Source Code of the
eJavaOS Environment, and subsequent payments due upon each
anniversary date thereof. During this period, and subject to
availability from Sup, Licensee may request primary support (112
time engineer at Sun for technical support, upgrades and bug
reporting) for the Technology at a price of an additional $20,000
per month for the period in which such primary support is
requested.
For the period in which Licensee is paying a royalty of $20.00 per
unit, Licensee shall pay $300,000. per year for primary support
(1/2 time engineer at Sun for technical support, upgrades and bug
reporting).
Licensee will be permitted a maximum of three (3) contact persons
to communicate with the Sun support staff. If more than three
contacts becomes necessary, Sun and Licensee will negotiate in good
faith additional support fees on a per subsidiary basis as
appropriate.
15
EXHIBIT D
CONFIDENTIAL DISCLOSURE AGREEMENT
(to be attached)
16
BI-LATERAL CONFIDENTIAL DISCLOSURE AGREEMENT
Effective Date: 16 May 1996
Sun Microsystems, Inc. by and through its JavaSoft business unit,
("Sun"); and Jyra Research Inc. ("Party") agree that:
1. a) The information disclosed under this Agreement
("Information") includes the following:
Sun Information: JavaSoft technology, business and technical
information relating to JavaSoft products, JavaSoft product
licensing practices and fees, research and development plans,
customers, and marketing and future business plans:
Party Information: _______________________________________________
(If not filled in by Party, then no Party information is to be
disclosed)
B) Information may be used solely for the purpose of
evaluating business opportunities between the parties.
2. This Agreement covers only information which is disclosed
between the Effective Date and twelve (12)months thereafter. Each
party's obligation regarding information expires three (3) years
after the date of disclosure (except for Sun source code, which
shall be protected in perpetuity). Information shall be used
solely as permitted above, and shall not be disclosed to a third
party other than a subsidiary, agent, or subcontractor of the
receiving party who has agreed to be bound by the terms of this
Agreement. Each party shall protect information of the other party
using the same degree of care, but no less than a reasonable degree
of care, as such party uses to protect its own confidential
information. Upon termination of this Agreement or the disclosing
party's written request, the receiving party shall cease use of
information and return or destroy all information.
3. Each party shall be obligated to protect only information: (a)
disclosed in tangible form clearly labeled as confidential or
proprietary at the time of disclosure; or (b) disclosed in
non-tangible form, identified as confidential or proprietary at the
time of disclosure, and summarized in writing, designated as
confidential or proprietary, and delivered to the other party
within thirty (30) days after disclosure.
4. This Agreement imposes no obligation upon the receiving party
with respect to information which: (a) was in the possession of, or
was known by, the receiving party prior to its receipt from the
disclosing party, without an obligation to maintain its
confidentiality; (b) is or becomes generally known to the public
without violation of this Agreement; (c) is obtained by the
receiving party from a third party, without an obligation to keep
such information confidential; or (d) is independently developed by
the receiving party without use of information. Disclosure of the
other party's information is not prohibited if prior notice is
given to the other party and such disclosure is: (a) compelled
pursuant to a legal proceeding, or (b) otherwise required by law.
5. Information is provided "AS IS", and all representations and
warranties, express or implied, including fitness for a particular
purpose, merchantability, and noninfringement, are hereby
disclaimed. Neither party has an obligation to sell or purchase
any items from the other party. Except for breaches relating to
Sun source code, neither party shall be liable for any special,
incidental, consequential or punitive damages by reason of any
alleged breach of this Agreement based upon any theory of
liability. Nothing in this Agreement shall be construed as a
representation that the receiving party will not develop or acquire
information that is the same or similar to information, provided
that the receiving party does not do so in breach of this
Agreement. The receiving party agrees that any breach of this
Agreement may result in irreparable harm to the disclosing party
for which damages would be an inadequate remedy and, therefore, in
addition to its rights and remedies otherwise available at law, the
disclosing party shall be entitled to equitable relief, including
injunction, in the event of such breach. The receiving party does
not acquire any rights in information, except the limited right to
use information as described above.
6. The Agreement constitutes the entire agreement between the
parties concerning its subject matter. All additions or
modifications to this Agreement must be made in writing and must be
signed by an authorized representative of each party. The parties
agree to comply strictly with all applicable export control laws
and regulations. Any action related to this Agreement will be
governed by California law, excluding choice of law rules.
SUN MICROSYTEMS, INC., by and PARTY: Jyra Research Inc.
through JAVASOFT
BY: /s/ Xxx Kannegaarel BY: /s/ Xxxxxxxx Xxxxx
NAME: Xxx Kannegaarel NAME: Xxxxxxxx Xxxxx
TITLE: VP, JAVASOFT TITLE: Director, Secretary
EXHIBIT E
F
DOCUMENT TYPE DEFINITION
In order to ensure interoperability between all Java compliant
browsers, Sun needs to define the exact notation of applets in HTML
documents. The format of the APPLET tag is chosen to be
implementation language independent and SGML compliant. SGML
compliance is important if the APPLET tag is to be accepted as part
of the HTML standard in the future.
Example:
[applet codebase='"xxxx://xxxx.xxx.xxx/xxxxxx/xxx/xxxxxxx"
code="Bounceltem.java" width=400 height=300]
[lapplet]
The applet tag has the following attributes:
CODEBASE The base url of the applet. The applet's code
is
located relative to this URL. If this
attribute
is not specified, it defaults to the document's
URL.
CODE The file in which the applete is located. This
file is relative to base url of the applet, It
cannot be absolute.
ALT Alternate text which can be displayed by text
only browsers.
NAME The symbolic name of the applet..This name can
be used by applets in the same page to locate
each other.
WIDTH Required attribute which specifies the initial
width of the applet in pixels.
HEIGHT Required attribute which specifies the initial
height of the applet in pixels.
ALIGN The alignment of the applet, similar to the img
tag.
VSPACE The vertical space around the applet, similar
to
img tag.
HSPACE The horizontal space around the applet, similar
to the img tag.
Note that the position of the applet in the page is determined by
the
width, height, align, vspace and hspace attributes just like the
img
tag.
Applets can access the above attributes using the getParameter()
method
c all defined in the Java Class. All attribute/parameter names are
automatically folded to lower case. Applets that require parameters
in
addition to the predefined ones need to use the param tag. It is
unfortunately not legal in SGML for a tag to have an arbitrary list
of
attributes. That is why additional applet parameters explicitly
using
the PARAM tag have to be named. For example:
[applet code="Dateltem.class" alt="The Date" width=200
height=40] [param name="speaker" value="avh"]
[param name--translator" value='~DutchTime"]
[lapplet]
In addition to the ALT tag, Licensee can include additional text
and
markup before the applet end tag. Java compliant browsers will
ignore
this text, but browsers that do not understand the applet tag will
display it instead of the applet. For example:
17
If Licensee were using a Java enabled browser, Licensee would see
an
animation instead of this static image. [p]
[img src=imageslduke/T1 gif"] [/app let]
Below is the formal SGML DTD for the APPLET and PARAM tags.
[!ELEMENT APPLET - - (PARAM*, (%text;)*~] [!ATTLIST APPLET
CODEBASE CDATA #IMPLIED
CODE CDATA #REOUIRED-code file-
ALT CDATA#IMPLIED-alternative string-
NAME CDATA #IMPLIED- the applet name -
HEIGHT NUMBER #REQUIRED
ALIGN (left/right/top/texttop/middIe/
absmiddle/baseline/bottom/absbottom) baseline
VSPACE NUMBER #IMPLIED
HSPACE NUMBER #IMPLlED
-code base-
[!ELEMENT PAPAM -0 EMPTY] [!ATTLIST PARAM
NAME NAME #REQUIRED-The name of the
parameter-VALUE
CDATA #IMPLIED - The value of the
parameter -
'
EXHIBIT F
TRADEMARK LICENSE
JAVA-Powered Logo
LICENSOR
SUN MICROSYSTEMS, INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
X.X.X.
(000) 000-0000
LICENSEE
19
TRADEMARK LICENSE
The following terms and conditions governing Java
compatibility branding and trademarks generally ("License") are
incorporated by reference into the Technology License and
Distribution Agreement ("TLDA") between Sun and Licensee, attached
hereto. Where this License is more specific than or inconsistent
with the TLDA, the terms of this License shall govern. Otherwise
the TLDA shall apply. The parties agree that:
1.DEFINITIONS
1.1."Branded Product" means all online software or tangible copies
or units of any version of Licensee's Products being distributed in
association with any Compatibility Logo.
1.2."Compatibility Logo" means the Java-owned logo supplied by Sun
to Licensee from time-to-time. The current version of the logo is
depicted at the end of this License.
1.3."Licensee's Products" means only the products described in
Exhibit B of the TLDA.
2.GRANT OF LICENSE
Sun grants to Licensee a non-exclusive, non-transferable, personal,
paid-up, royalty-free license, within the Territory in Section 3,
to use the Compatibility Logo ("License") as provided herein with
respect to each of Licensee's Products that fully meet the
certification requirements of Section 4. Licensee is granted no
other right, title, or license to the Compatibility Logo or any
other Sun trademark, and is specifically granted no right or
license to sublicense the Compatibility Logo or any other Sun
trademarks. This License shall apply and pass through to Licensee's
distributors who distribute Licensee's Products as transferred by
Licensee (i.e., without any modifications to the Product, product
packaging, documentation or other materials) ("Distributors").
Licensee shall provide notice of this License to and enforce its
terms with Distributors. Sun shall be entitled to enforce the terms
of this License directly against any Distributor in the event
Licensee fails to do so. All subsequent references herein to
"Licensee" shall include and apply to "Distributors".
3.TERRITORY
Licensee shall not use any Compatibility Logo on or in Licensee's
Products distributed via tangible media (e.g., CD or diskettes) or
on any other tangible materials (e.g., user documentation) in
countries other than those listed below ("Territory"), unless Sun
expressly agrees in writing beforehand to extend the Territory
(which Sun may refuse to do in its sole discretion). This
territorial restriction shall not apply to on-line distribution of
Licensee's Products over the Internet. Licensee shall pay all
costs, including fees for legal services, registrations, recordals,
and foreign language translations associated with any extension of
the Territory requested by Licensee. Sun may eliminate any country
from the Territory if it determines in its sole judgment that Use
or continued use of the Compatibility Logo in such country may
subject Sun or any third party to legal liability, or may
jeopardize the Compatibility Logo or any Sun trademark in that or
any other country. In such event, Licensee shall promptly cease all
use of the Compatibility Logo in such countries upon written notice
from Sun.
Australia
Austria
Belgium
Benin
Netherlands
Luxembourg
Brazil
Burkino Faso
Cameroon
Canada
20
Central African Republic
Chad
Chile
China (P.R.C)
Columbia
Congo
Czech Republic
Denmark
Egypt
France
Gabon
Germany
Greece
Guinea
Hong Kong
Hungary
India
Indonesia
Israel
Italy
Ivory Coast
Japan
Mali
Malaysia
Mauritania
Mexico
New Zealand
Niger
Norway
Philippines
Portugal
Russia
Senegal
Singapore
South Korea
Spain
Sweden
Switzerland
Taiwan
Thailand
Togo
Turkey
Ukraine
UAE
U.K.
United States
Venezuela
4.CERTIFICATION
License applies only to versions of Licensee's Products that have
successfully passed the Java Test Suites made available by Sun to
Licensee pursuant to the TLDA, and which otherwise fully comply
with all other compatibility and certification requirements of the
TLDA. Upon thirty (30) days written notice by Sun no more than two
(2) times per calendar year, Licensee shall permit Sun to inspect
and test any Branded Products at a mutually agreeable location to
ensure that they meet the compatibility requirements of the TLDA.
Upon request by Sun, Licensee shall promptly make any modifications
to any version of a Branded Product necessary for it
to meet such compatibility requirements.
5.LOGO AND TRADEMARK USAGE
Licensee shall use the Compatibility Logo only as specified in any
guidelines or policies made by Sun concerning the appearance,
placement or use of the Compatibility Logo ("Logo Guidelines").
Licensee shall: (i) use only approved logo artwork provided by Sun,
(ii) for tangible media, display the Compatibility Logo on external
product packaging, documentation, and media (disk, CD-ROM, tape,
etc.); (iii) for online versions of Licensee's Product, display the
Compatibility Logo on web pages featuring information about the
Product in GIF images that point to the current Sun Java page
(xxxx://xxxx.xxx.xxx) via hypertext link; (iv) for both
tangible~media and online versions, display the Compatibility Logo
on "splashscreens" appearing upon launch of Licensee's Product, if
any, and in general product information screens (e.g., "About",
"Help", "Info"); (v) display the Compatibility Logo on tangible
marketing collateral featuring Licensee's Products, including
advertisements and datasheets; and (vi) not display Compatibility
Logo more prominently or larger than Licensee's company name/logo
and product name/logo, wherever displayed.
Licensee shall comply with the current versions of the Sun
Trademark & Logo Policies and the Java/'HotJava Trademark
Guidelines [xxxx://xxxx. xxx.xxx/xx_xxxxxxxxxx. html], including
but not limited to using the Java xxxx as an adjective followed by
generic descriptors, marking the Java xxxx with a TMsymbol, and
attributing the Java xxxx as a trademark of Sun Microsystems, Inc.
in a legend on packaging, splashscreens, web page, and other
collateral and materials. Licensee may not include any Sun
trademark (e.g., Sun, Java, HotJava, Solaris, etc.) in Licensee's
company, business or subsidiary names, or in the name of any of
Licensee's products, services, technologies, or web pages. Licensee
shall promptly modify any usage and any material that does not
conform to the Logo Guidelines, the Sun Trademark & Logo Policies,
or the JavatHotJava Trademark Guidelines upon notice from Sun
specifying the non- conformance. Licensee shall notify its
distributors and customers of any such non-conformance as to
materials or products already distributed, as may be reasonably
requested by Sun.
0.XXXXXXXXXX OF TRADEMARKS AND LOGOS
Sun is the sole owner of the Compatibility Logos (including the
marks depicted therein) and all goodwill associated therewith.
Licensee's use of the Compatibility Logos inures solely to the
benefit of Sun. Licensee shall not do anything that might harm the
reputation or goodwill of the Compatibility Logo. Licensee shall
not challenge Sun's rights in or attempt to register the
Compatibility Logo, or any other name or xxxx owned by Sun or
substantially similar thereto. Licensee shall take no action
inconsistent with Sun's rights in the Compatibility Logo. If at any
time Licensee acquires any rights in, or registrations or
applications for, the Compatibility Logo by operation of law or
otherwise, it will immediately upon request by Sun and at no
expense to Sun, assign such rights, registrations, or applications
to Sun, along with any and all associated goodwill. Licensee shall
assist Sun to the extent reasonably necessary to protect and
maintain the Compatibility Logo worldwide, including but not
limited to giving prompt notice to Sun of any known or potential
infringement of the Compatibility Logo, and cooperating with Sun in
the preparation and execution of any documents necessary to record
this License as may be required by the laws or rules of any
country. Sun may at its option commence, prosecute or defend any
action or claim concerning the Compatibility Logo in the name of
Sun or Licensee, or join Licensee as a party thereto. Sun shall
have the right to control any such litigation. Licensee shall not
commence any action regarding the Compatibility Logo. Sun shall
reimburse Licensee for the reasonable costs associated with
providing such assistance, except to the extent that any such costs
result from a breach of the License by Licensee.
22
IN WITNESS WHEREOF, the parties hereby execute this Agreement through the
authorized representatives whose names appear below
SUN MICROSYSTEMS, INC.
LICENSEE
By:/s/ Xxxx Xxxxxx By: /s/ X. Xxxxx
Name: Xxxx Xxxxxx Name: Xxxxxxxx Xxxxx
Title: President, JavaSoft Title: Director & Secretary
Date: 7-19-96 Date: 19 July 1996
COMPATIBILITY LOGOS LICENSED HEREUNDER
23
[JAVA COMPATIBLE LOGO]
4-Color on Black or Dark Colored Background
The master Java Compatible identity, i.e.,. type and cup graphic.
are custom art and cannot be modified from the repro art. When it
appears as 4-color process against a black or dark colored
background. the word Java and steam print Red (1OQM, lOQY) with a
white drop shadow behind the steam. The Compatible and the cup
print Purple (80C, 75M) with a white drop shadow behind the cup.
Background trapezoid prints white.
[JAVA COMPATIBLE LOGO]
4-Color on Xxxx or Light Colored Background
The master Java Compatible identity, ie. type and cup graphic, are
custom art and cannot be modified from the repro art. When it
appears as 4-color process against a xxxx or light colored
background, the word Java and steam print Red (lOOM, lOOY) with a
white drop shadow behind the steam. The word Compatible and the cup
print Purple (8OC, 75M) with a white drop shadow behind the cup.
Background trapezoid prints white.
[JAVA COMPATIBLE LOGO]
4-Color on a white background
The master Java Compatible identity, le. type and cup graphic, are
custom art and cannot be modified from the repro art. When it
appears as 4-color process against a white background, the word
Java and steam print red (1OO~, 1OOY) with a white drop shadow
behind the steam. The word Compatible and the cup print Purple ~
75~~ with a white drop shadow behind the cup. Background trapezoid
prints black.
[JAVA COMPATIBLE LOGO]
2-Color on Black or Dark Colored Background
The master Java Compatible identity, i.e. type and cup graphic, are
custom art and cannot be modified from the repro art. When it
appears as 2-color against a black or dark colored background, the
word Java and steam print Pantone PMS485C Red with a white drop
shadow behind the steam. The word Compatible and the cup print
Pantone PMS2665C Purple with a white drop shadow behind the cup.
Background trapezoid prints white.
[JAVA COMPATIBLE LOGO]
2 color on Xxxx or Light Colored Background
The master Java Compatible identity, ie. type and cup graphic, are
custom art and cannot be modified from the repro art. When it
appears as 2-color against a xxxx or light colored background, the
word Java and steam print Pantone PMS485C Red with a white drop
shadow behind the steam. The word compatible and the cup print
Pantone PMS2665C Purple with a white drop shadow behind the cup.
Background trapezoid prints white.
[JAVA COMPATIBLE LOGO]
2-Color on a White Background
The master Java Compatible identity, i.e. type and cup graphic,
are custom art and cannot be modified from the repro art. When it
appears as 2-color against a white background, the word Java and
steam print Pantone PMS485C Red with a white drop shadow behind the
steam. The word Compatible and the cup print Pantone PMS2665C
Purple with a white drop shadow behind the cup Background trapezoid
prints black.
[JAVA COMPATIBLE LOGO]
Black + White on Black or Dark Colored Background
The master Java Compatible identity, le. type and cup graphic. are
custom art and cannot be modified from me repro art. When Lt
appears as black + wh~te against a black or cark colored
background,, the type. cup and steam print white. Background
trapezoid prints 50% Black.
[JAVA COMPATIBLE LOGO]
Black + White on Xxxx or Light
Colored Background
The master Java Compatible identity, je. type and cup graphic, are
custom art and cannot be modified from the repro art. When it
appears as black + white against a xxxx or light colored
background, the type, cup and steam print black with a white drop
shadow behind the cup and steam. Background trapezoid prints white.
[JAVA COMPATIBLE LOGO]
Black + White on a White
Background
The master Java Compatible identity, le type and cup graphic are
custom art and cannot be modified from the repro art. When it
appears as black + white against a white background. the type, cup
and steam print black with a white drop shadow behind the cup and
steam. Background trapezoid prints 50% black.
JYRA RESEARCH INC.
00 Xxxxxxx Xxxxxx
Xxxxxx XX0 0XX
Tel: 00 00 000 0000
Fax: 00 00 000 0000
July 11, 1996
Sun Microsystems, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx
00000
Attn: Xxx Patch, General Counsel
Technology License and Distribution Agreement
Dear Mr. Patch:
This Letter Agreement will confirm the agreement between Jyra
Research Inc. ("Jyra") and Sun Microsystems, Inc. ("Sun") regarding
the terms and conditions under which Jyra will be entitled to
disclose information regarding the Technology License and
Distribution Agreement, dated June 29, 1996, entered into between
Sun and Jyra.
Sun acknowledges the following: Jyra is a startup company in
need of capital. For Jyra to obtain future financing in a lawful
manner, whether by incurring debt or by sale of equity, Jyra may be
required from time to time to make certain disclosures and exhibit
copies of agreements to which it may be or become a party. The
Technology License and Distribution Agreement between Sun and Jyra
(the "Technology License") may be deemed material from the
viewpoint of a prospective lender or shareholder, and therefore
disclosure of its existence and terms may become necessary. As a
legal or contractual condition to Jyra's lawful incurring of debt
or sale of equity or in fulfillment of other disclosure obligations
of Jyra relating to its securities, from time to time, Jyra may be
required to disclose the existence and terms of the Technology
License to third parties and to exhibit or file copies of the
Technology License with securities exchanges and with certain
governmental or quasi-governmental agencies. Some such files may be
open to examination by the public. Although Sun's policy, adopted
as a matter of business prudence, is to require its licensees to
maintain the confidentiality of the existence and terms of
documents such as the Technology License, Sun wishes to avoid
interfering unduly with Jyra's ability to obtain financing and
issue its shares.
Therefore, not less than twenty (20) days before disclosing the
existence or terms of the Technology License to any third parties
in a manner prohibited by the Technology License, Jyra will submit
to Sun a written statement containing all material terms of such
proposed disclosure and its reasons therefor, together with Jyra's
request that Sun approve such disclosure within ten (10) days
thereafter. Within said ten (10) days, Sun will complete such
review as it deems appropriate of such written statement and notify
Jyra in writing of whether Sun approves or disapproves Jyra's
prospective disclosure. In the event that Sun disapproves Jyra's
prospective disclosure, Sun shall contemporaneously state its
reasons therefor with particularity in writing. Jyra shall not
make such disclosures as may be disapproved by Sun in such manner,
provided, however, that Sun shall not unreasonably withhold or
delay its approval and shall give due weight in its consideration
to both Jyra's and Sun's interests in the matter.
In connection with a current offering of shares of Jyra's common
stock, Jyra has prepared an Amendment to its Offering Memorandum
which describes the material elements of the agreement with Sun,
attached hereto as Appendix A. Sun acknowledges that the Amendment
will be distributed to prospective investors in Jyra, and, to
facilitate trading of Jyra's shares in the over- the-counter market
in the United States, to the National Association of Securities
Dealers, Standard & Poors Corporation Records, and a registered
broker-dealer firm to enable it to fulfill its due diligence
requirements. Jyra undertakes to xxxx the Amendment as "Private and
Confidential" and to notify all recipients of the Amendment of its
private and confidential nature.
Anything contained herein to the contrary notwithstanding,
under no circumstances shall Jyra disclose Java Source Code or
Technology, as those terms are defined in the Technology License,
except as may be permitted pursuant to the Technology License.
If you are in agreement with the above, please sign and
return the enclosed photocopy of this Letter Agreement on or before
July 25, 1996, and this Letter Agreement will become our entire
understanding.
Very truly yours,
JYRA RESEARCH INC.
By: /s/ Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx
Secretary
READ AND AGREED:
SUN MICROSYSTEMS, INC.
by: /s/ Xxx Patch
Xxx Patch
General Counsel
Appendix A
PRIVATE AND CONFIDENTIAL
Amendment Number 1
dated July 1, 1996 to
OFFERING MEMORANDUM
(June 19, 1996)
JYRA RESEARCH INC.
00 Xxxxxxx Xxxxxx
Xxxxxx XX0 0XX
Tel: 00 00 000 0000
Fax: 00 00 000 0000
$600,000 Minimum - $900,000 Maximum
Offering of Common Shares at $0.40 per Share
Offering of 1,500,000 shares (Minimum) to 2,250,000 shares
(Maximum) of capital stock, $0.001 per share par value ("Shares"),
of Jyra Research Inc. ("Jyra" or the "Company") at a price of $0.40
per Share.
On June 29, 1996, the Company entered into a Technology
License and Distribu- tion Agreement ("Agreement") with Sun
Microsystems, Inc. ("Sun"). Under the Agreement, the Company was
granted a worldwide non-exclusive license to develop and distribute
products based upon Sun's eJavaOS technology (the "Java
Technology"). The Agreement does not prohibit the Company from
using technology which is competitive with Java Technology.
Although Java Technology is a yet-untested work in progress,
since Management expects Java Technology to be a suitable basis for
the Company's initial products, Management intends to develop the
Company's Probe and related products based in large part upon Java
Technology.
Pursuant to the Agreement, the Company is required to meet
three principal payment obligations to Sun, consisting of: P.
upfront license fees; per unit royalties; and support and update
fees, described as follows:
As an "upfront license fee," the Company is required to pay
Sun [Confidential information has been omitted and has been filed
separately with the SEC.] within thirty days of signing the
Agreement for the first CPU architecture chosen by the Company.
For each additional CPU architecture supported by Sun that may be
chosen by the Company, the Company will be required to pay an
additional "upfront license fee" of. [Confidential infor- mation
has been omitted and has been filed separately with the SEC.]
In addition, as "per unit royalties," for each of the first 5,000
products utilizing Java Technology to be sold by the Company, the
Company will be required to pay Sun a royalty of $66 per unit; for
each such product in excess of the first 5,000, the Company will
be required to pay Sun a royalty of $20 per unit.
In addition, as "support and update fees," the Agreement
requires the Company to pay Sun: (i) $50,000 per year for the
period during which the Company is paying "per unit royalties" of
$66; and (ii) $300,000 per year for the period when the Company is
paying Sun "per unit royalties" of $20.
The Agreement is capable of ending either by expiration or
termination. The Agreement is scheduled to expire at the end of
its stated initial term of five (5) years, after which the Company
may, at its option, elect to renew the Agreement for as many as
five successive terms of one (1) year each. If the Agreement ends
by expiration of any such term, then, after expiration, the Company
may continue to sell its products incorporating Java Technology as
such technology existed at the time of expiration, subject always
to the Company's continuing obligation to pay "per unit royalties."
Alternatively, if the Agreement ends by termination (as
distinguished from expiration), the Company would be required to
cease selling any products incorporating Java Technology
immediately, at which point the Company would very likely have no
practical alternative but to rewrite its products based upon
alternative technology. There can be no assurance that such
alternative technology would prove equally suitable for the
Company's products. It is possible for either party to terminate
the Agreement on grounds of the other party's breach, or upon
grounds stated in the Agreement. The Company also has the
contractual right, at its option, to elect to terminate the
Agreement for its convenience effective as early as the end of the
second year of the initial term.