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Exhibit 10.18
XXXXX & XXXXXXXXXX COMPUTER CORPORATION
SOFTWARE LICENSING AGREEMENT
(SOURCE CODE)
THIS SOFTWARE LICENSING AGREEMENT (the "AGREEMENT") made and entered into as of
May 8, 1997 (the "EFFECTIVE DATE") by and between XXXXX & XXXXXXXXXX COMPUTER
CORPORATION ("E&S"), a Utah corporation, and the party executing below
("LICENSEE"), each having an office for the conduct of business at the
addresses indicated below (E&S and Licensee are hereinafter referred to
individually as a "PARTY" and collectively as the "PARTIES").
The Parties agree that the terms and conditions herein shall govern the license
of the Licensed Product described in the attachments hereto and incorporated
herein.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives.
XXXXX & XXXXXXXXXX COMPUTER ACCELGRAPHICS, INC.
CORPORATION
BY: /S/CR Maule____________________ BY: /S/ Xxxxx Uhlin___________________
NAME: Xxxxxxx X. Maule_____________ NAME: Xxxxx Uhlin_____________________
TITLE: VP/GM, Desktop Graphics_____ TITLE: VP Engineering________________
DATE: _5-8-97______________________ DATE:_4-6-97__________________________
ADDRESS: ADDRESS:
000 Xxxxx Xxxxx 0000 Xxxxxx Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000 Xxx Xxxx, XX 00000
TERMS AND CONDITIONS
1.0 DEFINITIONS
1.1 "Attachments" means attachments, schedules, exhibits and addenda
to this Agreement describing the Licensed Product, Documentation, license
fees, royalties, and any special terms and conditions pertaining hereto.
1.2 "Confidential Information" means that information which E&S or
Licensee desire to protect against unauthorized disclosure or use and which is
(i) disclosed in tangible form clearly marked or identified as confidential or
proprietary at the time of disclosure or (ii) disclosed in non-tangible form,
identified as confidential or proprietary at the time of disclosure, and
summarized sufficiently for identification and designated as confidential or
proprietary in a written memorandum sent to the receiving Party within thirty
(30) days after disclosure. Confidential Information may include information
of third parties. The terms and conditions of this Agreement shall be
considered Confidential Information.
1.3 "Derivative Work(s)" means a work which is based upon the
Licensed Product, or any portion thereof, such as a revision, modification,
port, translation, abridgment, condensation, expansion, collection,
compilation, or any other form in which the Licensed Product or portion thereof
may be recast, transformed or adapted, and which, in the absence of this
Agreement or other authorization by E&S, would constitute a copyright
infringement.
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1.4 "Documentation" means the manuals, guides, or other documentation
provided for use with the Licensed Product, if any, as are more fully described
in Attachment 1 hereto.
1.5 "Error" means any reproducible failure of the Licensed Product to
perform its intended functions as stated in the Documentation.
1.6 "Licensed Product" means (a) the programs and databases more
particularly described in Attachment 1 hereto, and (b) all programs and
databases subsequently licensed to Licensee by E&S, whether or not identified
to this Agreement in writing, unless specifically covered by a separate license
agreement, including, in both cases, modifications to such programs and
databases permitted by Section 2.1 hereof.
1.7 "REALimage(TM) Technology" means the REALimage(TM) 1000 rendering
controller chip technology described in the Documentation, and enhancements and
improvements to that technology.
1.8 "Source Code" means a series of instructions or program
statements written in a high-level computer language. Source Code is normally
readable by persons trained in the particular computer language in question,
and is normally translated into machine-executable binary or object code by
means of a compiler, assembler, or interpreter.
1.9 "Source Licensed Product" means Source Code for the Licensed
Product.
2.0 LICENSE GRANT AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of this
Agreement, including the payment by Licensee of the license fee or royalty
specified in Attachment 2, E&S hereby grants to Licensee a non-exclusive,
nontransferable, worldwide license (a) to copy, use, modify and prepare
Derivative Works of the Source Licensed Product for the sole purpose of
developing applications, including driver software, to operate only on or with
hardware that utilizes the E&S REALimage(TM) technology, (b) to copy,
distribute, perform and sublicense to end users, in executable or binary code
form only, the applications so developed from Licensed Product through all its
channels of distribution, including resellers, OEMs, and VARs and (c) to copy,
modify, prepare Derivative Works of and redistribute Documentation provided with
the Licensed Product. The license granted herein is only for the purposes
expressly set forth in this Section 2.1.
2.2 Use by Licensee's End Users. Licensee agrees to indemnify,
defend, and hold E&S harmless for, from, and against any claims, damages, or
litigation costs resulting from or relating to the distribution or use of
Licensed Product or applications developed from Licensed Product by third
parties claiming through Licensee, regardless of the form of the action, except
those claims, damages and costs fro which E&S is responsible pursuant to
Section 10 hereof.
2.3 Error Notification. Licensee agrees to promptly inform E&S of all
Errors, and any modification, addition, procedure or routine intended to
correct the practical adverse effect of any such Error. Notwithstanding the
foregoing, E&S shall not have, and expressly disclaims, any duty or obligation
to correct, attempt the correction of, or provide a work-around or avoidance
procedure for, any Error, or to provide Licensee with updates, upgrade, or
revisions to the Licensed Product.
2.4 Periodic Updates. So long as this Agreement is in effect, E&S
shall provide Licensee with the source code for the general release of the
reference source software for the Licensed Product corresponding to the version
of the chipset embodying the REALimageTM Technology which is then being
purchased by Licensee, provided that: (a) Licensee is then purchasing such
chipset in quantities of 800 units per month, based on a rolling three-month
average, (b) Licensee's last order was placed no later than 60 days previously,
and (c) no event of default on the part of Licensee has occurred and is then
continuing under this Agreement. Such software will be provided to Licensee
when generally released if the conditions to release stated in the preceding
sentence are then satisfied, or when such conditions are satisfied, if later
than the time of general release.
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3.0 OWNERSHIP
3.1 Ownership of the Licensed Product. E&S or its licensors own and
will retain all rights, title, and interests, including but not limited to
trademarks, copyrights, patents, patent rights, trade names, trade secrets, and
other intellectual property rights, in and to the Licensed Product (in both
source and executable or binary code form) and Documentation, and in
algorithms, know-how, ideas, techniques, procedures and concepts embodied
therein. Licensee does not obtain any rights, title, or interests, including
but not limited to such intellectual property rights, in the Licensed Product
by this Agreement, other than the license rights expressly conferred in Section
2.1.
3.2 Ownership of Modifications. Licensee does not obtain by this
Agreement any rights, title, or interests, including but not limited to
intellectual property rights, in Derivative Works, other than the license
conferred in Section 2.1 and as expressly stated in this Section 3.2. Licensee
shall own all rights, title, and interests, including but not limited to
trademarks, copyrights, patents, patent rights, trade names, trade secrets, and
other intellectual property rights, in and to any Derivative Work solely to the
extent of material contributed by or developed for Licensee and modifications
of the Licensed Product made by or for Licensee as permitted by Section 2.1
hereof, together with algorithms, know-how, ideas, techniques, procedures, and
concepts embodied therein.
3.3 License Back of Modifications.
(a) Licensee grants to E&S a nonexclusive, worldwide,
royalty-free license in perpetuity (i) to copy, use, modify, and prepare
derivative works of all Licensee Derivative Works as described in 3.3(b)
(including modifications of the Licensed Product made by or for Licensee), in
both source and executable or binary form, and (ii) to copy, distribute,
perform, and sublicense such Licensee Derivative Works and derivative works of
and any modifications to Licensee Derivative Works, in source form and in
executable or binary form, through all its channels of distribution, including
resellers, OEMs, and VARs.
(b) Licensee shall deliver to E&S source code (in annotated
form if available) and executable or binary code, including compile or build
instructions, for Derivative Works containing fixes to modifications of the
Licensed Product made by or for Licensee), within sixty (60) days of release of
the executable binary code form of such Derivative Works.
4.0 COPYRIGHTS AND OTHER NOTICES
Licensed Product and applications developed from Licensed Product distributed
by Licensee shall contain an appropriate notice indicating that E&S is the
licensing source for the Licensed Product. Derivative Works distributed by
Licensee as permitted hereunder shall contain appropriate notices indicating
that such works are based, in part, on Licensed Product. Documentation and
portions of Documentation used or distributed by Licensee shall contain a
sufficent notice of E&S' copyright therein. Licensee agrees to show any
proprietary legends, identifications, or notices which are embodied in or
affixed to the Licensed Product, or which are affixed to the Documentation
wherever licensee copyright or patent notifications are shown..
5.0 TERMINATION
This Agreement is effective until terminated. If Licensee fails to comply with
any of the material terms and conditions of this Agreement, either party may
terminate this Agreement upon sixty (60) days' written notice to Licensee
specifying any such breach, unless within the period of such notice, all
breaches specified in such notice shall have been remedied, or unless the
breach is one which, by its nature, cannot be fully remedied in sixty (60)
days, but Licensee has undertaken reasonable, good faith efforts toward
remedying the breach within such sixty (60) days, and continues to use
reasonable, good faith and diligent efforts to promptly remedy the breach.
Termination of this Agreement shall not terminate Licensee's obligation to pay
any amounts due E&S hereunder and not then paid, or suclicenses to end users
mnade prior to termination.
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6.0 PAYMENTS
All fees, royalties, and other amounts required to be paid by this Agreement as
specified in Attachment 2 are payable when due, in cash or cash equivalents,
without deduction or offset.
7.0 CONFIDENTIAL INFORMATION
7.1 Restrictions. Each Party shall hold in confidence, and shall use
solely for purposes of or as provided in this Agreement, any Confidential
Information received by it from the other or derived from Confidential
Information and shall protect the confidentiality of such with the same degree
of care that it exercises with respect to its own information of like import,
but in no event less than reasonable care, for a period of five (5) years from
the date of disclosure.
7.2 Exceptions. Notwithstanding any provisions herein concerning
non-disclosure and non-use of the Confidential Information, the obligations of
Section 7.1 shall not apply to any portion of the Confidential information
which:
(a) is now or which hereafter through no act or
failure to act on the part of the receiving Party becomes generally known in
the computer systems industry;
(b) is hereafter furnished to the receiving Party by
a third party without obligation to keep such information confidential;
(c) is independently developed by the receiving
Party without the use of the Confidential Information;
(d) is disclosed to others by the disclosing Party
without restriction;
(e) is required to be disclosed pursuant to a legal,
judicial, or administrative procedure or otherwise required by law; providing
the disclosing Party gives the other Party notice of the proposed disclosure
with sufficient time to seek relief;
(f) is already in the possession of, or known to,
the receiving Party prior to its receipt; or
(g) is approved for release or use without
restriction by written authorization of an officer of the disclosing Party.
Subject to the requirements of Section 7.1 hereof, a receiving Party may
disclose appropriate portions of Confidential Information to its employees who
have a substantial need to know the specific information in question, and to
subsidiaries, affiliates, representatives, agents, auditors, lenders, and
regulators having a legitimate need or right to know, in which event the
receiving Party will make a reasonable effort to minimize the amount of
information disclosed and to cause such persons to maintain the confidentiality
of the information disclosed.
7.3 Injunction. Confidential Information has been and will continue
to be of central importance to the business of a disclosing Party, and its
disclosure to or use by others will cause immediate and irreparable injury to
the disclosing Party, which may not be adequately compensated by damages and
for which there is no adequate remedy at law. In the event of any actual or
threatened misappropriation or disclosure of Confidential Information, the
receiving Party agrees that the disclosing Party will be entitled to an
injunction prohibiting such misappropriation or disclosure, and to specific
enforcement of the receiving Party's obligations hereunder. The foregoing
rights to an injunction and specific performance will be cumulative and in
addition to every other remedy now or hereafter available to disclosing Party
in law or equity or by statute.
7.4 Returning Confidential Information. All materials containing
Confidential Information of the other Party shall be returned to that Party
within thirty (30) days after termination of this Agreement.
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8.0 LIMITED WARRANTY AND DISCLAIMER
8.1 Warranty. The Licensed Product is provided "AS IS," WITHOUT
WARRANTY OF ANY KIND.
8.2 DISCLAIMER. E&S DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY EXPRESS
OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF DESIGN,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, OR
ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. E&S DOES NOT
WARRANT THAT THE LICENSED PRODUCT OR ANY OF ITS PARTS WILL BE ERROR FREE, WILL
OPERATE WITHOUT INTERRUPTION, OR WILL BE COMPATIBLE WITH ANY PARTICULAR
SOFTWARE OR HARDWARE.
9.0 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST REVENUES OR PROFITS OR
OTHER SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF THIS
AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS
ESSENTIAL PURPOSE.
10.0 INDEMNITY
If notified promptly of any action brought against Licensee based on a claim
that the Licensed Product, or any portion thereof, directly infringes any
registered patent, or any copyright or trademark, or is a misappropriation or
theft of a trade secret, E&S will defend such action at its own expense and
will pay all costs and damages (including without limitation, reasonable
attorney's fees) finally awarded in, or in settlement of, any such action,
provided that E&S shall have no liability for any settlement or compromise made
without its consent. To qualify for such defense and payment, Licensee must
allow E&S to control fully, and reasonably cooperate with E&S, in the defense
of such action and all related settlement negotiations. In the event that a
final injunction is obtained against Licensee's use of the Licensed Product or
any portion thereof by reason of such infringement, or if in E&S' reasonable
opinion, the Licensed Product or any portion thereof is likely to become the
subject of a claim, E&S will, at its own expense and in its soles discretion,
either procure for Licensee the right to continue to use the Licensed Product,
replace or modify the Licensed Product so that it becomes non-infringing, or
direct Licensee to cease use of the Licensed Product and refund the aggregate
amount paid therefor by Licensee, less a reasonable sum for use.
11.0 GENERAL
11.1 Choice of Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of Utah,
United States of America (except that the body of law controlling conflict of
laws) and specifically excluding from application to this Agreement that law
known as the United Nations Conventions on the International Sale of Goods.
11.2 Counterparts. This agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
constitute but one and the same instrument.
11.3 Entire Agreement. This Agreement, including all Attachments
hereto, 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 such
subject matter. This Agreement will be fairly interpreted in accordance with
its terms and without any strict construction in favor or against either Party.
Unless otherwise provided herein, this Agreement may not be modified, amended,
rescinded, or waived, in whole or in part, except by a written instrument
signed by the duly authorized representatives of both Parties.
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11.4 Headings. The headings and captions in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement.
11.5 Import and Export Laws. Licensed Product, including without
limitation, technical data, are subject to US export control laws and may be
subject to export or import regulation in other countries. Licensee agrees to
comply with all such laws and regulations, and certifies that neither the
Licensed Product nor any direct product thereof is being or will be exported or
re-exported, directly or indirectly, to any country for which a validated
license is required under US export laws (including but not limited to any
country determined by US export regulatory authorities to be a prohibited
destination) without first obtaining such a validated license. Licensee agrees
to indemnify, defend, and hold E&S harmless for, from, and against any claims,
damages, or litigation costs resulting from or relating to Licensee's failure
to comply with this Section 11.5, regardless of the form of the action.
Licensee's obligations and certification under this Section 11.5 shall survive
termination of this Agreement.
11.6 Notices. All notices required hereunder must be in writing and
delivered either in person or by a means evidenced by a delivery receipt, to
the address first set forth above or as otherwise notified in writing. Such
notice will be effective upon receipt.
11.7 No Rights in Third Parties. This Agreement is made for the
benefit of the Parties, and not for the benefit of any third parties unless
otherwise agreed to by the Parties.
11.8 Relationship of the Parities. No employees, consultants,
contractors, or agents of one Party are agents, employees, franchisees, or
joint ventures of the other Party, nor do they have any authority to bind the
other Party by contract or otherwise to any obligation. No Party will
represent to the contrary, either expressly, implicitly, or otherwise.
11.9 Severability. In the event that any part of this Agreement is
found to be unenforceable, the remainder shall continue in effect, to the
extent consistent with the intent of the Parties as of the Effective Date.
11.10 Successors and Assigns. All the terms and provisions of this
Agreement shall be binding upon and inure tot he benefit of the Aprties hereto,
and their successors and assigns, provided, however, that this Agreement may
not be assigned, in whole or in part, without the non-assigning Party's prior
written consent, which shall not be unreasonably withheld, except in connection
with a reorganization, merger or sales of substantially all the assigning
Party's business or assets to a third party.
11.11 US Government Restricted Rights. If Licensee is acquiring
Software on behalf of the US Government, Software is provided with "Restricted
Rights," as that term is defined in the Federal Acquisition Regulations (FARs)
in 48 C.F.R 52.227-19(c)(2), or its equivalent in the DOD Supplement to the
FARs (DFARs), and use, duplication or disclosure of Software is subject to
restrictions set forth in FARs and DFARs. Contractor/Manufacturer is: Xxxxx &
Xxxxxxxxxx Corporation, 000 Xxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000.
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ATTACHMENT 1
LICENSED PRODUCT
1. Description of Licensed Product: Xxxxx & Xxxxxxxxxx OpenGL 2D and 3D
driver sources and binary for th REALimage Technology, including the
following modules:
Miniport Driver
2D/DDI
2D Frame Buffer Object
State Handler
Software Frame Buffer
3D Frame Buffer Object
OpenGL Lib
URP Rendering Pipeline
SLURP Software Rendering Pipeline
2. Description of Licensed Product:
REALimage 1000 Hardware Reference Manual
REALimage 1000 Programmers Reference Manual
