EXHIBIT 10.3
RESTATED TECHNOLOGY LICENSE AGREEMENT
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This Restated Technology License Agreement (the "Agreement") is made and
entered into as of September 27, 1995 (the "Effective Date") by and between
Radius Inc. with its principal place of business at 000 Xxxxxxx Xxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000 ("Radius"), and Augment Systems Inc., a Delaware
corporation, with its principal place of business at 00 Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 ("Augment").
RECITALS
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A. On July 29, 1994, Radius and Augment entered into a License Agreement
which was subsequently amended on July 25, 1995 (the "Original Agreement").
Under the Original Agreement, Radius granted Augment a limited, non-exclusive
license to develop certain Radius technology known as Skylab.
B. Augment is in the process of soliciting financing as more fully
described in its private placement memorandum dated August 1995 (the
"Financing").
C. Radius and Augment desire to amend and supersede the Original Agreement
with (i) this Agreement and (ii) that certain Sales Agreement executed on even
date herewith and attached hereto as Exhibit A (the "Augment Sales Agreement").
NOW, THEREFORE, in consideration of mutual promises contained herein, the
parties agree as follows:
1. DEFINITIONS
1.1. "APPLE TECHNOLOGY" is the Apple Computer, Inc. ("Apple") proprietary
technology contained in Skylab.
1.2. "RADIUS TECHNOLOGY" is the Radius proprietary technology relating to
Skylab and/or Rocket, including the Skylab chassis, packaging, power supply,
motherboard, disk array subsystem, software code that runs on top of the Vertex
real-time kernel, and Rocket technology consisting of NuBus-based multiprocessor
cards, daughtercards and software.
1.3. "CONFIDENTIAL INFORMATION" means information disclosed by one party to
the other which is confidential and proprietary to the disclosing party.
Confidential Information includes but is not limited to trade secrets, source
code, schematic diagrams, technical information and business and marketing
plans.
1.4. "SKYLAB" means a multiprocessing file and compute server product
developed by and proprietary to Radius which consists of several types of
technology including the Radius Technology and the Apple Technology (as defined
herein).
1.5. "INTELLECTUAL PROPERTY RIGHTS" means patent rights, rights in patent
applications, copyright rights (including, but not limited to, rights in
audiovisual works and the right to make derivative works), mask work rights,
trade secret rights, and any other intellectual property rights.
1.6. "LICENSED SOFTWARE" means the software related to Skylab and/or Rocket
provided to Augment by Radius under either (i) the Original Agreement or (ii)
this Agreement, or owned by Radius as a result of Section 3.2 of the Original
Agreement.
1.7. "MODIFIED TECHNOLOGY" means any and all modifications made by or on
behalf of Augment to the Radius Technology, the Licensed Software, and (to the
extent any agreement between Augment and Apple is consistent herewith) the Apple
Technology. A modification means any change to the hardware or software as
described in the engineering documentation provided by Radius for Skylab and
Rocket products.
1.8. "MORAL RIGHTS" mean any rights of paternity or integrity, any right to
claim authorship of any works of authorship, materials or writings, to object to
any distortion, mutilation or other modification of, or other derogatory action
in relation to, any works of authorship, materials or writings, and any similar
right, existing under judicial or statutory law of any country in the world, or
under any treaty, regardless of whether or not such right is denominated or
generally referred to as a "moral right."
2. TECHNOLOGY LICENSES
2.1. HARDWARE LICENSE. Subject to the terms and conditions of this
Agreement, Radius hereby grants Augment, and Augment accepts a limited,
exclusive (except as to Radius and subject to the limitations and restrictions
set forth in this Agreement), worldwide, non-transferable, royalty-bearing
license (i) to use, modify, and otherwise create derivative works of Skylab and
(ii) to reproduce, manufacture, market, and distribute products based on Skylab.
2.2. SOFTWARE LICENSE. Subject to the terms and conditions of this
Agreement, Radius hereby grants Augment, and Augment accepts a limited,
exclusive (except as to Radius and subject to the limitations and restrictions
set forth in this Agreement), worldwide, non-transferable, royalty-bearing
license (i) to use, modify, and otherwise create derivative works of the
Licensed Software in source code form and (ii) to reproduce, manufacture,
market, distribute, and sublicense (without the right to reproduce, unless
Augment notified Radius of the sublicensee's name, address, telephone number,
and individual contact, in writing prior to granting a sublicense with the right
to reproduce) software based on the Licensed Software only in object code form
and only in connection with the distribution and marketing of products based on
Skylab.
2.3. LICENSES. The licenses granted pursuant to sections 2.1 and 2.2 shall
be referred to as the "Radius Licenses."
2.4. LIMITATIONS ON THE RADIUS LICENSES. The Radius licenses shall be
subject to the following additional limitations:
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i) Augment shall not attempt to reverse engineer any portions of the
Licensed Software which may be provided to Augment only in object code form.
ii) Augment may not distribute any source code incorporating any of
the Radius Technology.
iii) Notwithstanding the exclusivity provisions in the Radius
Licenses, Radius retains the right to do what it has licensed Augment to do.
iv) Augment understands that portions of the Radius Technology may be
incorporated into existing, planned, or future Radius products. Augment agrees
that Radius remains free to use the Radius Technology in any of its existing,
planned, or future products, whether sold under Radius' brand or OEMs'.
2.5. TERMINATION OF EXCLUSIVITY. The Radius Licenses shall become
non-exclusive without notice to Augment immediately if the number of Royalty
Bearing Units is less than the minimum amounts stated in Exhibit B for any two
consecutive quarters and Augment fails to pay the minimum royalty due in
accordance with Exhibit B.
2.6. RADIUS ATTRIBUTION. Augment will indicate on products based on the
Radius Technology or Modified Technology that are distributed and on all related
collateral material, in a manner that is agreed to by both parties, that Radius
is the developer and licensor of the Radius Technology. In providing such
attribution, Augment will comply with such reasonable trademark usage guidelines
and policies as Radius may determine from time to time. Nothing contained in
this Agreement shall give Augment any rights in any Radius trademark, trade
name, logo, or trade designation. Radius shall have the right to approve or
disapprove any product or collateral material on which Radius or its trademarks
are used before Augment's public distribution of such product or collateral
material, such approval shall not be unreasonably withheld.
2.7. RESERVATION. Radius reserves all rights and licenses in and to the
Radius Technology not expressly granted to Augment herein.
3. OWNERSHIP AND PROPRIETARY RIGHTS.
3.1. OWNERSHIP OF LICENSED SOFTWARE. All right, title, and interest
(including all know-how and all world-wide Intellectual Property Rights), in and
to the Licensed Software shall remain in Radius or its licensors. This Agreement
is not intended to and shall not be interpreted as transferring any ownership
right in the Radius Technology to Augment.
3.2. OWNERSHIP OF MODIFIED TECHNOLOGY AND LICENSE TO RADIUS. Subject to
Radius' (and, if applicable, Apple's) Intellectual Property Rights in the
underlying technology, all right, title, and interest (including all know-how
and all world-wide Intellectual Property Rights), in and to the Modified
Technology shall belong to Augment.
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3.3. LICENSE TO RADIUS. Augment hereby grants to Radius an irrevocable,
permanent, nonexclusive, worldwide, fully paid-up, royalty-free right and
license (the "License Back to Radius") under the Intellectual Property Rights to
the Modified Technology to reproduce, make derivative works of, display
publicly, make, use, import, sell, lease or otherwise dispose of products
covered by such Intellectual Property Rights and to practice any process or
method covered by such Intellectual Property Rights, and to authorize others to
do any of the above. The License Back to Radius includes, without limitation,
the right to sell products with, or intended for use in combination with
apparatuses or in a method where such combination or method is covered by such
Intellectual Property Rights.
3.4. PROPRIETARY NOTICES. All proprietary notices, labels or marks relating
to Radius' Intellectual Property Rights (the "Notices") incorporated in, marked
for fixed to the Radius Technology shall not be removed, altered or obliterated
by Augment. Augment shall duplicate any such Notices on any copies, whether made
in whole or in part, in any form. Augment shall only distribute software based
on the Licensed Software with an appropriate copyright notice. Augment shall
(for the duration of any patent and not longer) include such patent notice(s) in
the packaging, documentation, software and/or products as Radius requests (e.g.,
U.S. Patent No. X,XXX,XXX).
3.5. APPLE TECHNOLOGY. Augment understands that a portion of Skylab is
composed of the Apple Technology which is proprietary to Apple. The Apple
Technology was licensed to Radius. Augment understands that the license from
Apple does not allow Radius to sublicense or transfer Radius' rights to the
Apple Technology. Augment understands that it must contact Apple regarding
rights to the Apple Technology, and that Radius is in no way responsible for
Apple's decision with respect thereto.
4. COMPENSATION
4.1. ROYALTIES. Augment shall pay Radius royalties for each unit sold of
products based on the Radius Technology or the Modified Technology, as set forth
below:
For Units 1-200: The greater of (i) one thousand five- hundred
dollars ($1,500.00) or (ii) the amount calculated by multiplying two percent
(0.02) and the purchase price (in United States dollars at the F.O.B. point)
paid to Augment therefor.
For Units 201-1000: The greater of (i) one thousand dollars
($1,000.00) or (ii) the amount calculated by multiplying one and one-half
percent (0.015) and the purchase price (in United States dollars at the F.O.B.
point) paid to Augment therefor.
For Units 1001 and over: The greater of (i) seven- hundred and fifty
dollars ($750.00) or (ii) the amount calculated by multiplying one percent
(0.01) and the purchase price (in United States dollars at the F.O.B. point)
paid to Augment therefor.
Royalties will not accrue in connection with any units distributed by
Augment without consideration (such as demo units or loaners), or used
internally for testing and quality
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assurance purposes (collectively, "Non-Royalty Bearing Units"). All other units
shall bear royalties ("Royalty Bearing Units").
Royalties shall continue to accrue until the cumulative total of
Royalties paid by Augment to Radius under this Agreement shall equal ten million
dollars ($10,000,000.00), in which event Augment's duty to pay Royalties and its
duties under Section 4.4 shall cease.
At any time, in Augment's sole discretion, Augment may make advance
payments of Royalties. Radius shall accept such Royalties and credit Augment
therefor. Augment shall notify Radius regarding the allocation of such advance
Royalties to actual Royalties as they accrue. In no event shall advanced
Royalties paid by Augment be refundable or refunded.
4.2. PAYMENT. Augment shall make payments of all royalties due to Radius,
within thirty (30) days following the end of each calendar quarter. On any
overdue payments, Augment shall pay a one and one-half percent (11/2% per month
finance charge, or, if lower, the highest rate then permitted by law upon the
unpaid balance until the date of payment. All payments shall be made in United
States dollars.
4.3. TAXES. In addition to the royalties set forth above, Augment will pay
all sales, use, and other taxes, if any, imposed as a result of payment of the
royalties, other than taxes measured by Radius' net income.
4.4. RECORDS AND REPORTS
4.4.1. RECORDS. Augment shall keep accurate books and records, in
accordance with generally accepted accounting principles consistently applied,
which are reasonably necessary in order to ascertain the amount of royalties
payable to Radius.
4.4.2. QUARTERLY ROYALTY REPORTS. Augment shall report to Radius on a
calendar quarterly basis the number of units sold and the total amount of
royalties due and owing to Radius for such the calendar quarter. The reports
described in this section 4.4.2 shall also report the number of units
distributed without consideration or used internally for testing and quality
assurance purposes. The reports described in this section 4.4.2 shall be made to
Radius no later than thirty (30) days after the close of each calendar quarter
and shall accompany the quarterly royalty payment set forth above.
4.4.3. AUDIT. Radius shall have the right to make no more than once per
calendar year an examination and audit, as its own expense, during normal
business hours, of Augment's books and records which may contain information
bearing upon the royalty amounts due hereunder for a period of time up to three
(3) years prior to the date of the audit. Prompt adjustment shall be made by
Augment for any underpayments disclosed by such audit. In the event that any
quarterly report understates the number claimed to be Non-Royalty Bearing Units,
it shall be conclusively established that the units covered by such
understatement are Royalty Bearing Units. In the event that any quarterly report
understates the compensation due to Radius for any calendar quarter by more than
five percent (5%), Augment shall pay any shortfall indicated by such audit plus
reimburse Radius for the cost of such audit.
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5. WARRANTIES AND DISCLAIMERS
5.1. LIMITED WARRANTY. Radius warrants to Augment that to the best of its
knowledge, with the exception of rights held by Apple, (i) it has sufficient
right, title and authority to grant to Augment all licenses and rights that it
grants under this Agreement and (ii) it has not received notice of any claim
that the Radius Technology violates or infringes the Intellectual Property
Rights of any third party.
5.2. DISCLAIMER OF OTHER WARRANTIES. THE PARTIES ACKNOWLEDGE AND AGREE THAT
THE LICENSED SOFTWARE AND THE RADIUS TECHNOLOGY ARE IN ALL RESPECTS PROVIDED ON
AN "AS IS" BASIS. THE PARTIES DISCLAIM ANY AND ALL WARRANTIES RELATING TO THE
RADIUS TECHNOLOGY, THE LICENSED SOFTWARE, AND THE MODIFIED TECHNOLOGY, INCLUDING
ANY UPDATES TO ANY OF THESE. WHETHER EXPRESS, IMPLIED, ARISING FROM COURSE OF
DEALING OR USAGE OF TRADE, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO ANY
WARRANTY OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, OR WARRANTY OF MERCHANTABILITY.
6. LIMITATION OF LIABILITY
6.1. GENERAL LIMITATION. EXCEPT IN THE EVENT OF A MATERIAL BREACH BY EITHER
PARTY OF SECTION 10, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR
USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN
CONTRACT OR TORT (INCLUDING NEGLIGENCE), EVEN IF THE OTHER PARTY OR ANY OTHER
PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING
THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
6.2. ABSOLUTE LIMIT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT,
RADIUS' LIABILITY FOR DAMAGES HEREUNDER FOR ANY CAUSE WHATSOEVER SHALL IN NO
EVENT EXCEED THE AMOUNTS RECEIVED BY RADIUS FROM AUGMENT UNDER THIS AGREEMENT
DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE OCCURRENCE OF ANY EVENT WHICH
GIVES RISE TO THE CAUSE OF ACTION.
7. THIRD PARTY CLAIMS
7.1. CLAIMS BY THIRD PARTIES. The parties will promptly notify each other
in the event that any party becomes aware of the assertion of, or the
probability of the assertion of, any claim of any kind by a third party against
either party arising from or in connection with the Radius Technology, the
Modified Technology, or this Agreement.
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7.2. INFRINGEMENT BY THIRD PARTIES.
7.2.1. NOTIFICATION. The parties will promptly notify each other in
the event that any party becomes aware of any infringement of any right in the
Radius Technology or the Modified Technology by a third party.
7.2.2. ENFORCEMENT PROCEEDINGS. Radius will have the first option to
take appropriate legal action to remedy such infringement. Augment, in its sole
discretion, may provide Radius with assistance in such action. If Radius fails
to initiate and pursue such action in a reasonably prompt manner following
Augment's written request that it do so, then Augment will have the right to
initiate and pursue such action. Radius, in its sole discretion, may provide
Augment with assistance in such action.
7.2.3. PROCEEDS. If Radius institutes legal action against third party
infringers, it shall retain any proceeds therefrom. If Augment institutes legal
action against third party infringers, any proceeds therefrom shall be allocated
first to Augment's costs and legal fees, next to Radius' costs and legal fees if
it provides assistance under Section 7.2.2, and the remainder divided as
follows: if no licenses to Intellectual Property Rights owned by Radius are
granted in connection with any settlement of the action, two percent (2%) to
Radius and the remainder to Augment.
8. GOVERNMENT REGULATION
8.1. EXPORT CONTROLS. Augment understands that the Radius Technology and
Modified Technology may be restricted by the United States Government from
export to certain countries and Augment agrees that it will not export the
Radius Technology or the Modified Technology in any way that will violate any of
the export control laws or regulations of the United States.
8.2. FEDERAL GOVERNMENT. In no event will Augment deliver the software
related to the Radius Technology or Modified Technology, or any portion thereof,
to any branch or agency of the U.S. Government without a written contract clause
stating that such items will be protected by restricted rights as set forth in
DFAR 252.227-7013 or equivalent rights and without taking all required actions
to preserve such rights including, without limitation, (i) marking the software
with the then-currently prescribed Restricted Rights Legend, and (ii) ensuring
that the contract with the government agency contains the standard Department of
Defense "Rights in Technical Data and Computer Software" clause at DFAR
252.227-7013 or the equivalent clauses for other government agencies.
9. NONSOLICITATION OF EMPLOYEES
During the term of this Agreement, neither party will solicit for hire any
employee of the other unless authorized by the other in writing. Unless
otherwise prohibited by law, this provision will remain in force for one year
following the termination of this Agreement unless such termination occurs
pursuant to Section 11.2(i).
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10. CONFIDENTIAL INFORMATION
10.1. NONDISCLOSURE. The receiving party shall not use the disclosing
party's Confidential Information except as expressly set forth herein or
otherwise authorized in writing by the disclosing party, shall implement
reasonable procedures to prohibit the disclosure, unauthorized duplication,
misuse or removal of the disclosing party's Confidential Information and shall
not disclose such Confidential Information to any third party unless expressly
authorized in accordance with this Section 10. Without limiting the foregoing,
each of the parties shall use at least the same degree of care which it uses to
protect its own proprietary information to prevent the disclosure of
Confidential Information disclosed to it by the other party under this
Agreement, but in no event less than reasonable care.
10.2. EXCEPTIONS. Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information of the other
which:
i) was in the public domain at the time it was disclosed or becomes
in the public domain through no fault of the receiver;
ii) was known to the receiver at the time of disclosure as shown by
the files of the receiver in existence at the time of disclosure;
iii) is disclosed with the prior written approval of the disclosing
party;
iv) was independently developed by the receiver without any use of
the Confidential Information of the other party; or
v) becomes known to the receiver from a source other than the
disclosure without breach of this Agreement by the receiver and otherwise not in
violation of the discloser's rights.
10.3. REMEDIES. Each party acknowledges that any breach of any of its
obligations under this Section 10 is likely to cause or threaten irreparable
harm to the other party, and, accordingly, each party agrees that in such event
the non- breaching party shall be entitled to seek equitable relief to protect
its interests, including but not limited to preliminary and permanent injunctive
relief, as well as monetary damages.
11. TERM
11.1. TERM. This Agreement will commence on the Effective Date and will
continue until terminated as provided in Section 11.2.
11.2. TERMINATION.
i) Either party may immediately terminate this Agreement after giving
written notice (a) upon any proceeding being commenced by or against the other
under any bankruptcy or other law relating to insolvency receivership,
liquidation, or assignment for the benefit of creditors which is not dismissed
within sixty (60) days, (b) if the other party shall
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make a composition with its creditors or an assignment for the benefit of
creditors, (c) if the other party liquidates, dissolves, or ceases as a going
concern, (d) if the other party shall have a receiver appointed over the whole
or any part of its assets.
ii) Either party may immediately terminate this Agreement without
further notice, if the other party materially breaches this Agreement and fails
to cure that breach within thirty (30) days after receiving written notice of
the breach.
iii) Radius may terminate this Agreement at any time following
December 31, 1995, after giving thirty (30) days' prior written notice, if
Augment has not received at least $400,000 in new financing. iv) Radius may
terminate this Agreement at any time following September 30, 1996, after giving
(30) days' prior written notice, if Augment has not delivered at least one unit
of product for beta testing.
11.3. EFFECT OF TERMINATION
i) The licenses granted to Augment under Section 2 shall immediately
terminate upon termination of this Agreement.
ii) Each party shall return or destroy all copies of the Confidential
Information of the other party within thirty (30) days after the effective date
of the termination. At the request of either party, an officer of the other
party will certify in writing that such other party has complied with its
obligations hereunder.
iii) In addition to any Sections which by their express terms survive
termination of this Agreement, Sections 1, 2, 7, 3.1, 3.2, 4, 5, 6, 7.2 (if and
only if legal action has begun, and then only with respect to such on-going
legal action), 8, 9, 10, 11, and 12 will survive the termination of this
Agreement.
12. MISCELLANEOUS
12.1. RELATIONSHIP OF THE PARTIES. Augment's relationship with Radius
during the term of this Agreement will be that of an independent contractor.
Nothing contained herein shall in anyway constitute any association,
partnership, or joint venture between the parties hereto, or be construed to
evidence the intention of the parties to establish any such relationship.
Neither party has any power, right or authority to bind the other party or to
assume or create any obligation or responsibility, express or implied, on behalf
of the other party or in the name of the other party.
12.2. ASSIGNMENT. This Agreement is not assignable by either party without
the prior written consent of the other party, which shall not be unreasonably
withheld, and any attempted assignment in violation of this Section 12.2 will be
null and void. The provisions hereof shall be binding upon and inure to the
benefit of the parties, their successors and permitted assigns.
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12.3. CONTROLLING TERMS AND MODIFICATION. The terms and conditions set
forth in this Agreement will supersede the terms of any purchase order or other
business forms notwithstanding an acceptance or acknowledgment of such business
forms. No modification to this Agreement nor any waiver of any rights shall be
effective unless agreed to in writing by the party to be charged. The waiver of
any breach or default shall not constitute a waive of any other right hereunder
or of any subsequent breach or default.
12.4. NOTICES. All notices and other communications required or permitted
under this Agreement will be in writing and sent via certified, registered, or
overnight mail or by Federal Express, DHL or other overnight delivery carrier to
the other party at the address indicated below or to such other address as a
party may designate by written notice to the other:
To Augment: Augment Systems Inc.
00 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
To Radius: Radius Inc.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: President
Copy to: General Counsel
Fax: (000) 000-0000
Notices will be deemed served when delivered, or if delivery is not
accomplished because of some fault of the addressee, when tendered.
12.5. EQUITABLE RELIEF. Augment acknowledges that Radius owns or has rights
to the Radius Technology. Augment further acknowledges that any breach of its
obligations under this Agreement with respect to these proprietary rights will
cause Radius irreparable injury for which there are inadequate remedies at law
and for which Radius will be entitled to equitable relief in addition to all
other remedies provided by this Agreement or available at law.
12.6. FORCE MAJEURE. Neither party shall be responsible for any failure to
perform due to unforeseen circumstances or to causes beyond its control,
including but not limited to acts of God, war, riot, embargoes, acts of civil or
military authorities, fire, floods, earthquakes, accidents, strikes, or
shortages of transportation, facilities, fuel, energy, labor or materials. In
the event of any such delay, the affected party shall promptly notify the other
in writing and may defer performance under this Agreement for a period equal to
the time of such delay.
12.7. ENTIRE AGREEMENT AND WAVIER. This Agreement and the exhibits hereto
(which are fully incorporated herein by this reference) constitute the entire
agreement between the parties pertaining to the subject matter hereof, and
supersede in their entirety any prior or contemporaneous written or oral
agreements between the parties (other than the Augment Sales Agreement), whether
written or oral, including, without limitation, the Statement of Intent
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Between Radius and Augment dated June 16, 1994 and the Original Agreement.
Verbal statements by either party or its representative will not constitute an
obligation of such party. The parties acknowledge that they are not entering
into this Agreement on the basis of any representations not expressly contained
herein. Any modifications of this Agreement must be in writing and signed by
both parties hereto. The waiver by one party of any default of the other party
shall not waive subsequent defaults of the same or different kind.
12.8. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the United States and the State of California as
applied to agreements entered into and to be performed entirely within
California between California residents.
12.9. CONSTRUCTION AND INTERPRETATION. This Agreement has been negotiated
by the parties and their respective counsel. This Agreement will be interpreted
fairly in accordance with its terms and without any strict construction in favor
of or against any party. In the event any provision, or portion thereof, of this
Agreement is determined to be invalid or unenforceable by a court of competent
jurisdiction, that provision will remain effective to the extent it remains
valid and enforceable. In such event, it is the intention of the parties hereto
that the remainder of the Agreement remain valid and enforceable and, the
parties hereto agree to negotiate in good faith to substitute a valid and
enforceable provision that preserves the intent and economic effect of the
original provision. If the parties cannot agree on such a substitute provision,
the court will draft a provision that is enforceable that follows the parties'
expressed intent and economic effect of the unenforceable clause as closely as
possible.
12.10. DISPUTES; JURISDICTION AND VENUE. The parties hereby submit to the
jurisdiction of, and waive any venue objections against, the United States
District Court for the Northern District of California, the Superior Court of
the State of California for the County of Santa Xxxxx, and the Santa Xxxxx
Municipal Court in any litigation arising out of or related to this Agreement.
The parties expressly waive their rights to a trial by jury in any such
litigation.
12.11. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
RADIUS INC. AUGMENT SYSTEMS INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxx
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Name: Xxxx Xxxxxx Name: Xxxxxx Xxxx
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Title: Vice President Title: CEO
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EXHIBIT A
AUGMENT SALES AGREEMENT
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This Sales Agreement (the "Augment Sales Agreement") is made and entered into as
of August ___, 1995 (the "Effective Date") by and between Radius Inc. with its
principal place of business at 000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000 ("Radius"), and Augment Systems, Inc., a Delaware corporation with its
principal place of business at 00 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
("Augment").
1. DEFINITIONS. Unless otherwise noted, capitalized terms shall have the same
meaning as in the Restated Technology License Agreement.
2. SALE AND PURCHASE. Radius will sell and Augment will purchase assets as set
forth in Exhibit 1 hereto (the "Assets"). The purchase price shall be
$100,316.00. Such purchase price shall be paid by issuance to Radius by Augment
of forty-seven thousand two hundred (47,200) nonassessable shares of Augment
Common Stock par value $0.01 per share. Augment represents and warrants that
such shares will be and are validly issued in compliance with all state and
federal securities laws and fully authorized by the board of directors. Augment
shall provide Radius with a copy of the board of directors resolutions
pertaining to the issuance of such shares. In addition to the purchase price set
forth, Augment will pay all shipping charges (including insurance) and all
sales, use, and other taxes, if any, imposed as a result of the sale.
3. PROPRIETARY RIGHTS. Augment acknowledges that the Assets are proprietary to
Radius and contain Radius Technology and are subject to Radius' Intellectual
Property Rights. Nothing contained herein is intended to or shall be construed
to give any license under any of Radius' Intellectual Property Rights contained
in or related to the Assets. Augment's use, sale, or other disposal of the
Assets sold hereunder shall be governed by the Restated Technology License
Agreement.
4. DISCLAIMER OR WARRANTIES: INDEMNIFICATION. THE PARTIES ACKNOWLEDGE AND AGREE
THAT THE ASSETS ARE IN ALL RESPECTS PROVIDED ON AN "AS IS" BASIS. RADIUS
DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE ASSETS. WHETHER EXPRESS,
IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NONINFRINGEMENT OF THIRD PARTY
RIGHTS, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF
MERCHANTABILITY.
5. NO CONSEQUENTIAL DAMAGES. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS,
REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN
AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), EVEN IF THE OTHER PARTY OR
ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
6. ABSOLUTE LIMIT OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AUGMENT SALES AGREEMENT, RADIUS' LIABILITY FOR DAMAGES HEREUNDER FOR ANY CAUSE
WHATSOEVER SHALL IN NO EVENT EXCEED THE AMOUNTS RECEIVED BY RADIUS FROM AUGMENT
UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE
OCCURRENCE OF AN EVENT WHICH GIVES RISE TO THE CAUSE OF ACTION.
7. INCORPORATION. The terms and conditions of Section 12 of the Restated
Technology License are incorporated herein as though repeated here in full.
IN WITNESS WHEREOF, the parties have caused this Augment Sales Agreement to
be executed by their duly authorized representatives.
RADIUS INC. AUGMENT SYSTEMS INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxx
----------------------- ---------------------------
Name: Xxxx Xxxxxx Name: Xxxxxx Xxxx
----------------------- ---------------------------
Title: Vice President Title: CEO
----------------------- ---------------------------
EXHIBIT B
MINIMUM SALES
-------------
Calendar Quarter Minimum Royalty
---------------- Bearing Units
-------------
Q1 1996 --
Q2 1996 --
Q3 1996 Beta
Q4 1996 FCS
Q1 1997 0
Q2 1997 1
Q3 1997 6
Q4 1997 15
Q1 1998 28
Q2 1998 40
Q3 1998 54
Q4 1998 71
Q1 1999 79
Q2 1999 83
Q3 1999 91
Q4 1999 96
Q1 2000 100
Q2 2000 110
Q3 2000 122
Q4 2000 136
Q1 2001 157
Q2 2001 165
Q3 2001 174
Q4 2001 182
Q1 2002 191
Q2 2002 and beyond 200/quarter
