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EXHIBIT 10.12
MICROSOFT(R) SOFTWARE FOR DEDICATED SYSTEMS
DISTRIBUTOR AGREEMENT
#_____________ dated November 1ST, 1997
with Bsquare Corporation, a corporation of Washington.
This Distributor Agreement ("Agreement") is made and entered into as of
the date first set forth above ("Effective Date"), by and between MICROSOFT
CORPORATION, a Washington, U.S.A. corporation, ("MS"), and the company
specified above ("COMPANY"). MS anticipates that it will transfer its OEM
licensing operations to its wholly owned subsidiary, Microsoft Licensing, Inc.,
a Nevada, U.S.A. corporation, on or about December 31, 1997. From and after
such transfer, all references to "MS" contained in this Agreement shall refer
to Microsoft Licensing, Inc. Microsoft Corporation will notify COMPANY of the
assignment of the Agreement to Microsoft Licensing, Inc. For shipments of
Product(s) after the date of assignment, COMPANY will report to and make
royalty payments to Microsoft Licensing, Inc. at the address provided by
Microsoft Corporation or Microsoft Licensing, Inc.
1. DEFINITIONS.
(a) "Associated Product Materials" or "APM" shall mean a serialized sticker
and/or other materials designated by MS from time to time which COMPANY shall
acquire from MS or an MS-designated supplier for distribution with each copy of
Product.
(b) "Dedicated Application" shall mean a dedicated purpose software program
which provides the primary functionality of the Dedicated System (as defined
below) and which when used with the Dedicated System offers significant
functionality in addition to the Product software. A Dedicated Application
excludes any software program which addresses more than one function of the
office automation and consumer computing markets. Office automation and
consumer computing functions include, without limitation, email, word
processing, spreadsheets, network browsing, scheduling, and personal finance.
(c) "Dedicated Product Deliverables" shall mean Product software in object
code form, installation and configuration utilities, and any other software or
materials provided by MS and identified as part of the Dedicated Product
Deliverables.
(d) "Dedicated System" shall mean an OEM Customer's computer system or
computing device which utilizes a single microprocessor, is distributed with
Product software in accordance with the Sublicense Agreement (as defined in
Section 1(e)), and is designed for exclusive use with a Dedicated Application
that provides the primary functionality of the system or device. A Dedicated
System excludes any personal, laptop, desktop, handheld, notebook, server
computers, or other such computing devices which address more than one function
of the office automation or consumer computing markets and shall not be useable
as a commercially acceptable substitute for such computers or devices.
(e) "MSCORP" shall mean Microsoft Corporation, a Washington, U.S.A.
corporation.
(e) "OEM Customer" shall mean an original equipment manufacturer of Dedicated
Systems which licenses Product from COMPANY under the terms of an OEM Customer
Sublicense Agreement for Dedicated Systems ("Sublicense Agreement") in the form
attached hereto as Exhibit U.
(f) "Product" shall mean the copyrighted and/or patented MS product(s)
(including, where applicable, Product software in object code form, Dedicated
Product Deliverables, and APM) identified in the attached Exhibit(s) C as being
licensed to COMPANY.
(g) "Product Release" shall mean a release of Product which MS designates as a
change in the digit(s) to the left of the decimal point in the Product version
number [(x).xx] or a change in the annual identifier (e.g., 96 or 1996).
(h) "Product Upgrade" shall mean a Version Release, Update Release or other
release of the Product to be distributed by an OEM Customer pursuant to the
Sublicense Agreement as a replacement for a prior version of the Product
software.
(i) "Recovery Media" shall mean a backup image of the Product as originally
installed on the Dedicated System.
(j) "Sales Target" shall mean the sales targets in US Dollars specified in
Exhibit Q.
(k) "Suppliers" shall mean any and all entities (e.g. MSCORP) which license or
otherwise supply MS with Products or portions thereof for redistribution and
sublicense by MS.
(k) "Update Release" shall mean a release of Product which MS designates as a
change in the digit(s) to the right of the tenths digit in the Product version
number [x.x(x)].
(l) "Version Release" shall mean a release of Product which MS designates as a
change in the tenths digit in the Product version number [x.(x)x].
2. LIMITED LICENSE GRANT.
(a) Subject to the restrictions set forth in this Agreement, and COMPANY's
compliance with all terms and conditions of this Agreement, MS grants to
COMPANY the non-exclusive limited license to:
(i) acquire Dedicated Product Deliverables for Products from MS or an
MS-designated supplier;
(ii) directly distribute to its OEM Customers the Dedicated Product
Deliverables and APM supplied by MS or an MS-designated supplier;
(iii) grant to COMPANY's OEM Customers who have executed a Sublicense
Agreement with COMPANY, the rights to: (A) configure the Product in
accordance with the instructions, if any, contained in the Dedicated
Product Deliverables solely to enable Product to execute on OEM Customer's
Dedicated System; (B) install one (1) copy of the Product software in
nonvolatile, solid-state memory, on the hard disk drive, or in other
nonvolatile form, in accordance with instructions, if any, contained in
the Dedicated Product Deliverables, only as part of a Dedicated System;
(C) reproduce the Product software for distribution as Product Upgrades
and Recovery Media as set forth in the Sublicense Agreement; (D)
distribute the Product Software as part of the Dedicated Systems, Product
Upgrades and Recovery Media as set forth in the Sublicense Agreement.
(b) COMPANY's license shall extend to Update Releases and Version Releases.
COMPANY's license shall not extend to Product Releases.
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(c) (i) Before providing any Product or Dedicated Product Deliverables to an OEM
Customer, COMPANY will execute a Sublicense Agreement with such OEM
Customer.
(ii) COMPANY shall authorize the OEM Customer to reproduce and distribute
only the number of units and language version(s) of Product as are described
in the applicable Attachment 2 of the Sublicense Agreement.
(iii) COMPANY may license additional units of Product(s) to OEM Customers
that are licensed under a current Sublicense Agreement for such Product(s)
and language version(s) by adding dated "Additional Units Attachment(s)" to
the Sublicense Agreement using the Amendment form set forth in Exhibit V
attached hereto ("Sublicense Amendment"). All terms and conditions of the
Sublicense Agreement shall apply to the units of Product(s) licensed in the
Sublicense Amendments.
(iv) COMPANY shall not make any changes to the form of the Sublicense
Agreement or Sublicense Amendment without the prior written consent of MS,
except that the Sublicense Agreement and Sublicense Amendment shall be
adapted as required by the laws of any non-USA jurisdiction in which COMPANY
distributes the Product.
(v) COMPANY shall cause the OEM Customer to comply with the terms and
conditions of the Sublicense Agreement. COMPANY shall take such actions on
behalf of MS, at COMPANY's expense, as MS may reasonably request to enforce
the terms of the Sublicense Agreement.
(vi) Upon MS request, COMPANY shall provide a copy of the Sublicense
Agreement to MS.
(d) For each unit of Product licensed by COMPANY to an OEM Customer, COMPANY
shall supply one (1) APM for such Product to the OEM Customer.
(e) COMPANY and COMPANY's OEM Customers may not reproduce, publish, or sell
Product documentation.
(f) (i) COMPANY agrees to provide commercially reasonable support for the
Product to COMPANY's OEM Customers.
(ii) COMPANY agrees to maintain a separate online service contract with MS
Product Support Services in order that COMPANY can provide timely support to
COMPANY's OEM Customers. COMPANY acknowledges that MS's standard support
fees will apply for the support services.
(iii) COMPANY agrees to provide MS with ninety (90) days prior written
notice of any substantive change in COMPANY's support policy for the
Product.
(g) (i) COMPANY shall distribute Product(s) and the Dedicated Product
Deliverables, and grant the rights set forth in Section 2(a)(iii) only to
COMPANY's OEM Customers.
(ii) COMPANY shall comply with the additional provisions, if any, provided
in Exhibit(s) C with respect to Product.
(h) COMPANY shall make no use of the Dedicated Product Deliverables except as
described in Section 2(a) of this Agreement.
(i) COMPANY shall not reverse engineer, decompile or disassemble any Product
except as permitted by applicable law without the possibility of contractual
waiver. COMPANY acknowledges that information on interoperability of the
Product with other products is readily available.
(j) All distribution and use of the Product is by license only. MS does not
authorize the Product to be "issued to the public", "put into circulation", or
subject to a "first sale" as the copyright laws may use those (or similar)
terms. COMPANY's license to distribute the Product is limited to distribution
of the Product by COMPANY to its OEM Customers pursuant to a Sublicense
Agreement.
(k) This Agreement does not include technical support by MS to COMPANY,
COMPANY's OEM Customers, or end users.
(l) MS reserves all rights not expressly granted including, without limitation,
modification rights, translation rights, rental rights, and rights to source
code. MS expressly reserves its exclusive right under applicable copyright,
patent, and trademark laws to distribute copies of Product by any means. COMPANY
acknowledges that MS (and/or its suppliers, if applicable) shall retain all
copyright, patent, moral, trademark, title and other proprietary and
intellectual property in the Product software, Dedicated Product Deliverables
and components thereof, in whole or in part, in any form.
3. PAYMENT AND REPORTING.
(a) COMPANY agrees to pay MS the royalties in Exhibit(s) C. Royalties exclude
any fees charged by MS or any MS-designated supplier for production of the APM
or Dedicated Product Deliverables. Royalties also exclude any taxes, duties,
fees, excises or tariffs imposed on any of COMPANY's activities in connection
with this Agreement. Such taxes, duties, fees, excises or tariffs, if any,
shall be paid by COMPANY.
(b) COMPANY agrees to pay MS the royalty rates set forth in Exhibit(s) C for
each unit of Product licensed or distributed by COMPANY.
(c) In addition, COMPANY agrees to pay MS the Localization Additional Royalty
specified in Exhibit(s) C for each unit of non-US English version of Product
licensed or distributed by COMPANY.
(d) In the event income taxes are required to be withheld by any non-U.S.A.
government on payments to MS required hereunder, provided that COMPANY promptly
delivers to MS an official receipt for any such taxes withheld or other
documents necessary to enable MS to claim a U.S.A. Foreign Tax Credit, COMPANY
may deduct such taxes from the amount owed MS and shall pay them to the
appropriate tax authority. COMPANY will make certain that any taxes withheld
are minimized to the extent permitted by the applicable law.
(e) COMPANY agrees that it will maintain a tracking system allowing complete
tracking of shipments by (i) Product - including quantity, sticker serial
number, and shipment date; and (ii) OEM Customer - including contact name,
address, and telephone number.
(f) (i) COMPANY agrees to make quarterly royalty reports and payments to MS as
specified in Exhibit N within thirty (30) days after the end of each
calendar quarter, and thirty (30) days after termination or expiration of
this Agreement for the final full or partial quarter. COMPANY's report shall
be signed by a duly authorized officer or director of COMPANY.
(ii) A copy of COMPANY's report shall be sent to MS electronically or via
facsimile in addition to the original
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copy sent in accordance with Exhibit N. COMPANY's royalty reports shall be
in the royalty report format attached as Exhibit R or other format as MS
may provide from time to time and shall specify royalties for each Product
and language version described in Exhibit(s) C. COMPANY shall make such
reports even if no royalties are due for such quarter.
(iii) A ten percent (10%) late charge and a one percent (1%) monthly
finance charge will be assessed on all amounts that are past due,
including receipts for foreign taxes withheld.
(g) COMPANY shall provide MS with a copy of its U.S.A. state resale exempt
certificate, if applicable, with this Agreement when it is returned to MS for
signature by MS.
4. SALES TARGETS.
(a) COMPANY acknowledges that it has been appointed as a Product
distributor for Dedicated Systems based upon its representation that it shall
meet the Sales Targets as set forth in Exhibit Q and that this representation
forms a fundamental basis of this Agreement.
(b) If COMPANY's Sales Targets are not met, this Agreement may be terminated at
the sole discretion of MS as set forth in Section 10(c).
5. DELIVERY.
(a) For each Product licensed hereunder, MS will deliver or cause to be
delivered to COMPANY the Dedicated Product Deliverables if and as available.
(b) Neither MS nor its Suppliers shall have any liability for failure to
deliver Product by any particular date, or if the Product is not yet a released
product, during the term of this Agreement. COMPANY shall not deliver Product
to an OEM Customer until MS delivers final Dedicated Product Deliverables for
such Product to COMPANY.
6. DEFENSE AND INDEMNIFICATION.
(a) MS agrees to defend COMPANY against, and pay the amount of any adverse
final judgment (or settlement to which MS consents) resulting from third party
claim(s) (hereinafter "Indemnified Claims") that: (i) the Product(s) infringe
any copyright enforceable in any Included Jurisdictions (defined in Section
6(d), below); or (ii) the Product name(s) or trademark(s) ("Xxxx(s)") infringe
any trademark rights enforceable in the Included Jurisdictions; provided MS is
notified promptly in writing of the Indemnified Claim and has sole control over
its defense or settlement, and COMPANY provides reasonable assistance in the
defense of the same.
(b) In the event MS receives information concerning an intellectual property
infringement claim (including an Indemnified Claim) related to the Product(s) or
Xxxx(s), MS may, at its expense, and without obligation to do so, either (i)
procure for COMPANY the right to continue to distribute the alleged infringing
Product or Xxxx, or (ii) replace or modify the Product or Xxxx to make it
non-infringing, and in which case COMPANY shall thereupon cease distribution of
the alleged infringing Product or Xxxx.
(c) MS and its Suppliers shall have no liability for any intellectual property
infringement claim (including an Indemnified Claim) based on COMPANY's (i)
manufacture, distribution, or use of any Product or Xxxx after MS' notice that
COMPANY should cease manufacture, distribution, or use of such a Product or
Xxxx due to such a claim; or (ii) combination of a Product with any other
product, program or data; or (iii) adaptation or modification of any Product.
For all claims described in this Section 6(c), COMPANY agrees to indemnify and
defend MS and its Suppliers from and against all damages, costs and expenses,
including reasonable attorneys' fees.
(d) MS and its Suppliers shall have no obligation to COMPANY for any
Indemnified Claims which arise outside the geographical boundaries of the
United States, Canada, Australia, Japan, the European Union and Norway
("Included Jurisdictions").
(e) COMPANY hereby agrees to indemnify, and hold MS and its Suppliers harmless
and, at MS' or its Suppliers' option, defend MS and its Suppliers, from any and
all actions, causes of action, claims, demands, losses, liabilities, expenses
and damages (including reasonable attorney fees) arising out of or in
connection with any activity, action, inaction and/or failure of COMPANY or
COMPANY's OEM Customer(s) to comply with the applicable terms of this
Agreement or the Sublicense Agreement. COMPANY shall promptly reimburse MS and
its Suppliers for any payment made or amount incurred by MS or its Suppliers
for any liability, expense, damage or claim to which the foregoing indemnity
relates.
7. INTELLECTUAL PROPERTY NOTICES.
(a) COMPANY will not remove any copyright, trademark, patent or mask work
notices that appear on the Product as delivered to COMPANY. COMPANY recognizes
that MS or its Suppliers may seek patent registration for the Product.
(b) COMPANY shall market the product only under the Product name(s) and version
number for such Product provided to COMPANY. COMPANY agrees to use the
appropriate trademark, product descriptor and trademark symbol (either "(TM)" or
"(R)"), and clearly indicate MS', its Suppliers' or applicable third parties'
ownership of its trademark(s) whenever the Product name is first mentioned in
any advertisement, brochure or in any other manner in connection with the
Product. COMPANY shall not, at any time, use any name or trademark confusingly
similar to an M, its Suppliers, or licensed third party trademark, trade name
and/or product name. COMPANY shall undertake no action that will interfere with
or diminish MS' or its Suppliers' right, title and/or interest in MS', its
Suppliers, or licensed third party's trademark(s), trade name(s) or Product
name(s). COMPANY shall, upon request, provide MS samples of all COMPANY
marketing literature which uses Product name(s).
(c) COMPANY shall not use or display any MS or Supplier logo (i.e., including
without limitation any stylized representation of the MS name used by MS or
MSCORP) in its materials or packaging, except as provided by separate written
agreement with MS or its Supplier.
8. PROHIBITION AGAINST ASSIGNMENT AND SUBLICENSE.
This Agreement, and any rights or obligations hereunder, shall not be assigned
or sublicensed by COMPANY (by contract, merger, sale or acquisition of assets,
operation of law, or otherwise).
9. TERM OF AGREEMENT.
The term of this Agreement shall run from the Effective Date until one (1) year
from the end of the calendar quarter in which the Effective Date occurs.
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10. DEFAULT AND TERMINATION.
(a) This Agreement may terminate if any of the following events of default
occur: (i) if either party materially fails to perform or comply with any
provision of this Agreement; (ii) COMPANY manufactures or distributes any MS or
MSCORP product which is not properly licensed under this Agreement or another
valid agreement with MS, MSCORP or an MS or MSCORP licensee; (iii) if COMPANY
becomes insolvent, enters bankruptcy, reorganization, composition or other
similar proceedings under applicable laws, whether voluntary or involuntary, or
admits in writing its inability to pay its debts, or makes or attempts to make
an assignment for the benefit of creditors; (iv) upon termination of any other
agreement between COMPANY and MS or MSCORP due to default by COMPANY; or (v) a
material breach of the Sublicense Agreement if such breach has not been cured
within the time period set forth in the Sublicense Agreement.
(b) Termination due to breach of Sections 2(g), 2(h), 2(i), 8, 13, 14(a), or
14(c) shall be effective upon notice to the defaulting party. Termination due to
Section 10(a)(iii) shall be effective upon notice or as soon thereafter as is
permitted by applicable law. In all other cases, termination shall be effective
thirty (30) days after notice of termination to the defaulting party if the
defaults have not been cured within such thirty (30) day period. At the option
of the non-defaulting party, termination due to a breach of any provision of
this Agreement may be effective upon notice to the defaulting party if such
party has received two (2) or more previous notices of default during the term
of this Agreement (whether or not such previous defaults have been cured).
(c) (i) MS may terminate this Agreement upon written notice to COMPANY, if at
the end of any two (2) consecutive calendar quarters following the First
Target Period (as defined in Exhibit Q), COMPANY's cumulative reported
royalties for each of the two (2) calendar quarters are twenty percent (20%)
or more below the Cumulative Target Amount (as specified in Exhibit Q).
(ii) For a period of thirty (30) days after such termination, COMPANY may
continue license and distribution of Product in accordance with all the
terms and conditions of this Agreement in order to fulfill COMPANY'S
contractual obligations which existed as of the date of such termination.
Nothing herein shall relieve COMPANY of its obligations to pay royalties to
MS for Product licensed or distributed by COMPANY.
(d) In the event of COMPANY'S default, MS may terminate this Agreement in its
entirety or as to any individual Product(s). Termination of this Agreement as to
any particular Product(s) will not affect the terms and conditions of this
Agreement as they apply to the other Product(s) licensed under this Agreement.
11. OBLIGATION UPON TERMINATION.
(a) Within thirty (30) days after termination or expiration of this Agreement,
COMPANY shall return to MS all units of Product and all Dedicated Product
Deliverables in COMPANY'S possession. COMPANY may, however, retain one unit of
Dedicated Product Deliverables for each Product for support purposes only. There
shall be no refund or adjustment for amounts paid for Product(s) returned to MS
in accordance with this Section 11(a).
(b) Except as set forth in Section 10(c)(ii), upon termination or expiration of
this Agreement, COMPANY shall cease license and distribution of Product and
Dedicated Product Deliverables and all of COMPANY'S license rights herein shall
cease. Sections 6, 12, 13, 14, 15 and 16 of this Agreement shall survive
termination or expiration of this Agreement.
12. LIMITATION OF LIABILITY AND REMEDY.
(a) Total liability of MS and its Suppliers to COMPANY under this Agreement,
including Section 6, shall be limited to one hundred percent (100%) of the
amount having actually been paid by COMPANY to MS under Section 3. COMPANY
releases MS and its Suppliers from all obligations, liability, claims or demands
in excess of the limitation.
(b) The rights and remedies granted to COMPANY under Section 6 constitute
COMPANY'S sole and exclusive remedy against MS, its Suppliers, and their
officers, agents and employees for any and all claims arising in connection with
the Products or the Dedicated Product Deliverables including but not limited to
claims regarding MS' delivery of Product or Dedicated Product Deliverables, or
indemnification or contribution from MS with respect to any infringement of the
rights of a third party, whether arising under statutory or common law or
otherwise.
(c) MS AND ITS SUPPLIERS HEREBY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND
WHATSOEVER, INCLUDING THOSE FOR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY,
MERCHANTABILITY AND/OR FITNESS OR A PARTICULAR PURPOSE WHICH ARE EXPRESSLY
EXCLUDED. NEITHER MS NOT ITS SUPPLIERS MAKE ANY WARRANTY THAT THE PRODUCT WILL
OPERATE PROPERLY ON ANY CUSTOMER SYSTEM(S). COMPANY AGREES NEITHER MS NOR ITS
SUPPLIERS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, ECONOMIC
OR PUNITIVE DAMAGES EVEN IF MS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
(d) (i) As partial consideration for the rights granted to COMPANY hereunder,
COMPANY agrees not to (A) xxx or (B) bring, prosecute, assist or participate
in any judicial, administrative or other proceedings of any kind against MS,
its Suppliers, their subsidiaries or their licensees (including without
limitation MS OEM customers, OEM Customers, and end users) for infringement
of COMPANY Patents (as defined below) which occurs during the Immunity
Period (as defined below) on account of the manufacture, use, sale, or
distribution of:
1) Any releases of Product(s) licensed to COMPANY hereunder, except as
otherwise provided in (iii), below; or
2) Future releases of Product(s), or replacement or successor products
to the Product, to the extent such future releases or replacement or
successor product(s) use or embody inventions used or embodied in a
version of such Product(s) licensed to COMPANY hereunder.
(ii) "COMPANY Patents" as used in this subsection 12(d) means all patents
throughout the world, other than design patents or the equivalent, owned or
acquired by COMPANY for inventions made prior to termination or expiration
of this Agreement, or for which COMPANY has or acquires rights prior to the
termination or expiration of this Agreement. The "Immunity Period" shall
commence upon the first to issue
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and shall terminate upon the last to expire, of any of the COMPANY Patents
(in any jurisdiction).
(iii) In the event that MS provides COMPANY a new release of a Product
under this Agreement, and COMPANY determines that such new release uses or
embodies inventions not used or embodied in a prior release of the Product
licensed to COMPANY hereunder, COMPANY may elect to not license such new
release by so notifying MS in writing within sixty (60) days after its
receipt and prior to shipment of such new release. COMPANY's election under
this paragraph shall not affect COMPANY's obligations above with respect to
any prior release(s) of the Product licensed hereunder.
(iv) In the event COMPANY assigns COMPANY Patents or rights to enforce
COMPANY Patents, COMPANY shall require as a condition of any such
assignment that the assignee agree to be bound by the provisions of this
Section 12(d).
13. NONDISCLOSURE OBLIGATION.
COMPANY shall keep confidential, and shall require COMPANY's OEM Customers to
keep confidential, the Dedicated Product Deliverables, the terms and conditions
of this Agreement, and other non-public information (including, without
limitation, any and all MS and MSCORP product pricing information, the terms and
conditions of any proposed (or actual) license agreement or other agreement
concerning MS and MSCORP products, license negotiations, as well as any
information or correspondence relating to released or unreleased MS and MSCORP
software or hardware products, the marketing or promotion of any MS or MSCORP
product, and MS' and MSCORP's business policies or practices) and know-how
disclosed to COMPANY by MS or MSCORP or any of their subsidiaries. COMPANY shall
treat the Dedicated Product Deliverables as confidential information and shall
not disclose, disseminate or distribute such material to any third party (except
to OEM Customers in compliance with the terms of this Agreement) without MS'
prior written permission. COMPANY may disclose the terms and conditions of this
Agreement in confidence to its immediate legal and financial consultants as
required in the ordinary course of COMPANY's business.
14. AUDITS AND INSPECTIONS.
(a) During the term of this Agreement and for a period of three (3) years
thereafter, COMPANY shall keep all usual and proper records and books of
account and all usual and proper entries relating to each Product licensed
sufficient to substantiate the number of copies of Product acquired,
distributed, or otherwise disposed of by or for COMPANY. COMPANY shall maintain
such records on COMPANY premises.
(b) In order to verify statements issued by COMPANY and COMPANY's compliance
with the terms of this Agreement, MS may cause (i) an audit to be made of
COMPANY's books and records and/or (ii) an inspection to be made of COMPANY's
facilities and procedures. Any audit and/or inspection shall be conducted
during regular business hours at COMPANY's facilities, with or without notice.
Any audit shall be conducted by an independent certified public accountant
selected by MS (other than on a contingent fee basis).
(c) COMPANY agrees to provide MS' designated audit or inspection team access to
the relevant COMPANY records and facilities.
(d) Prompt adjustment shall be made to compensate for any errors or omissions
disclosed by such audit. Any such audit shall be paid for by MS unless material
discrepancies are disclosed. "Material" shall mean the lesser of Ten Thousand
Dollars (US$10,000.00) or five percent (5%) of the amount that was reported. If
material discrepancies are disclosed, COMPANY agrees to pay MS for the costs
associated with the audit. Further, COMPANY shall pay MS an additional royalty
of twenty-five percent (25%) of the applicable royalty on Exhibit(s) C for each
unit COMPANY failed to report that is in excess of five percent (5%) of the
number of units actually reported by COMPANY. In no event shall audits be made
more frequently than semi-annually unless the immediately preceding audit
disclosed a material discrepancy.
15. CONTROLLING LAW; ATTORNEYS' FEES.
(a) This Agreement and all matters relating to this Agreement shall be
construed and controlled by the laws of the State of Washington, and COMPANY
consents to jurisdiction and venue in the state and federal courts sitting in
the State of Washington. Process may be served on either party in the manner
set forth in Section 16 for the delivery of notices or by such other method as
is authorized by applicable law or court rule.
(b) If either MS or COMPANY employs attorneys to enforce any rights arising out
of or relating to this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys' fees, costs and other expenses.
16. NOTICES.
All notices, authorizations, and requests in connection with this Agreement
shall be deemed given on the day they are (i) deposited in the U.S.A. mails,
postage prepaid, certified or registered, return receipt requested; or (ii)
sent by air express courier, charges prepaid; and addressed as stated in
Exhibit N (or to such other address as the party to receive the notice or
request so designates by written notice to the other).
17. GENERAL.
(a) COMPANY agrees that it will not export or re-export Product to any country,
person, entity or end user subject to U.S. export restrictions. COMPANY
specifically agrees not to export or re-export Product (i) to any country to
which the U.S. has embargoed or restricted the export of goods or services,
which as of December 31, 1996 include, but are not necessarily limited to,
Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of
any such country who COMPANY knows intends to transmit or transport the
products back to such country; (ii) to any end-user who COMPANY knows will
utilize Product in the design, development or production of nuclear, chemical
or biological weapons; or (iii) to any end-user who has been prohibited from
participating in U.S. export transactions by any federal agency of the U.S.
government.
(b) This Agreement does not constitute an offer by MS and it shall not be
effective until signed by both parties. Upon execution by both parties, this
Agreement shall constitute the entire agreement between the parties with
respect to the subject matter hereof and merges all prior and contemporaneous
communications. It shall not be modified except by a written agreement signed
on behalf of COMPANY and MS by their
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respective duly authorized representatives. Any statement appearing as a
restrictive endorsement on a check or other document which purports to modify a
right, obligation or liability of either party shall be of no force and effect.
(c) Neither this Agreement, nor any terms and conditions contained herein,
shall be construed as creating a partnership, joint venture or agency
relationship or as granting a franchise.
(d) If any provision of this Agreement or license of any particular Product
shall be held by a court of competent jurisdiction to be illegal, invalid or
unenforceable, the remaining provisions and license for remaining Products, as
applicable, shall remain in full force and effect.
(e) No waiver of any breach of any provision of this Agreement shall constitute
a waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver shall be effective unless made in writing and
signed by an authorized representative of the waiving party.
(f) COMPANY shall, at its own expense, promptly obtain and arrange for the
maintenance of all non-U.S.A. government approvals, if any, and comply with all
applicable local laws and regulations as may be necessary for COMPANY's
performance under this Agreement.
(g) Product may be imported, distributed, or sold in or to a country or
territory only if allowed by, and in compliance with, all applicable laws and
regulations of such country or territory as well as all terms and conditions of
the License Agreement. COMPANY acknowledges that versions of certain Products
not localized for a specific market may be prohibited or subject to import and
distribution procedures or restrictions under such laws and regulations. By way
of example only, as of July 1, 1997, the U.S.A. English version of Microsoft
Excel 97 cannot be distributed to or for use in India, and games, entertainment
products and products with substantial amounts of video, graphics or similar
content may be prohibited or subject to specific import procedures under laws
of the People's Republic of China. COMPANY agrees to indemnify MS from and
against all damages, costs and expenses (including reasonable attorneys' fees)
incurred by MS in connection with any and all claims, demands or actions
arising from COMPANY's importation or distribution of a Product in or to a
country or territory not in compliance with the laws and regulations of such
country or territory.
(h) Any Product which COMPANY distributes or licenses to or on behalf of the
United States of America, its agencies and/or instrumentalities (the
"Government"), shall be provided with RESTRICTED RIGHTS in accordance with
DFARS 252.227-7013(c)1(ii), or as set forth in the particular department or
agency regulations or rules, or particular contract which provide MS equivalent
or greater protection.
18. EXHIBITS.
The following Exhibits are part of this Agreement:
Exhibit(s) C Products for Dedicated Systems
Exhibit N Addresses
Exhibit Q Sales Targets
Exhibit R Royalty Report
Exhibit U OEM Customer Sublicense Agreement
for Dedicated Systems
Exhibit V License of Additional Product
Software Units
Exhibit Z
(if executed) Additional Country/Region Provisions
6
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
7
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives as of the date set forth above. All signed copies of
this Agreement shall be deemed originals. Each individual signing on behalf of
COMPANY below hereby represents and warrants that he or she has full authority
to sign this Agreement and bind COMPANY to perform all duties and obligations
contemplated by this Agreement. If COMPANY is located in a jurisdiction in
which a corporate seal or "chop" is commonly used as an instrument of agreement
execution, in addition to the individual signature provided below, COMPANY's
seal or "chop" should be entered below COMPANY's signature block.
MICROSOFT CORPORATION BSQUARE CORPORATION
/s/ XXXXXX XXXXXX /s/ XXXXXXX XXXXXX
------------------------------ -------------------------------------
By (Signature) By (Signature)
XXXXXX XXXXXX XXXXXXX XXXXXX
------------------------------ -------------------------------------
Name (Print) Name (Print)
DIRECTOR, OEM CEO
------------------------------ -------------------------------------
Title Title
NOV 20, 1997 10-24-97
------------------------------ -------------------------------------
Date Date
-------------------------------------
COMPANY's seal or "chop"
-------------------------------------
REVIEWED BY BSQUARE LEGAL
7
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
8
EXHIBIT C
PRODUCTS FOR DEDICATED SYSTEMS
Language Licensed Files Applicable Localization
Versions(2) (for Kernel Additional Per copy Additional
Product Name and Version ** Versions Only) Provisions Royalty* Royalty
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 2.0 EN (a),(b),(c),(d) US* US*
Full Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 1.01 EN (a),(b),(c),(g) US* US*
Full Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 2.0 EN (a),(b),(c),(e) US* US*
Limited Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 1.01 EN (a),(b),(c),(h) US* US*
Limited Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 2.0 EN (a),(b),(c),(f) US* US*
Kernel Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 1.01 EN (a),(b),(c),(i) US* US*
Kernel Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
* A Product is not licensed hereunder unless royalty rate(s) are indicated in
the Product table.
**Language Key: DE = German, ES = Spanish, EN = English, FR = French,
IT = Italian, JA = Japanese. Localized versions are licensed on an if and as
available basis.
ADDITIONAL PROVISIONS
(a) COMPANY shall advise its OEM Customers that the Dedicated Product
Deliverables for this Product consist of (i) the "untethered" Kernal Version of
the Product, and (ii) a license to distribute certain components of the software
in accordance with the Sublicense Agreement provided that such software was
developed by COMPANY utilizing the Windows CE Embedded Toolkit for Visual C++ in
accordance with the instructions therein.
(b) In order to support its OEM Customers, COMPANY agrees to enter into and
maintain, at COMPANY's expense, a valid Priority Support Agreement with MS at
all times during the period COMPANY is licensed for this Product.
(c) COMPANY shall not sign a Sublicense Agreement for the Product without MS'
prior written approval. To assist MS in its review of COMPANY's proposed OEM
Customer, COMPANY shall provide MS with:
(1) the name, address, and business profile in the English language
(including years in business, ownership profile, tradenames used, and
nature of principle business activities) of the proposed OEM Customer;
and
(2) model name, description and specific industry application of proposed
OEM Customer's Dedicated Systems.
(d) COMPANY's right to sublicense this Product shall apply only to those files
which are components of the Product's Full Version configuration as indicated
in the Dedicated product Deliverables documentation.
8
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
------------
* Confidential Treatment Requested
9
EXHIBIT C
ADDITIONAL PROVISIONS
(Continued)
(e) COMPANY's right to sublicense this Product shall apply to those files which
are components of the Product's Limited Version configuration as indicated in
the Dedicated Product Deliverables documentation.
(f) COMPANY's right to sublicense this Product shall apply only to those files
which are components of the Product's Kernel Version configuration as indicated
in the Dedicated Product Deliverables documentation.
(g) COMPANY's right to sublicense this Product shall apply only to those files
which are components of Demos #4 and #5 as indicated in the Dedicated Product
Deliverables documentation.
(h) COMPANY's right to sublicense this Product shall apply only to those files
which are components of Demos #3 as indicated in the Dedicated Product
Deliverables documentation.
(g) COMPANY's right to sublicense this Product shall apply only to those files
which are components of Demos #1 and #2 as indicated in the Dedicated Product
Deliverables documentation.
9
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
10
EXHIBIT N
ADDRESS
COMPANY
-------
NOTICES:
Bsquare Corporation
0000 000xx Xxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Mr. Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
XXXX TO:
Bsquare Corporation
0000 000xx Xxxxx XX Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Mr. Xxxxxxx Xxxxxx
SHIP TO:
Bsquare Corporation
0000 000xx Xxxxx XX Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xx. Xxx Xxxxxxxx
COMPANY SUPPORT
TELEPHONE NO.: 000-000-0000
MS:
---
NOTICES:
MICROSOFT CORPORATION
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
U.S.A.
Attn: Vice President, OEM Group
WITH COPY TO:
MICROSOFT CORPORATION
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
U.S.A.
Attn: Law & Corporate Affairs
Fax: x0-000-000-0000
OTHER CORRESPONDENCE:
OEM Sales
MICROSOFT CORPORATION
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
X.X.X.
REPORTS AND PAYMENTS:
---------------------
REPORTS TO:
MICROSOFT CORPORATION
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
U.S.A.
Attention: OEM Finance
Fax: x0-000-000-0000
IF COMPANY IS A U.S.A., OR CANADA BASED COMPANY,
PAYMENT SHALL BE MADE BY WIRE TRANSFER TO:
MICROSOFT CORPORATION
c/o NationsBank of Texas, N.A.
0000 Xxx Xxxxxx
Xxxxxx, XX
U.S.A.
ABA #00000000-2
SWIFT Code: NBKUS44DAL
Account #3750771783
Regarding:
Microsoft OEM #844500 Collections
IF COMPANY IS BASED OUTSIDE THE U.S.A. AND CANADA,
PAYMENTS SHALL BE MADE BY WIRE TRANSFER TO:
MICROSOFT CORPORATION
c/o Citybank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X.X.
ABA 000000000
SWIFT Code: XXXXXX00
Account #00000000
Regarding:
Microsoft International OEM Collections
or to such other address or account as MS may specify from time to time.
COMPANY agrees to ensure that the regarding line stated above, the MS
license agreement number for the Agreement, and the MS invoice number (if
any) are specified on each wire transfer payment made pursuant to the
Agreement."
10
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
11
EXHIBIT Q
SALES TARGETS
Sales Targets for Windows CE Products
Period Sales Target Amount Cumulative Sales Target Amount
------ ------------------- ------------------------------
(US$) (US$)
The first calendar quarter following the calendar quarter in
which the Effective Date occurs ("First Target Period") $ * $ *
The calendar quarter following the First Target Period $ * $ *
The 2nd calendar quarter following the First Target Period $ * $ *
The 3rd calendar quarter following the First Target Period $ * $ *
Total Sales Target: $ * $ *
11
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
------------
* Confidential treatment requested
12
EXHIBIT R
ROYALTY REPORT
COMPANY NAME: _______________________________
LICENSE #: _______________________________
REPORTING PERIOD: _______________________________
REPORT DUE: _______________________________
Prod. 1 Prod. 2 Prod. 3 Prod. 4 Prod. 5 Prod. 6 Prod. 7
-----------------------------------------------------------------------------------------------------------
CUSTOMER SYSTEM
MODEL NAME OR PRODUCT UNITS/
MODEL NUMBER ROYALTY TYPE
-----------------------------------------------------------------------------------------------------------
1 "Per System" units
---------------------------------------------------------------------------------------
"Per Copy" units
-----------------------------------------------------------------------------------------------------------
2 "Per System" units
---------------------------------------------------------------------------------------
"Per Copy" units
-----------------------------------------------------------------------------------------------------------
3 "Per System" units
---------------------------------------------------------------------------------------
"Per Copy" units
-----------------------------------------------------------------------------------------------------------
4 "Per System" units
---------------------------------------------------------------------------------------
"Per Copy" units
-----------------------------------------------------------------------------------------------------------
5 "Per System" units
---------------------------------------------------------------------------------------
"Per Copy" units
-----------------------------------------------------------------------------------------------------------
6 "Per System" units
---------------------------------------------------------------------------------------
"Per Copy" units
-----------------------------------------------------------------------------------------------------------
7 "Per System" units
---------------------------------------------------------------------------------------
"Per Copy" units
-----------------------------------------------------------------------------------------------------------
8 "Per System" units
---------------------------------------------------------------------------------------
"Per Copy" units
-----------------------------------------------------------------------------------------------------------
9 "Per System" units
---------------------------------------------------------------------------------------
"Per Copy" units
------------------------------------------------------------------------------------------------------------
10 "Per System" units
---------------------------------------------------------------------------------------
"Per Copy" units
-----------------------------------------------------------------------------------------------------------
SUMMARY
-----------------------------------------------------------------------------------------------------------
TOTAL UNITS "Per System" units 0 0 0 0 0 0 0
---------------------------------------------------------------------------------------
"Per Copy" units 0 0 0 0 0 0 0
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
ENTER THE NUMBER OF NON-ENGLISH VERSION
UNITS SHIPPED FOR EACH MICROSOFT PRODUCT
-----------------------------------------------------------------------------------------------------------
12
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
13
EXHIBIT R
(Continued)
Dollar Recap
===============================================================================================
Product 1
-----------------------------------------------------------------------------------------------
"Per System" Activity "Per Copy" Activity
Amount Amount
Units Royalty Quantity Due Units Royalty Quantity Due
----- ------- -------- ------ ----- ------- -------- ------
1 to 0 $0.00 0 $0.00 1 to 0 $0.00 0 $0.00
$0.00 $0.00
+ $0.00 + $0.00
-------- --------
0 0
-----------------------------------------------------------------------------------------------
Non-English Version Activity
Amount
Royalty Quantity Due
------- -------- ------
$0.00 0 $0.00 PRODUCT TOTAL $0.00
---------------------------------------
===============================================================================================
Product 2
-----------------------------------------------------------------------------------------------
"Per System" Activity "Per Copy" Activity
Amount Amount
Units Royalty Quantity Due Units Royalty Quantity Due
----- ------- -------- ------ ----- ------- -------- ------
1 to 0 $0.00 0 $0.00 1 to 0 $0.00 0 $0.00
$0.00 $0.00
+ $0.00 + $0.00
-------- --------
0 0
-----------------------------------------------------------------------------------------------
Non-English Version Activity
Amount
Royalty Quantity Due
------- -------- ------
$0.00 0 $0.00 PRODUCT TOTAL $0.00
---------------------------------------
===============================================================================================
PLEASE SEND REPORT TO:
Microsoft Corporation ----------------------------
OEM Accounting Services TOTAL REPORTED $0.00
FAX:(0) 000-000-0000 ----------------------------
===============================================================================================
================================================================================
The undersigned hereby certifies that he/she is duly authorized by COMPANY to
complete this report, that the title listed below is his/her true and correct
title, and that this report is complete and correct.
REPORT COMPLETED BY:
------------------------ ---------------------------
Signature Date
------------------------ ---------------------------
Print name and title Telephone Number
================================================================================
13
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
14
EXHIBIT U
OEM CUSTOMER SUBLICENSE AGREEMENT
FOR DEDICATED SYSTEMS
This agreement ("Agreement") is made and entered into by and between you
("Customer"), and [enter name of COMPANY] ("Company"), and shall be effective as
of the date on which it is signed by COMPANY ("Effective Date"). Microsoft
Corporation ("Microsoft") shall be a third party beneficiary of this Agreement
and shall be entitled to enforce the terms of this Agreement as provided herein
and such other rights and obligations herein as necessary to protect Microsoft's
interests in the Microsoft software program(s) and other licensed product(s)
identified in Attachment 2 to this Agreement (the "SOFTWARE"). Microsoft
anticipates that it will transfer its OEM licensing operations to its wholly
owned subsidiary, Microsoft Licensing, Inc., a Nevada, U.S.A. corporation, on or
about December 31, 1997. From and after such transfer, all references to
"Microsoft" contained in this Agreement shall refer to "Microsoft Licensing,
Inc. Customer hereby acknowledges and agrees that, at Microsoft's request,
COMPANY shall provide a copy of this Agreement to Microsoft.
1. DEFINITIONS.
(a) "Dedicated Application" shall mean a dedicated purpose software program
which provides the primary functionality of the Dedicated System (as defined
below) and which, when used with the Dedicated System, offers significant
functionality in addition to the SOFTWARE. A Dedicated Application excludes any
software program which addresses more than one function of the office automation
and consumer computing markets. Office automation and consumer computing
functions include, without limitation, email, word processing, spreadsheets,
network browsing, scheduling, and personal finance.
(b) "Dedicated System" is a Customer's computer system or computing device which
utilizes a single microprocessor, is distributed with the SOFTWARE in accordance
with this Agreement, and is designed for exclusive use with a Dedicated
Application that provides the primary functionality of the system or device. A
Dedicated System excludes any general or multi-purpose personal, laptop,
desktop, handheld, notebook, server computers, or other such computing devices
which address more than one function of the office automation or consumer
computing markets and shall not be useable as a commercially acceptable
substitute for such computers or devices.
(c) "Dedicated Product Deliverables" shall mean SOFTWARE in object code form,
installation utilities, adaptation code in source code form, if provided by
COMPANY, and other information or instructions regarding the SOFTWARE that
COMPANY or Microsoft may provide.
(d) "XXXX" shall mean an end user license agreement for the SOFTWARE.
(e) "Recovery Media" shall mean a backup image of the SOFTWARE as originally
installed on the Dedicated System.
(f) "SOFTWARE Upgrade" shall mean a copy of the SOFTWARE to be distributed by
Customer directly to end users to replace an earlier version of the SOFTWARE
licensed to Customer under this Agreement.
2. LIMITED LICENSE GRANT.
Subject to the restrictions set forth in this Agreement, and Customer's
compliance with all terms and conditions of this Agreement, COMPANY grants to
Customer the following limited license rights:
(a) (i) to install one (1) copy of the SOFTWARE in nonvolatile, solid-state
memory, on the hard disk drive, or in other nonvolatile form, in accordance with
instructions, if any, contained in the Dedicated Product Deliverables only as
part of a Dedicated System; and (ii) to distribute the SOFTWARE only as part of
such Dedicated Systems solely under Customer's brand names and trademarks.
(b) to configure the SOFTWARE in accordance with the instructions, if any,
contained in the Dedicated Product Deliverables solely to enable SOFTWARE to
execute on a Dedicated System.
(c) to reproduce and distribute with each Dedicated System distributed in
accordance with 2(a), not more than one (1) unit of Recovery Media provided
that:
(i) The images of the SOFTWARE on the Recovery Media shall be identical to
the object code that was originally installed on the Dedicated System.
Recovery Media may include non-Microsoft products that Customer distributes
installed on the Dedicated System;
(ii) Recovery Media shall be maintained by the end user as an archival copy
and may only be licensed for use: (A) to restore the same version and
language release of the SOFTWARE as originally installed on a Dedicated
System, or (B) to reinstall the same version and language release of the
SOFTWARE as originally installed on the Dedicated System after the
installation of an upgrade to the Dedicated Application on a Dedicated
System;
(iii) Recovery or reinstallation of the SOFTWARE shall be performed by an
authorized service representative of Customer or by the licensed end user;
(iv) Recovery Media may include a single copy of each of the following files
in order that the Recovery Media shall be "bootable": xxxxxxx.xxx, xx.xxx,
xxxxx.xxx, and for Dedicated Systems with Windows 95, drvspace.bin;
(v) A single unit of Recovery Media may be used by the licensed end user or
the Customer's authorized service representative to restore or reinstall the
SOFTWARE on such end user's additional units of the same Dedicated System
which contain the same version and language release of the SOFTWARE
14
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
15
properly licensed to the end user pursuant to this Agreement;
(vi) Recovery Media shall be clearly labeled "Recovery Media" -for Backup
or Archival purposes only with >Name and Model of the Dedicated System
(d) to reproduce and distribute SOFTWARE Upgrades to an end user provided
that
(i) such end user is an existing, authorized end user of a Dedicated
System;
(i) Customer shall acquire a serialized sticker from COMPANY, and Customer
shall pay the applicable SOFTWARE royalty fee as set forth in Attachment 2 for
each copy of SOFTWARE Upgrade installed by its end users or service
representatives pursuant to this Section 2(d);
(iii) SOFTWARE Upgrades shall be distributed directly by Customer, separate
from a Dedicated System, to an end-user for use solely as a replacement copy for
the SOFTWARE originally installed on the Dedicated System pursuant to this
Agreement;
(iv) the SOFTWARE Upgrade is configured to ensure that it executes solely
on the applicable Dedicated System and will not execute on general or
multi-purpose personal, laptop, desktop, handheld, notebook, or server computers
which address the office automation market;
(v) the SOFTWARE Upgrade is distributed as an integrated part of the
Dedicated Application;
(vi) Installation of the SOFTWARE Upgrade shall be performed by an
authorized service representative of Customer or by the licensed end user;
(vii) A single unit of SOFTWARE Upgrade may be used by the licensed end
user or the Customer's authorized service representative to install the SOFTWARE
Upgrade on such end user's additional units of the same Dedicated System which
contain the same version and language release of the SOFTWARE;
(viii) Customer shall establish a reasonable procedure to assure the return
or destruction of any replaced SOFTWARE (for example, a SOFTWARE Upgrade that
erases or permanently disables the replaced SOFTWARE would satisfy this
requirement);
(ix) the SOFTWARE Upgrade shall be clearly labeled "For Upgrade purposes
only - not for use on a new Dedicated System. For Use Only with ".
(e) Customer shall cause to appear in a conspicuous place in the Dedicated
System documentation, the XXXX attached to this Agreement as Attachment 1, or
such other XXXX as COMPANY may provide from time to time, with each Dedicated
System and each copy of SOFTWARE Upgrade: Customer shall adapt the XXXX as
necessary to comply with the laws of any jurisdiction in which the SOFTWARE is
distributed.
3. LICENSE RESTRICTIONS.
(a) The total number of units of the SOFTWARE (including any SOFTWARE Upgrades)
distributed by Customer shall not exceed the number of "Units of SOFTWARE
licensed" for such SOFTWARE as set forth in Attachment 2 hereto.
(b) Except as provided in Section 2(c)-(d), SOFTWARE may not be distributed in
whole or in part other than installed on the Dedicated System.
(c) Customer may not distribute any SOFTWARE documentation.
(d) Customer shall not use, copy, modify, or transfer the SOFTWARE or any copy
in whole or in part, except as expressly provided in this Agreement. Customer's
reproduction of the SOFTWARE in accordance with Section 2 shall be performed
only on Customer premises by Customer's regular employees except as otherwise
specifically approved in writing by Microsoft.
(e) Customer shall not reverse engineer, decompile or disassemble any SOFTWARE
except as permitted by applicable law without the possibility of contractual
waiver. Customer acknowledges that information on interoperability of the
SOFTWARE with other products is readily available.
(f) All distribution and use of the SOFTWARE is by license only. Neither
COMPANY nor Microsoft authorize the SOFTWARE to be "issued to the public",
"put into circulation", or subject to a "first sale" as the copyright laws may
use those (or similar) terms. Customer's license to distribute the SOFTWARE is
limited to distribution of the SOFTWARE by Customer to end users for use
pursuant to a XXXX.
(g) Customer may distribute only one copy of SOFTWARE in addition to one copy
of preinstalled SOFTWARE in one language version and release version (i.e.
MS-DOS 5.0 or MS-DOS 6.22; MS-DOS or MS-DOS ROM version) for use on each such
Dedicated System.
(h) Microsoft reserves all rights not expressly granted including, without
limitation, modification rights, translation rights, rental rights, and rights
to source code. Microsoft expressly reserves its exclusive right under
applicable copyright, patent, and trademark laws to distribute copies of
SOFTWARE by any means. Except as set forth in Section 2(c)-(d) above, without
limitation, neither COMPANY nor Microsoft authorizes Customer to distribute the
SOFTWARE separately from Dedicated Systems; any such unauthorized distribution
by Customer shall constitute a violation of this Agreement and Microsoft's
distribution right under applicable law. Customer acknowledges that Microsoft
(and/or its suppliers, if applicable) shall retain all copyright, patent,
moral, trademark, title and other proprietary and intellectual property in the
SOFTWARE, Dedicated Product Deliverables and components thereof, in whole or in
part in any form.
(i) Customer will not remove, modify, or obscure any copyright, trademark,
patent or other intellectual property notices included on the SOFTWARE or the
SOFTWARE Upgrade.
(j) Customer shall not advertise, publish or otherwise xxxx.
15
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
16
a separate price for the SOFTWARE.
(k) Customer agrees to provide commercially reasonable end user support for the
SOFTWARE which, in any event, shall be under terms and conditions at least as
favorable to the end user as the terms under which Customer provides support
for Dedicated System(s) to end users generally. Customer agrees to provide
COMPANY and Microsoft with ninety (90) days prior written notice of any
substantive change in Customer's support policy for the SOFTWARE.
4. LICENSE STICKER.
(a) Customer shall place a serialized sticker supplied by COMPANY for each unit
of SOFTWARE: (i) on the hard drive containing the SOFTWARE, or (ii) if the
SOFTWARE is installed in ROM, on the ROM or in a conspicuous place on the
component board to which the ROM is attached. If placement as described in both
(i) and (ii) are impractical, the label may be affixed to the inside or outside
of the rear panel of the Dedicated System casing.
(b) (i) Customer shall also place a serialized sticker supplied by COMPANY on
the media for each unit of SOFTWARE Upgrade distributed by Customer.
(ii) If one unit of the COMPANY Upgrade is used to install the SOFTWARE
Upgrade on additional units of the Dedicated System as set forth in Section
2(d)(vii), prior to distribution of the SOFTWARE Upgrade, Customer shall
(A) determine the number of units of SOFTWARE Upgrade to be installed, (B)
provide end user or Customer's authorized service representative with a
serialized sticker supplied by COMPANY for each such unit, and (C) ensure
that a serialized sticker is placed on each Dedicated System on which
SOFTWARE Upgrade is installed as described in Section 4(a).
5. DELIVERY.
For each SOFTWARE product licensed hereunder, COMPANY (or Microsoft, on behalf
of COMPANY) shall deliver to Customer one (1) unit of Dedicated Product
Deliverables. Customer acknowledges and agrees that neither COMPANY nor
Microsoft shall have any liability for failure to deliver Dedicated Product
Deliverables by any particular date, or if the SOFTWARE is not yet a released
product, during the term of this Agreement.
6. LIMITED WARRANTY AND CUSTOMER REMEDIES.
(a) COMPANY warrants that the SOFTWARE will perform substantially in accordance
with the accompanying written materials for a period of ninety (90) days from
the date of receipt.
(b) COMPANY's, Microsoft's, and their suppliers' entire liability and
Customer's exclusive remedy for a breach of the warranty set forth above shall
be, at COMPANY's option, either (i) return of the price paid or (ii) repair or
replacement of the SOFTWARE that does not meet the above Limited Warranty and
which is returned to COMPANY. This Limited Warranty is void if failure of the
SOFTWARE has resulted from accident, abuse, or misapplication. Any replacement
SOFTWARE will be warranted for the remainder of the original warranty period or
thirty (30) days, whichever is longer.
(c) COMPANY, MICROSOFT, AND THEIR SUPPLIERS DISCLAIM ALL OTHER WARRANTIES,
EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO THE SOFTWARE AND ANY ACCOMPANYING WRITTEN MATERIALS.
(d) The rights and remedies granted to Customer under this Section 6 constitute
Customer's sole and exclusive remedy against the COMPANY and Microsoft, their
officers, agents and employees for any and all claims arising in connection
with the SOFTWARE or the Dedicated Product Deliverables including but not
limited to claims regarding COMPANY's or Microsoft's delivery of SOFTWARE or
Dedicated Product Deliverables, or indemnification or contribution from COMPANY
or Microsoft with respect to any infringement of the rights of a third party,
whether arising under statutory or common law or otherwise.
7. TERM AND TERMINATION.
(a) The term of this license shall run from the Effective Date until the
earlier of: (i) one (1) year after Effective Date, or (ii) the date on which
Customer has distributed the number of units of SOFTWARE licensed under this
Agreement as set forth in Attachment 2 for each SOFTWARE.
(b) Termination due to breach of Sections 3(d), 3(e), 3(f), 10, or 11 shall be
effective upon notice to Customer. In all other cases, termination shall be
effective fifteen (15) days after notice of termination to the defaulting party
if the defaults have not been cured within such fifteen (15) day period. At the
option of the non-defaulting party, termination due to a breach of any
provision of this Agreement may be effective upon notice to the defaulting
party if such party has received two (2) or more previous notices of default
during the term of this Agreement (whether or not such previous defaults have
been cured).
(c) Upon termination or expiration of the Agreement, Customer will immediately
cease all use and distribution of the SOFTWARE, the SOFTWARE product name, and
all associated trademark(s). Within ten (10) days of the termination or
expiration of the Agreement, Customer shall return to COMPANY all Dedicated
Product Deliverables and serialized stickers for the SOFTWARE in Customer's
possession or under Customer's control. There shall be no refund or adjustment
for amounts paid for the Dedicated Product Deliverables or stickers returned to
COMPANY in accordance with this Section 7(c).
8. DISCLAIMER OF LIABILITY.
IN NO EVENT SHALL COMPANY, MICROSOFT, OR THEIR SUPPLIERS BE LIABLE FOR ANY
DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, CONSEQUENTIAL, INCIDENTAL, INDIRECT, ECONOMIC OR
16
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
17
PUNITIVE DAMAGES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER
PECUNIARY LOSS) ARISING OUT OF THE MANUFACTURE, SALE, USE OF OR INABILITY TO
MANUFACTURE, SELL OR USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
9. TECHNICAL SUPPORT.
This Agreement does not include technical support from Microsoft. Technical
support for the SOFTWARE will be provided by COMPANY.
10. AUDITS AND INSPECTIONS.
(a) During the term of this Agreement and for three (3) years thereafter,
Customer agrees to keep all usual and proper entries relating to each unit of
SOFTWARE licensed sufficient to substantiate the number of units of SOFTWARE
and the number of Dedicated Systems distributed by Customer.
(b) In order to verify statements issued by Customer and Agreement, COMPANY
and/or Microsoft may cause (i) an audit to be made of Customer's books and
records and/or (ii) an inspection to be made of Customer's facilities and
procedures. Any audit and/or inspection shall be conducted during regular
business hours at Customer's facilities, with or without notice. Any audit shall
be conducted by an independent certified public accountant selected by
Microsoft or COMPANY (other than on a contingent fee basis).
(c) Customer agrees to provide Microsoft's and/or COMPANY's designated audit or
inspection team(s) access to the relevant Customer records and facilities.
Prompt adjustment shall be made to compensate for any errors or omissions
disclosed by such audit. If material discrepancies are disclosed in such audit,
Customer agrees to pay Microsoft or COMPANY, as applicable, for the costs
associated with the audit.
11. NONDISCLOSURE OBLIGATION.
Customer shall keep confidential the Dedicated Product Deliverables, any
SOFTWARE source code provided by COMPANY or Microsoft on behalf of COMPANY, the
terms and conditions of this Agreement, and other non-public information and
know-how disclosed to Customer by COMPANY or Microsoft. Customer may disclose
the terms and conditions of this Agreement in confidence to its immediate legal
and financial consultants as required in the ordinary course of Customer's
business. Customer's obligation under this Section shall survive termination or
expiration of this Agreement and shall extend until such time as the
information protected hereby is in the public domain.
12. GENERAL.
(a) This Agreement shall be construed and controlled by the laws of the State
of Washington, and Customer further consents to jurisdiction by the state and
federal courts sitting in the State of Washington. Process may be served on
either party by air express courier, (e.g. DHL, Airborne) charges prepaid,
return receipt requested. If COMPANY, Microsoft or Customer employs attorneys
to enforce any rights arising out of or relating to this Agreement, the
prevailing party shall be entitled to recover reasonable attorney's fees.
(b) Customer agrees that it will not export or re-export SOFTWARE to any
country, person, entity or end user subject to U.S. export restrictions.
Customer specifically agrees not to export or re-export SOFTWARE (i) to any
country to which the U.S. has embargoed or restricted the export of goods or
services, which as of December 31, 1996 include, but are not necessarily
limited to, Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria, or to any
national of any such country who Customer knows intends to transmit or
transport the products back to such country; (ii) to any end-user who Customer
knows will utilize SOFTWARE in the design, development or production of
nuclear, chemical or biological weapons; or (iii) to any end-user who has been
prohibited from participating in U.S. export transactions by any federal agency
of the U.S. government.
(c) If any provision or portion of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions or portions shall remain in full force and effect.
(d) No waiver of any breach of any provision of this Agreement shall constitute
a waiver of any prior, concurrent, or subsequent breach of the same or any
other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
(e) Any assignment of this Agreement without prior written consent of the
non-assigning party shall be void.
(f) SOFTWARE may be imported, distributed, or sold in or to a country or
territory only if allowed by, and in compliance with, all applicable laws and
regulations of such country or territory as well as all terms and conditions of
this Agreement. Customer acknowledges that versions of certain SOFTWARE not
localized for a specific market may be prohibited or subject to import and
distribution procedures or restrictions under such laws and regulations. By way
of example only, as of July 1, 1997, the U.S.A. English version of Microsoft
Excel 97 cannot be distributed to or for use in India, and games, entertainment
products and products with substantial amounts of video, graphics or similar
content may be prohibited or subject to specific import procedures under laws
of the People's Republic of China. Customer agrees to indemnify COMPANY and
Microsoft from and against all damages, costs and expenses (including
reasonable attorneys' fees) incurred by COMPANY or Microsoft in connection with
any and all claims, demands or actions arising from Customer's importation or
distribution of SOFTWARE in or to a country or territory not in compliance with
the laws and regulations of such country or territory.
(f) Any SOFTWARE which Customer distributes or licenses to or on behalf of the
United States of America, its agencies and/or instrumentalities (the
"Government"), shall be provided with RESTRICTED RIGHTS in accordance with
DFARS 252.227-7013(c)1(ii), or as set forth in the
17
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
18
particular department or agency regulations or rules, or particular
contract which provide Microsoft equivalent or greater protection.
Should Customer have any questions concerning this Agreement, please
write:
_________________________________________________________________________
Name of COMPANY
_________________________________________________________________________
Address
_________________________________________________________________________
_________________________________________________________________________
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives as of the date set forth above. All signed copies of
this Agreement shall be deemed originals. Each individual signing on behalf of
Customer below hereby represents and warrants that he or she has full authority
to sign this Agreement and bind Customer to perform all duties and obligations
contemplated by this Agreement. If Customer is located in a jurisdiction in
which a corporate seal or "chop" is commonly used as an instrument of agreement
execution, in addition to the individual signature provided below, Customer's
seal or "chop" should be entered below Customer's signature block.
COMPANY
_______________________________________________________________________________
By (Signature)
_______________________________________________________________________________
Name (Print)
_______________________________________________________________________________
Title
_______________________________________________________________________________
Date
CUSTOMER
_______________________________________________________________________________
By (Signature)
_______________________________________________________________________________
Name (Print)
_______________________________________________________________________________
Title
_______________________________________________________________________________
Date
18
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
19
ATTACHMENT 1
TO OEM CUSTOMER SUBLICENSE AGREEMENT FOR DEDICATED SYSTEMS
END-USER LICENSE AGREEMENT FOR MICROSOFT SOFTWARE
IMPORTANT--READ CAREFULLY: THIS END-USER LICENSE AGREEMENT ("XXXX") IS A LEGAL
AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND THE
MANUFACTURER ("MANUFACTURER") OF THE SPECIAL PURPOSE COMPUTING DEVICE ("SYSTEM")
YOU ACQUIRED WHICH INCLUDES CERTAIN MICROSOFT SOFTWARE PRODUCT(S) INSTALLED ON
THE SYSTEM ("SOFTWARE PRODUCT" OR "SOFTWARE"). THE SOFTWARE INCLUDES COMPUTER
SOFTWARE, THE ASSOCIATED MEDIA, ANY PRINTED MATERIALS, AND ANY "ONLINE" OR
ELECTRONIC DOCUMENTATION. BY INSTALLING, COPYING OR OTHERWISE USING THE
SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS XXXX. IF YOU DO NOT AGREE
TO THE TERMS OF THIS XXXX, MANUFACTURER AND MICROSOFT CORPORATION ("MICROSOFT")
ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU. IN SUCH EVENT, YOU MAY NOT USE OR
COPY THE SOFTWARE, AND YOU SHOULD PROMPTLY CONTACT MANUFACTURER FOR INSTRUCTIONS
ON RETURN OF THE UNUSED PRODUCT(S) FOR A REFUND.
------------------------------------------------------------------------------
SOFTWARE LICENSE
The SOFTWARE is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The SOFTWARE
is licensed, not sold.
1. GRANT OF LICENSE. This XXXX grants you the following rights:
- SOFTWARE. You may use the SOFTWARE as installed on the SYSTEM.
- APPLICATION SHARING. The SOFTWARE may contain technology that enables
applications to be shared between two or more SYSTEMS, even if an
application is installed on only one of the SYSTEMS. You should
consult your application license agreement or contact the application
licensor to determine whether sharing the application is permitted by
its licensor.
- STORAGE/NETWORK USE. If the SOFTWARE PRODUCT is installed on the
SYSTEM over an internal network from a server, you must acquire and
dedicate a license for the SOFTWARE PRODUCT for each SYSTEM on which
the SOFTWARE PRODUCT is used or to which it is distributed. A license
for the SOFTWARE PRODUCT may not be shared or used concurrently on
different SYSTEMS.
- BACK-UP COPY. If MANUFACTURER has not included a copy of the SOFTWARE
on separate media with the SYSTEM, you may make a single copy of the
SOFTWARE for use solely for archival purposes with the SYSTEM.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
- LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You
may not reverse engineer, decompile, or disassemble the SOFTWARE,
except and only to the extent that such activity is expressly
permitted by applicable law notwithstanding this limitation.
- SINGLE SYSTEM. The SOFTWARE is licensed with the SYSTEM as a single
integrated product. The SOFTWARE may only be used with the SYSTEM.
- RENTAL. You may not rent or lease the SOFTWARE.
- SOFTWARE TRANSFER. You may permanently transfer all of your rights
under this XXXX only as part of a sale or transfer of the SYSTEM,
provided you retain no copies, you transfer all of the SOFTWARE
(including all component parts, the media, any upgrades or backup
copies, and this XXXX, and if applicable, the Certificate(s) of
Authenticity), AND the recipient agrees to the terms of this XXXX. If
the SOFTWARE is an upgrade, any transfer must include all prior
versions of the SOFTWARE.
- TERMINATION. Without prejudice to any other rights, Manufacturer or
Microsoft may terminate this XXXX if you fail to comply with the terms
and conditions of this XXXX. In such event, you must destroy all
copies of the SOFTWARE and all of its component parts.
- SINGLE XXXX. The package for the SOFTWARE may contain multiple
versions of this XXXX, such as multiple translations and/or multiple
media versions (e.g., in the user documentation and in the software).
In this case, you are only licensed to use one (1) copy of the
SOFTWARE PRODUCT.
- EXPORT RESTRICTIONS. You agree that you will not export or re-export
the SOFTWARE to any country, person, entity or end user subject to
U.S. export restrictions. You specifically agree not to export or
re-export the SOFTWARE (i) to any country to which the U.S. has
embargoed or restricted the export of goods or services, which
currently include, but are not necessarily limited to Cuba, Iran,
Iraq, Libya, North Korea, Sudan and Syria, or to any national of any
such country, wherever located, who intends to transmit or transport
the products back to such country; (ii) to an end user you know or
have reason to know will utilize the SOFTWARE in the design,
development or production or nuclear, chemical or biological weapons;
or (iii) to any end-user who has been prohibited from participating in
U.S. export transactions by any federal agency of the U.S. government.
3. UPGRADES AND RECOVERY MEDIA.
- If the SOFTWARE is provided by Manufacturer on media separate from the
SYSTEM and is labeled "For Upgrade Purposes Only" (Upgrade SOFTWARE),
you may install one copy of the Upgrade SOFTWARE onto the SYSTEM as a
replacement copy for the SOFTWARE originally installed on the SYSTEM
and use it in accordance with Section 1 of this XXXX. You may also
install additional copies of the Upgrade SOFTWARE as replacement
copies onto additional SYSTEMS which are the same brand and model as
the
19
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
20
SYSTEM and contain a duly licensed copy of the same version and language
release of the SOFTWARE ("ADDITIONAL SYSTEMS"), provided that (1)
Manufacturer has supplied a corresponding serialized sticker for each
additional copy of the Upgrade SOFTWARE, and (2) you affix a serialized
sticker per Manufacturer's instructions for each unit of Upgrade SOFTWARE
you install.
o If the SOFTWARE is provided by Manufacturer on separate media and labeled
as "Recovery Media", you may not make a copy of the SOFTWARE as described
in Section 1 for archival purposes. Instead, you may use the Recovery Media
solely to restore or reinstall the same version and language release of the
SOFTWARE as originally installed on the SYSTEM and thereafter use the
SOFTWARE as restored or reinstalled in accordance with Section 1 of this
XXXX. A single unit of Recovery Media may be used by you to restore or
reinstall the SOFTWARE on ADDITIONAL SYSTEMS.
4. COPYRIGHT. All title and copyrights in and to the SOFTWARE (including but not
limited to any images, photographs, animations, video, audio, music, text and
"applets," incorporated into the SOFTWARE), the accompanying printed
materials, and any copies of the SOFTWARE, are owned by Microsoft or its
suppliers. You may not copy the printed materials accompanying the SOFTWARE.
All rights not specifically granted under this XXXX are reserved by
Microsoft.
5. PRODUCT SUPPORT. PRODUCT SUPPORT FOR THE SOFTWARE IS NOT PROVIDED BY
MICROSOFT OR ITS SUBSIDIARIES. FOR PRODUCT SUPPORT, PLEASE REFER TO
MANUFACTURER'S SUPPORT NUMBER PROVIDED IN THE DOCUMENTATION FOR THE SYSTEM.
SHOULD YOU HAVE ANY QUESTIONS CONCERNING THIS XXXX, OR IF YOU DESIRE TO
CONTACT MANUFACTURER FOR ANY OTHER REASON, PLEASE REFER TO THE ADDRESS
PROVIDED IN THE DOCUMENTATION FOR THE SYSTEM.
6. LIMITED WARRANTY.
o LIMITED WARRANTY. Manufacturer warrants that the SOFTWARE will perform
substantially in accordance with the accompanying written materials for a
period of ninety (90) days from the date of receipt. Any implied warranties
on the SOFTWARE are limited to ninety (90) days. Some states/jurisdictions
do not allow limitations on duration of an implied warranty, so the above
limitation may not apply to you.
o CUSTOMER REMEDIES. Manufacturer's and its suppliers' entire liability and
your exclusive remedy shall be, at Manufacturer's option, either (a) return
of the price paid, or (b) repair or replacement of the SOFTWARE that does
not meet the above Limited Warranty and which is returned to Manufacturer
with a copy of your receipt. This Limited Warranty is void if failure of
the SOFTWARE has resulted from accident, abuse, or misapplication. Any
replacement SOFTWARE will be warranted for the remainder of the original
warranty period or thirty (30) days, whichever is longer.
o NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED WARRANTY
SECTION ABOVE, THE SOFTWARE IS PROVIDED TO THE END USER "AS IS" WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND/OR FITNESS
FOR A PARTICULAR PURPOSE. THE ENTIRE RISK OF THE QUALITY AND PERFORMANCE OF
THE SOFTWARE IS WITH YOU.
o NO LIABILITY FOR CONSEQUENTIAL DAMAGES. MANUFACTURER OR MANUFACTURER'S
SUPPLIERS SHALL NOT BE HELD TO ANY LIABILITY FOR ANY DAMAGES SUFFERED OR
INCURRED BY THE END USER (INCLUDING, BUT NOT LIMITED TO, GENERAL, SPECIAL,
CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE),
ARISING FROM OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE
SOFTWARE.
20
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
21
7. NOTE ON JAVA SUPPORT. THE SOFTWARE PRODUCT MAY CONTAIN SUPPORT FOR
PROGRAMS WRITTEN IN JAVA. JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT
DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL
EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH
AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES,
OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD
DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL
DAMAGE.
_______________________________________________________________________________
U.S. GOVERNMENT RESTRICTED RIGHTS
The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. Use,
duplication, or disclosure by the Government is subject to restrictions as set
forth in subparagraph (c)(I)(ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the
Commercial Computer Software -- Restricted Rights at 48 CFR 52.227-19, as
applicable. Manufacturer is Microsoft Corporation/One Microsoft Xxx/Xxxxxxx, XX
00000-0000. If you acquired this XXXX in the United States, this XXXX is
governed by the laws of the State of Washington.
If you acquired this XXXX in Canada, this XXXX is governed by the laws of the
Province of Ontario, Canada. Each of the parties hereto irrevocably attorns to
the jurisdiction of the courts of the Province of Ontario and further agrees to
commence any litigation which may arise hereunder in the courts located in the
Judicial District of York, Province of Ontario.
If this XXXX was acquired outside the United States, then local law may apply.
Should you have any questions concerning this XXXX, please contact the
Manufacturer.
21
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
22
ATTACHMENT 2
TO OEM CUSTOMERS SUBLICENSE AGREEMENT FOR DEDICATED SYSTEMS
SOFTWARE PRODUCTS FOR DEDICATED SYSTEMS
UNITS OF LANGUAGE LICENSED FILES APPLICABLE LOCALIZATION
SOFTWARE VERSION(S) (FOR KERNEL ADDITIONAL PER COPY ADDITIONAL
PRODUCT NAME AND VERSION LICENSED ** VERSIONS ONLY) PROVISIONS ROYALTY* ROYALTY
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
1. WINDOWS(R) CE OPERATING
SYSTEM VERSION 2.0 ---- EN (a),(b),(c),(d) US$_____ US$_____
FULL VERSION (E),(f),(g)
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
2. WINDOWS(R) CE OPERATING
SYSTEM VERSION 1.01 ---- EN (a),(b),(c),(d) US$_____ US$_____
FULL VERSION (e),(f),(J)
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
3. WINDOWS(R) CE OPERATING
SYSTEM VERSION 2.0 ---- EN (a),(b),(c),(d) US$_____ US$_____
LIMITED VERSION (e),(f),(h)
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
4. WINDOWS(R) CE OPERATING
SYSTEM VERSION 1.01 ---- EN (a),(b),(c),(d) US$_____ US$_____
LIMITED VERSION (e),(f),(k)
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
5. WINDOWS(R) CE OPERATING
SYSTEM VERSION 2.0 ---- EN (a),(b),(c),(d) US$_____ US$_____
KERNEL VERSION (e),(f),(i)
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
6. WINDOWS(R) CE OPERATING
SYSTEM VERSION 1.01 ---- EN (a),(b),(c),(d) US$_____ US$_____
KERNEL VERSION (e),(f),(l)
--------------------------------- -------------- -------------- ------------------- ------------------ ------------ ---------------
* IF ROYALTY RATE AND UNITS OF SOFTWARE ARE NOT SPECIFIED FOR A PARTICULAR
PRODUCT, THEN SUCH PRODUCT IS NOT LICENSED UNDER THIS AGREEMENT.
**LANGUAGE KEY: DE = GERMAN, ES = SPANISH, EN = ENGLISH, FR = FRENCH,
IT = ITALIAN, JA = JAPANESE. LOCALIZED VERSIONS ARE LICENSED ON AN IF AND AS
AVAILABLE BASIS.
22
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
23
ADDITIONAL PROVISIONS
(a) The Dedicated Product Deliverables for this SOFTWARE consist of (i) the
"untethered" Kernel Version of the SOFTWARE, and (ii) a license to distribute
certain components of the SOFTWARE with Customer's hardware reference platform
and/or software applications developed by COMPANY utilizing the Windows CE
Embedded Toolkit for Visual C++ in accordance with the instructions therein,
provided that such SOFTWARE and Customer components are distributed in
accordance with this Agreement and are distributed solely as part of Customer's
Dedicated System.
(b) Notwithstanding anything to the contrary contained in the Agreement,
Customer may not reproduce the SOFTWARE or Dedicated Product Deliverables in any
manner except as necessary to install the SOFTWARE on Customer's Dedicated
Systems in accordance with Section 2(a); and (ii) configure the SOFTWARE to
execute on Customer's Dedicated Systems, in accordance with the instructions
contained in the Dedicated Product Deliverables.
(c) Dedicated Systems shall be distributed only through such channels as may
be customary for similar devices for the referenced industry and the specific
industry application.
(d) If an end user of the Dedicated System shall have access to the command
line (for example, the C:\prompt) of the SOFTWARE, then Customer shall cause to
appear on the display screen as part of the sign-on message for each SOFTWARE
the copyright notices specified in the Dedicated Product Deliverables.
(e) If Customer installs the SOFTWARE in ROM and the SOFTWARE is not the only
software contained in ROM, Customer will ensure that Microsoft's copyright
notice for SOFTWARE shall at all times be included in the first four percent
(4%) and the last four percent (4%) of the software contained in ROM. The
copyright notice(s) for SOFTWARE shall be as specified in the Dedicated Product
Deliverables. In any event, Customer will not remove any copyright, trademark
or patent notices that appear on the SOFTWARE as delivered to Customer.
(f) Notwithstanding anything to the contrary contained within the Agreement,
Customer may distribute SOFTWARE only with Dedicated Systems which are marketed
an distributed exclusively under Customer's brand names, trade names and
trademarks. The SOFTWARE may not be distributed with Dedicated Systems which
are marketed or distributed under any name which includes any third party brand
names, trade names or trademarks.
(g) Customer's license rights with respect to the SOFTWARE shall apply only to
those files which are components of the SOFTWARE Full Version configuration as
indicated in the Dedicated Product Deliverables documentation.
(h) Customer's license rights with respect to the SOFTWARE shall apply only to
those files which are components of the SOFTWARE Limited Version configuration
as indicated in the Dedicated Product Deliverables documentation.
(i) Customer's license rights with respect to the SOFTWARE shall apply only to
those files which are components of the SOFTWARE Kernel Version configuration
as indicated in the Dedicated Product Deliverables documentation.
(j) Customer's license rights with respect to the SOFTWARE shall apply only to
those files which are components of Demos #4 and #5 as indicated in the
Dedicated Product Deliverables documentation.
(k) Customer's license rights with respect to the SOFTWARE shall apply only to
those files which are components of Demo #3 as indicated in the Dedicated
Product Deliverables documentation.
(l) Customer's license rights with respect to the SOFTWARE shall apply only to
those files which are components of Demos #1 and #2 as indicated in the
Dedicated Product Deliverables documentation.
DEDICATED SYSTEMS
Customer's Dedicated Systems for SOFTWARE described in this Attachment 2 shall
be limited to Customer's current and future Dedicated Systems described below.
Each listed Dedicated System must have a unique model line name, model name, or
model number which Customer uses both internally (in Customer's books and
records) and externally (on the Dedicated System case and packaging). New
models may be added by agreement of the parties.
At Customer's option, for purposes of administrative convenience, Customer may
designate models by model line or series. e.g., "Jaguar model line", "Jaguar
Pro series", "Jaguar Pro 750 model line", "Jaguar Pro 950 series", etc.)."
Dedicated Systems defined by model line or series shall include all present
models which include the designated model line or series name, (e.g., "Jaguar
Pro model line" includes Jaguar Pro, Jaguar Pro 950, Jaguar Pro S, etc.;
"Jaguar series" includes Jaguar, Jaguar Pro, Jaguar Pro 950, Jaguar S400, etc.;
"Jaguar Pro 950 series" includes Jaguar Pro 950, Jaguar Pro 955, etc.).
PRODUCT NUMBER KEY: 1 = Windows CE 2.0 Full Version; 2 = Windows CE 1.01 Full
Version; 3 = Windows CE 2.0 Limited Version; 4 = Windows CE 1.01 Limited
Version; 5 = Windows CE 2.0 Kernel Version; 6 = Windows CE 1.01 Kernel Version.
ROYALTY BASIS KEY: C = per copy; if Product box is blank, such Product is not
licensed for distribution with the listed Dedicated System.
23
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
24
----------------------------------------------------------------------------------------------------------------------------------
SPECIFIC
INDUSTRY
MODEL NAME OR MODEL NUMBER APPLICATION 1 2 3 4 5
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
----------------------------------------------------------------------------------------------------------------------------------
SPECIFIC
INDUSTRY
MODEL NAME OR MODEL NUMBER APPLICATION 6 7 8 9 10
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
------------------------------ -------------- ---------------- ---------------- ---------------- ---------------- ----------------
24
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
25
EXHIBIT V
LICENSE OF ADDITIONAL PRODUCT SOFTWARE UNITS
AMENDMENT NUMBER ___
Amendment Date: _____________________
to OEM CUSTOMER SUBLICENSE AGREEMENT FOR DEDICATED SYSTEMS
between _________________________, a Corporation of _________________________
and _________________________, a Corporation of _________________________
Agreement Effective Date: _______________________
WHEREAS, Customer has licensed a certain number of units of Product
Software (the "SOFTWARE") from COMPANY under the terms of the above referenced
license agreement (the "Agreement");
WHEREAS, Customer now desires to license additional units of SOFTWARE from
COMPANY as described in the Additional Units Attachment dated ____________,
199__, which is attached to this Amendment;
NOW, THEREFORE, Customer and COMPANY hereby agree:
1. Effective as of the date indicated on the Additional Units Attachment, such
Additional Units Attachment is hereby added to the Agreement and sets forth the
number of additional units of the SOFTWARE and the language version(s) licensed
to Customer under the terms and conditions of the Agreement.
2. Customer may license additional SOFTWARE on the Additional Units Attachment
only for the SOFTWARE and the language version(s) that are currently licensed by
Customer under the Agreement between Customer and COMPANY. In order to license
SOFTWARE or language version(s) not currently licensed under the Agreement with
COMPANY, Customer shall execute a new OEM Customer Sublicense Agreement for
Dedicated Systems which includes such SOFTWARE and/or language version(s).
3. All capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Agreement. The terms of this Amendment shall supersede
any inconsistent terms contained in the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment by their duly
authorized representatives as of the date set forth above. All signed copies of
this Amendment shall be deemed originals. Each individual signing on behalf of
Customer below hereby represents and warrants that he or she has full authority
to sign this Agreement and bind Customer to perform all duties and obligations
contemplated by this Amendment. If Customer is located in a jurisdiction in
which a corporate seal or "chop" is commonly used as an instrument of agreement
execution, in addition to the individual signature provided below, Customer's
seal or "chop" should be entered below Customer's signature block. This
Amendment is executed only in the English language.
___________________________________ ___________________________________
(Name of COMPANY) (Name of Customer)
___________________________________ ___________________________________
By (Signature) By (Signature)
___________________________________ ___________________________________
Name (Print) Name (Print)
___________________________________ ___________________________________
Title Title
___________________________________ ___________________________________
Date Date
Customer's seal or "chop"
25
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
26
ADDITIONAL UNITS ATTACHMENT
Dated: ___________________
PRODUCT NAME AND VERSION ADDITIONAL UNITS OF SOFTWARE LICENSED LANGUAGE VERSION
-------------------------------------------------------------------------------------------------------
WINDOWS(R) CE OPERATING SYSTEM VERSION 2.0 ___________
FULL VERSION
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
WINDOWS(R) CE OPERATING SYSTEM VERSION 1.01 ___________
FULL VERSION
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
WINDOWS(R) CE OPERATING SYSTEM VERSION 2.0 ___________
LIMITED VERSION
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
WINDOWS(R) CE OPERATING SYSTEM VERSION 1.01 ___________
LIMITED VERSION
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
WINDOWS(R) CE OPERATING SYSTEM VERSION 2.0 ___________
KERNEL VERSION
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
WINDOWS(R) CE OPERATING SYSTEM VERSION 1.01 ___________
KERNEL VERSION
-------------------------------------------------------------------------------------------------------
26
CONFIDENTIAL
Microsoft Software for Dedicated Systems Distributor Agreement dated November
1st, 1997, between Microsoft Corporation and Bsquare Corporation.
27
AMENDMENT NUMBER 1
Amendment Date: November 1st, 1997
to MICROSOFT(R) SOFTWARE DEDICATED SYSTEMS DISTRIBUTION AGREEMENT
between MICROSOFT CORPORATION, a Washington U.S.A. Corporation, as assigned
to MICROSOFT LICENSING, INC., a Nevada, U.S.A. Corporation
and Bsquare Corporation, a corporation of Washington
Agreement Effective Date: November 1st, 1997
MICROSOFT LICENSE #7772-7310 (SAP: 5000020519)
Effective as of the Amendment Date indicated above, the below signed parties
agree that the indicated portions of the above referenced license agreement
between COMPANY and Microsoft Corporation, (hereinafter the "License
Agreement") are hereby amended by this instrument (hereinafter the
"Amendment"), as follows:
1. Exhibit C of the License Agreement is hereby deleted and replaced with the
attached Exhibit C.
2. Exhibit N of the License Agreement is hereby deleted and replaced with the
attached Exhibit N.
3. COMPANY acknowledges that Microsoft Corporation transferred its OEM
licensing operations to its wholly owned subsidiary, Microsoft Licensing,
Inc., a Nevada, U.S.A. corporation ("MS Licensing, Inc."), on or about
December 31, 1997. From and after such transfer, all references to "MS"
contained in the Agreement (as amended) shall refer to MS Licensing, Inc.,
provided, however that the disclaimers and limitations in Section 4(c), 5,
7, 10(a), 12(a), 12(b), 12(c) 13, and Exhibit S, if applicable, shall inure
to the benefit of each of MS Licensing, Inc. and Microsoft Corporation.
Notwithstanding anything to the contrary in the foregoing, all references
to "MS" contained in Section 12(d) shall refer to MS Licensing, Inc. and to
Microsoft Corporation. For shipments of Product(s) after the date of
assignment, COMPANY will report to and make royalty payments to Microsoft
Licensing, Inc., at the address provided by Microsoft Corporation or
Microsoft Licensing, Inc. COMPANY agrees that all obligations of Microsoft
Corporation under the License Agreement will be the obligations of MS
Licensing, Inc. as of the date of such transfer.
All capitalized terms used but not defined herein shall have the meanings
ascribed to them in the License Agreement. The terms of this Amendment shall
supersede any inconsistent terms contained in the License Agreement.
NOTICE:
FOR PRODUCT(S) SPECIFIED IN EXHIBIT C AS LICENSED UNDER THE "PER SYSTEM"
ROYALTY CALCULATION PROVISIONS, PLEASE NOTE THE FOLLOWING:
THIS IS AN MS PER SYSTEM LICENSE. AS A CUSTOMER, YOU MAY CREATE A "NEW SYSTEM"
AT ANY TIME THAT DOES NOT REQUIRE THE PAYMENT OF A ROYALTY TO MS UNLESS THE
CUSTOMER AND MS AGREE TO ADD IT TO THE LICENSE AGREEMENT.
ANY NEW SYSTEM CREATED MAY BE IDENTICAL IN EVERY RESPECT TO A SYSTEM AS TO
WHICH THE CUSTOMER PAYS A PER SYSTEM ROYALTY TO MS PROVIDED THAT THE NEW SYSTEM
HAS A UNIQUE MODEL NUMBER OR MODEL NAME FOR INTERNAL AND EXTERNAL
IDENTIFICATION PURPOSES WHICH DISTINGUISHES IT FROM ANY SYSTEM THE CUSTOMER
SELLS THAT IS INCLUDED IN A PER SYSTEM LICENSE. THE REQUIREMENT OF EXTERNAL
IDENTIFICATION MAY BE SATISFIED BY PLACEMENT OF THE UNIQUE MODEL NAME OR MODEL
NUMBER ON THE MACHINE AND ITS CONTAINER (IF ANY), WITHOUT MORE.
IF THE CUSTOMER DOES NOT INTEND TO INCLUDE A MICROSOFT OPERATING SYSTEM PRODUCT
WITH A NEW SYSTEM, THE CUSTOMER DOES NOT NEED TO NOTIFY MS AT ANY TIME OF THE
CREATION, USE OR SALE OF ANY SUCH NEW SYSTEM, NOR DOES IT NEED TO TAKE ANY
PARTICULAR STEPS TO MARKET OR ADVERTISE THE NEW SYSTEM.
UNDER MS'S LICENSE AGREEMENT, THERE IS NO CHARGE OR PENALTY IF A CUSTOMER
CHOOSES AT ANY TIME TO CREATE A NEW SYSTEM INCORPORATING A NON-MICROSOFT
OPERATING SYSTEM. IF THE CUSTOMER INTENDS TO INCLUDE A MICROSOFT OPERATING
SYSTEM PRODUCT WITH THE NEW SYSTEM, THE CUSTOMER MUST SO NOTIFY MS, AFTER WHICH
THE PARTIES MAY ENTER INTO ARM'S LENGTH NEGOTIATION WITH RESPECT TO A LICENSE
TO APPLY TO THE NEW SYSTEM.
28
IN WITNESS WHEREOF, the parties have executed this Amendment in duplicate as of
the date first written above. All signed copies of this Amendment shall be
deemed originals. This Amendment is executed only in the English language.
MICROSOFT LICENSING, INC. BSQUARE CORPORATION
/s/ XXXXXXX XXXXXX
------------------------- -------------------------
By (Signature) By (Signature)
Xxxxxxx Xxxxxx
------------------------- -------------------------
Name (Printed) Name (Printed)
President/CEO
------------------------- -------------------------
Title Title
1-28-98
------------------------- -------------------------
Date Date
29
AMENDMENT NUMBER 1
Amendment Date: November 1st, 1997
to MICROSOFT(R) SOFTWARE DEDICATED SYSTEMS DISTRIBUTION AGREEMENT
between MICROSOFT CORPORATION, a Washington U.S.A. Corporation, as assigned to
MICROSOFT LICENSING, INC., a Nevada, U.S.A. Corporation
and Bsquare Corporation, a corporation of Washington
Agreement Effective Date: November 1st, 1997
MICROSOFT LICENSE #7772-7310 (SAP: 5000020519)
Effective as of the Amendment Date indicated above, the below signed parties
agree that the indicated portions of the above referenced license agreement
between COMPANY and Microsoft Corporation, (hereinafter the "License Agreement")
are hereby amended by this instrument (hereinafter the "Amendment"), as follows:
1. Exhibit C of the License Agreement is hereby deleted and replaced with
the attached Exhibit C.
2. Microsoft Corporation anticipates that it will transfer its OEM
licensing operations to its wholly owned subsidiary, Microsoft
Licensing, Inc., a Nevada, U.S.A. corporation, on or about December 31,
1997. Microsoft Corporation will notify COMPANY of the assignment of the
License Agreement to Microsoft Licensing, Inc. For shipments of
Product(s) after the date of assignment, COMPANY will report to and make
royalty payments to Microsoft Licensing Inc., at the address provided by
Microsoft Corporation or Microsoft Licensing, Inc. From and after such
transfer, all references to "MS" contained in this Agreement shall refer
to Microsoft Licensing, Inc.
All capitalized terms used but not defined herein shall have the meanings
ascribed to them in the License Agreement. The terms of this Amendment shall
supersede any inconsistent terms contained in the License Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment in duplicate as of
the date first written above. All signed copies of this Amendment shall be
deemed originals. This Amendment is executed only in the English language.
MICROSOFT CORPORATION BSQUARE CORPORATION
/s/ XXXXXXX X. XXXXXX
---------------------------------- ----------------------------------
By (Signature) By (Signature)
XXXXXXX X. XXXXXX
---------------------------------- ----------------------------------
Name (Printed) Name (Printed)
PRESIDENT & CEO
---------------------------------- ----------------------------------
Title Title
23 FEB. 1998
---------------------------------- ----------------------------------
Date Date
30
EXHIBIT C
PRODUCTS FOR DEDICATED SYSTEMS
Language Licensed Files Applicable Localization
Versions(2) (for Kernel Additional Per copy Additional
Product Name and Version ** Versions Only) Provisions Royalty* Royalty
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 2.0 EN (a),(b),(c),(d) US$* US$*
Full Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 1.01 EN (a),(b),(c),(g) US$* US$*
Full Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 2.0 EN (a),(b),(c),(e) US$* US$*
Limited Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 1.01 EN (a),(b),(c),(h) US$* US$*
Limited Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 2.0 EN (a),(b),(c),(f) US$* US$*
Kernel Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 1.01 EN (a),(b),(c),(i) US$* US$*
Kernel Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
* A Product is not licensed hereunder unless royalty rate(s) are indicated in
the Product table.
**Language Key: DE = German, ES = Spanish, EN = English, FR = French,
IT = Italian, JA = Japanese. Localized versions are licensed on an if and as
available basis.
ADDITIONAL PROVISIONS
(a) COMPANY shall advise its OEM Customers that the Dedicated Product
Deliverables for this Product consist of (i) the "untethered" Kernel Version of
the Product, and (ii) a license to distribute certain components of the software
in accordance with the Sublicense Agreement provided that such software was
developed by COMPANY utilizing the Windows CE Embedded Toolkit for Visual C++ in
accordance with the instructions therein.
(b) In order to support its OEM Customers, COMPANY agrees to enter into and
maintain, at COMPANY's expense, a valid Priority Support Agreement with MS at
all times during the period COMPANY is licensed for this Product.
(c) COMPANY shall not sign a Sublicense Agreement for the Product without MS'
prior written approval. To assist MS in its review of COMPANY's proposed OEM
Customer, COMPANY shall provide MS with:
(1) the name, address, and business profile in the English language
(including years in business, ownership profile, tradenames used, and
nature of principle business activities) of the proposed OEM Customer;
and
(2) model name, description and specific industry application of proposed
OEM Customer's Dedicated Systems.
(d) COMPANY's right to sublicense this Product shall apply only to those files
which are components of the Product's Full Version configuration as indicated
in the Dedicated Product Deliverables documentation.
------------
* Confidential treatment requested
31
EXHIBIT C
ADDITIONAL PROVISIONS
(Continued)
(e) COMPANY's right to sublicense this Product shall apply only to those files
which are components of the Product's Limited Version configuration as indicated
in the Dedicated Product Deliverables documentation.
(f) COMPANY's right to sublicense this Product shall apply only to those files
which are components of the Product's Kernel Version configuration as indicated
in the Dedicated Product Deliverables documentation.
(g) COMPANY's right to sublicense this Product shall apply only to those files
which are components of Demos #4 and #5 as indicated in the Dedicated Product
Deliverables documentation.
(h) COMPANY's right to sublicense this Product shall apply only to those files
which are components of Demos #3 as indicated in the Dedicated Product
Deliverables documentation.
(i) COMPANY's right to sublicense this Product shall apply only to those files
which are components of Demos #1 and #2 as indicated in the Dedicated Product
Deliverables documentation.
32
EXHIBIT N
ADDRESSES
COMPANY:
-------
NOTICES:
Bsquare Corporation
0000 000xx Xxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Mr. Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
XXXX TO:
Bsquare Corporation
0000 000xx Xxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Mr. Xxxxxxx Xxxxxx
SHIP TO:
Bsquare Corporation
0000 000xx Xxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xx. Xxx Xxxxxxxx
COMPANY SUPPORT
telephone no.: 000-000-0000
MS:
---
NOTICES:
MICROSOFT LICENSING, INC.
Non-US Postal Service Delivery Address:
0000 Xxxx Xxxx
Xxxx, XX 00000-0000
X.X.X.
Attn: General Manager
Fax: 0-000-000-0000
WITH COPY TO:
MICROSOFT CORPORATION
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
U.S.A.
Attn: Law & Corporate Affairs
Fax: x0-000-000-0000
OTHER CORRESPONDENCE:
MICROSOFT LICENSING, INC.
0000 Xxxx Xxxx
Xxxx, XX 00000-0000
X.X.X.
Attn.: General Manager
Reports and Payments:
---------------------
WITH COPIES TO:
OEM Sales
MICROSOFT CORPORATION
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
U.S.A.
33
REPORTS AND PAYMENTS:
REPORTS TO:
ROYALTY REPORTS SHALL BE MADE TO:
MICROSOFT LICENSING, INC.
0000 Xxxx Xxxx
Xxxx, XX 00000-0000
X.X.X.
Attention: OEM Finance
Fax: + 0-000-000-0000
or to such other address as MS may specify from time to time.
PAYMENTS SHALL BE MADE BY WIRE TRANSFER TO:
MICROSOFT LICENSING INC. #100430
c/o NationsBank of Texas, N.A.
0000 Xxx Xxxxxx
Xxxxxx, XX
U.S.A.
ABA # 00000000-2
SWIFT Code: NBKUS44DAL
Account#3750891058
Regarding:
REF+LB+100430
or to such other address or account as MS may specify from time to time. COMPANY
agrees to ensure that the regarding line stated above, the MS license agreement
number for the agreement, and the MS invoice number (if any) are specified on
each wire transfer payment made pursuant to the Agreement."
CONFIDENTIAL
34
EXHIBIT C
PRODUCTS FOR DEDICATED SYSTEMS
Language Licensed Files Applicable Localization
Version(s) (for Kernel Additional Per copy Additional
Product Name and Version ** Versions Only) Provisions Royalty* Royalty
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating System
version 2.0 EN (a),(b),(c),(d) US$* US$*
Full Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 1.01 EN (a),(b),(c),(g) US$* US$*
Full Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 2.0 EN (a),(b),(c),(e) US$* US$*
Limited Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 1.01 EN (a),(b),(c),(h) US$* US$*
Limited Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 2.0 EN (a),(b),(c),(f) US$* US$*
Kernel Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System version 1.01 EN (a),(b),(c),(i) US$* US$*
Kernel Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
* A Product is not licensed hereunder unless royalty rate(s) are indicated in
the Product table.
**Language Key: DE = German, ES = Spanish, EN = English, FR = French,
IT = Italian, JA = Japanese. Localized versions are licensed on an if and as
available basis.
ADDITIONAL PROVISIONS
(a) COMPANY shall advise its OEM Customers that the Dedicated Product
Deliverables for this Product consist of (i) the "untethered" Kernel Version of
the Product, and (ii) a license to distribute certain components of the software
in accordance with the Sublicense Agreement provided that such software was
developed by COMPANY utilizing the Windows CE Embedded Toolkit for Visual C++ in
accordance with the instructions therein.
(b) In order to support its OEM Customers, COMPANY agrees to enter into and
maintain, at COMPANY's expense, a valid Priority Support Agreement with MS at
all times during the period COMPANY is licensed for this Product.
(c) COMPANY shall not sign a Sublicense Agreement for the Product without MS'
prior written approval. To assist MS in its review of COMPANY's proposed OEM
Customer, COMPANY shall provide MS with:
(1) the name, address, and business profile in the English language
(including years in business, ownership profile, tradenames used, and
nature of principle business activities) of the proposed OEM Customer;
and
(2) model name, description and specific industry application of proposed
OEM Customer's Dedicated Systems.
(d) COMPANY's right to sublicense this Product shall apply only to those files
which are components of the Product's Full Version configuration as indicated
in the Dedicated Product Deliverables documentation.
------------
* Confidential treatment requested
35
EXHIBIT C
ADDITIONAL PROVISIONS
(Continued)
(e) COMPANY's right to sublicense this Product shall apply only to those files
which are components of the Product's Limited Version configuration as indicated
in the Dedicated Product Deliverables documentation.
(f) COMPANY's right to sublicense this Product shall apply only to those files
which are components of the Product's Kernel Version configuration as indicated
in the Dedicated Product Deliverables documentation.
(g) COMPANY's right to sublicense this Product shall apply only to those files
which are components of Demos #4 and #5 as indicated in the Dedicated Product
Deliverables documentation.
(h) COMPANY's right to sublicense this Product shall apply only to those files
which are components of Demos #3 as indicated in the Dedicated Product
Deliverables documentation.
(i) COMPANY's right to sublicense this Product shall apply only to those files
which are components of Demos #1 and #2 as indicated in the Dedicated Product
Deliverables documentation.
36
[SIGNED ORIGINAL]
AMENDMENT NUMBER 2
Amendment Date: November 1st, 1998
To MICROSOFT SOFTWARE FOR DEDICATED SYSTEMS DISTRIBUTOR AGREEMENT
Between MICROSOFT LICENSING, INC., a Nevada, U.S.A. Corporation
And BSQUARE CORPORATION, A Corporation of Washington
Agreement Effective Date: November 1st, 1997
MS LICENSE#: 7772-7310 (SAP: 5000020519)
Microsoft Corporation transferred its OEM licensing operations to its wholly
owned subsidiary, Microsoft Licensing, Inc., a Nevada, U.S.A. Corporation, on
December 31, 1997. Accordingly, the above referenced license agreement was
assigned by separate instrument to Microsoft Licensing, Inc. on that date.
Effective as of the Amendment Date indicated above, the below signed parties
agree that the indicated portions of the above referenced license agreement
(hereinafter the "License Agreement") are hereby amended by this instrument
(hereinafter the "Amendment"), as follows
1. The attached Exhibit C2, "WINDOWS CE PRODUCTS FOR DEDICATED SYSTEMS" is
hereby added to the License Agreement.
2. The attached Exhibit C3, "WINDOWS CE PRODUCTS FOR WINDOWS-BASED TERMINAL
DEVICES" is hereby added to the License Agreement.
3. The attached Exhibit U, Attachment 2A, "TO OEM CUSTOMER SUBLICENSE
AGREEMENT FOR DEDICATED SYSTEMS, WINDOWS CE PRODUCTS FOR WINDOWS-BASED
TERMINAL DEVICES" is hereby added to the License Agreement.
4. The attached Exhibit V3, "LICENSE OF ADDITIONAL PRODUCT SOFTWARE UNITS" is
hereby added to the License Agreement.
All capitalized terms used but not defined herein shall have the meanings
ascribed to them in the License Agreement. The terms of this Amendment shall
supersede any inconsistent terms contained in the License Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment in duplicate as of
the date first written above. All signed copies of this Amendment shall be
deemed originals. This Amendment is executed in the English language.
MICROSOFT LICENSING, INC. BSQUARE CORPORATION
/s/ XXXXX XXXX /s/ XX XXXXXX
------------------------------------- ------------------------------------
By (Signature) By (Signature)
Xxxxx Xxxx Xx Xxxxxx
------------------------------------- ------------------------------------
Name (Printed) Name (Printed)
OEM Accounting Manager Sr. Vice President
------------------------------------- ------------------------------------
Title Title
December 16, 1998 Nov. 13, 1998
------------------------------------- ------------------------------------
Date Date
37
EXHIBIT C2
WINDOWS CE PRODUCTS FOR DEDICATED SYSTEMS
--------------------------------------------------------------------------------------------------------
PRODUCT NAME AND LANGUAGE APPLICABLE PER COPY LOCALIZATION
VERSION VERSION(S) ADDITIONAL ROYALTY* ADDITIONAL
** PROVISIONS ROYALTY
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
Microsoft(R) Windows(R) CE EN (a), (b), (c), (d), (e) US$* US$_____
Platform Builder
Version 2.11
--------------------------------------------------------------------------------------------------------
Microsoft(R) Windows(R) CE EN (a), (b), (c), (d), (e) US$* US$_____
Platform Builder
Version 2.11, Upgrade
Edition
--------------------------------------------------------------------------------------------------------
* A PRODUCT IS NOT LICENSED HEREUNDER UNLESS ROYALTY RATE(S) ARE INDICATED IN
THE PRODUCT TABLE.
** LANGUAGE KEY: D=GERMAN, EN=ENGLISH, J=JAPANESE. LOCALIZED VERSIONS ARE
LICENSED ON AN IF AND AS AVAILABLE BASIS.
ADDITIONAL PROVISIONS
(a) Notwithstanding anything to the contrary in Sections (a) and 2(d) of the
Agreement, there is no APM available with this Product.
(b) Notwithstanding anything to the contrary in Sections 1(f) and 2(c) of the
Agreement, COMPANY may license the Product to an end user that has not
executed a Sublicense Agreement.
(c) Notwithstanding anything to the contrary in 2(a)(iii), COMPANY is not
authorized to grant any rights to the Product in addition to those
contained in the Product documentation. COMPANY shall inform end user(s)
that they may use the Product only in accordance with the Product
documentation.
(d) (1) Notwithstanding anything to the contrary in section 2(f) of the
Agreement, COMPANY is not required to provide support for the Product.
(2) Notwithstanding anything to the contrary in section 2(k) of the
Agreement, technical support by MS is provided to end user(s) in accordance
with the terms and conditions contained in the Product documentation.
(e) The Product is available from selected MS designated supplier(s) only.
COMPANY should contact its Account Manager for further information.
------------
* Confidential treatment requested
38
EXHIBIT C3
WINDOWS CE PRODUCTS FOR WINDOWS-BASED TERMINAL DEVICES
--------------------------------------------------------------------------------------------------------
PRODUCT NAME AND LANGUAGE APPLICABLE PER COPY LOCALIZATION
VERSION VERSION(S) ADDITIONAL ROYALTY ADDITIONAL
** PROVISIONS * ROYALTY
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
1. Microsoft(R) Windows(R) CE EN (a), (b), (c), US$ * US$_____
Operating System (d), (e), (f), (g)
for Windows(R)- (h), (i)
Based Terminal
devices Version 1.0
--------------------------------------------------------------------------------------------------------
* A PRODUCT IS NOT LICENSED HEREUNDER UNLESS ROYALTY RATE(S) ARE INDICATED IN
THE PRODUCT TABLE.
** LANGUAGE KEY: EN=ENGLISH
ADDITIONAL PROVISIONS KEY
(a) In addition to the Dedicated Product Deliverables for this Product, COMPANY
shall require OEM Customer to obtain in a separate transaction the Microsoft
Windows CE Embedded Toolkit for Visual C++ version 5.0, which includes the
Windows CE 2.1 Enhancement Pack for the Embedded Tool Kit ("ETK") and use the
ETK in accordance with the accompanying instructions to implement the Product on
OEM Customer's Dedicated Systems.
(b) With respect to the ETK components, COMPANY's rights granted hereunder to
sublicense the ETK to OEM Customer shall apply only to the Full Operating
System configuration which is described in the ETK documentation.
(c) COMPANY shall not sign a Sublicense Agreement for the Product without MS'
prior written approval. To assist MS in its review of COMPANY's proposed OEM
Customer, COMPANY shall provide MS with:
(1) the name, address, and business profile in the English language
(including years in business, ownership profile, tradenames used, and
nature of principal business activities) of the proposed OEM
Customer; and
(2) model name, description and specific industry application of proposed
OEM Customer's Dedicated Systems.
(d) Except as set forth in Exhibit W of the OEM Customer Sublicense Agreement,
OEM Customer may distribute Product(s) only with Dedicated Systems which are
marketed and distributed exclusively under OEM Customer's or OEM Customer's
subsidiaries' brand names, trade names and trademarks. The Product(s) may not
be distributed with Dedicated Systems which are marketed or distributed under
any name which includes any third party brand names, trade names or trademarks.
If, at any time, MS becomes aware of any violation of the foregoing, then
without limiting its remedies, MS may charge COMPANY for each such Dedicated
System an additional royalty equal to thirty percent (30%) of the highest
royalty for the Product(s). COMPANY shall pay such additional royalty within
thirty (30) days of receipt of MS' invoice.
(e) COMPANY shall ensure that OEM Customer has executed the applicable logo
license with MSCORP prior to any marketing or distribution of a Dedicated
System. COMPANY hereby agrees to indemnify and defend MS and its Suppliers
from and against all damages, costs and expenses, including reasonable
attorneys' fees, which MS or its Suppliers may incur if the OEM Customer markets
or distributes Dedicated Systems without executing, or in breach of, the
applicable logo license.
(f) "MSCORP Compatibility Test" shall mean MSCORP's then-standard suite of
tests conducted by or for MSCORP to determine whether OEM Customer's Dedicated
System is compliant with the MSCORP testing and compatibility requirements for
the Product. COMPANY shall require of OEM Customer that the Dedicated Systems
pass the MSCORP Compatibility Test and display the Product logo(s), as
designated by MS from time to time, on Dedicated Systems distributed with the
Product. Such logo use shall be in accordance with the applicable logo license
which is available through a separate written agreement with MSCORP. To obtain
additional information regarding the MSCORP Compatibility Test and the MSCORP
logo agreement, COMPANY should contact the Account Manager assigned to COMPANY.
(g) Notwithstanding anything to the contrary in section 1(d) of the Agreement,
"Dedicated System" shall mean OEM Customer's computer systems that (1) comply
with the MSCORP system specifications for Windows-Based Terminal devices; and
(2) provide the end user with the ability to utilize the Microsoft Remote
Desktop Protocol software to connect to the server.
-----------------
Confidential treatment requested
39
ADDITIONAL PROVISIONS KEY
(CONTINUED)
(h) COMPANY shall ensure that for each unit of Product distributed to France,
OEM Customer shall set the Product "end user locale" to "France", thereby
disabling that portion of the Product's encryption functionality which, pursuant
to French law (Decree 92-1358 of December 1992), is not currently authorized for
sale, use, or distribution within France. COMPANY may inform OEM Customer
pursuant to a binding non-disclosure agreement between COMPANY and OEM Customer,
but shall not disclose to third parties, that if "end user locale" is set to any
locale other than "France" this Product will provide a higher level of
encryption technology that may legally be used outside of France. COMPANY shall
not disclose to third parties the contents of this Additional Provision (h).
COMPANY shall defend and indemnify MS and its Suppliers against any claim
related to breach of this Additional Provision(h).
(i) Subject to limitations in the Agreement, MS grants to COMPANY the additional
right to grant to COMPANY's OEM Customer the non-exclusive, limited right to use
the Dedicated Product Deliverables on OEM Customer premises for the purposes and
pursuant to the terms of the Exhibit S of "Attachment 2A to the OEM Customer
Sublicense Agreement For Dedicated Systems - Windows CE Products for
Windows-based Terminal Devices".
40
\ EXHIBIT U
ATTACHMENT 2A
TO OEM CUSTOMER SUBLICENSE AGREEMENT FOR DEDICATED SYSTEMS
WINDOWS CE PRODUCTS FOR WINDOWS-BASED TERMINAL DEVICED
Units of Language Applicable Localization
Product Name SOFTWARE Version(s) Additional Per Royalty Additional
and Version licensed ** Provisions Copy * Royalty
-----------------------------------------------------------------------------------------------------------
1. Microsoft(R) EN (a), (b), (c), US$____ US$____
Windows(R) CE (d), (e), (f),
Operating System (g), (h), (i)
for Windows(R)
Based Terminal
devices version 1.0
* IF ROYALTY RATE AND UNITS OF SOFTWARE ARE NOT SPECIFIED FOR A PARTICULAR
PRODUCT, THEN SUCH PRODUCT IS NOT LICENSED UNDER THIS AGREEMENT.
** LANGUAGE KEY: EN = ENGLISH
ADDITIONAL PROVISIONS KEY
(a)(1) In addition to the Dedicated Product Deliverables for this SOFTWARE which
are provided by COMPANY under this Agreement, Customer shall obtain in a
separate transaction the Microsoft Windows CE Embedded Toolkit for Visual C++
version 5.0, which includes the Windows CE 2.1 Enhancement Pack for the Embedded
Tool Kit ("ETK"). Customer shall use the ETK in accordance with its instructions
to implement the SOFTWARE on Customer's Dedicated Systems.
(2) Notwithstanding anything to the contrary contained in Section 6 of the
Agreement, no warranties for the ETK are provided in the Agreement. The
warranties, if any, contained in the ETK are the only warranties provided for
the ETK.
(b) With respect to the ETK componets, Customer's distribution license granted
hereunder shall apply only to the Full Operating System configuration which is
described in the ETK documentation.
(c)(1) Notwithstanding anything to the contrary contained in Exhibit S to this
Attachment 2A, Section (b) of Exhibit S does not apply to the Dedicated Product
Deliverables.
(2) Notwithstanding anything to the contrary contained in this Agreement,
including the Exhibits attached hereto, Exhibit S does not apply to the ETK.
(d)(1) Customer is not licensed to, and agrees that it will not, modify, in any
way, or delete any aspect of the SOFTWARE (including, without limitation, any
features, shortcuts, icons, "wizards", folders (including sub-folders) or
programs of SOFTWARE) as delivered by COMPANY in the Dedicated Product
Deliverables, except if and as specifically permitted below or in the OEM
Adaptation Kit ("OAK") provided in the Dedicated Product Deliverables. In
particular, and without limitation, this means that Customer is not licensed to
and agrees that it will not:
(A) Modify or obscure, in any way, the sequence or appearance of any
screens displayed by the SOFTWARE as delivered by COMPANY.
(B) Display any visual or audio content from power on through and
including the time that the Dedicated System has displayed the
SOFTWARE initial user interface screen ("UI Screen"), except: (i)
as provided in section (d)(1)(C) below, (ii) for the presentation
of Customer's brand logo(s) and the required SOFTWARE LOGO(s) in
accordance with the Microsoft Corporation system specifications for
Windows-Based Terminal devices and the applicable logo license, or
(iii) for diagnostic notices or interactive prompts required for
hardware or device driver initialization.
41
ADDITIONAL PROVISIONS KEY
(Continued)
(C) Modify or obscure, in any way, the appearance of the initial UI
Screen displayed when the Dedicated System is initially powered on,
(including without limitation, the addition or modification of
background wallpaper bitmaps); provided, however, that Customer may
add icons or folders to the UI Screen provided that any such icons
are the same size as, and substantially similar in shape to, icons
included on the UI Screen as delivered by COMPANY and that any such
folders are the same size, shape and appearance as folders included
on the UI Screen as delivered by COMPANY.
(D) Pre-configure any programs (including without limitation any
"shells", "screen savers" or "welcome" scripts), "wizards" or other
content except for device drivers necessary to support preinstalled
or pre-configured hardware devices (e.g., network interfaces, LCD
panels, or keyboards), terminal emulation clients, or system
administration support (as allowed in the OAK documentation) to be
enabled, run or initialized automatically (i.e. without requiring a
deliberate act of the end user) from an icon or folder on the UI
Screen or otherwise without a deliberate act by the end user. By
way of example only, and without limiting the generality of the
foregoing, Customer agrees that it shall not populate with any
programs or other content the SOFTWARE "Start-up" directory,
initialization or other files in any manner which will cause any
program or content (except specifically noted above in this
(d)(1)(D)) to run or load automatically unless the end user has
taken a prior deliberate action.
(E) Modify or add content to any directories installed by the SOFTWARE,
except as permitted in the OAK for pre-installation of applications
by Customer.
(F) Enable end user applications (i.e., programs that process data for
the end user and are not required for the Dedicated System to
operate or function) to run locally on the Dedicated System with
the exception of device drivers, terminal emulation software, and
system administration support software as set forth in (d)(1)(D)
above, or an onscreen keyboard. All end user applications utilized
on the Dedicated System must reside upon and operate only on the
server to which the Dedicated system is connected.
(2) Any XXXX for the SOFTWARE distributed by Customer must be identical
to the on screen XXXX presented to the end user during SOFTWARE setup.
(e) If Customer installs the SOFTWARE in ROM and the SOFTWARE is not the only
software contained in ROM, Customer will ensure that Microsoft Corporation's
copyright notice for SOFTWARE shall at all times be included in the first four
percent (4%) and the last four percent (4%) of the software contained in ROM.
The copyright notice(s) for SOFTWARE shall be as specified in the Dedicated
Product Deliverables. In any event, Customer will not remove any copyright,
trademark or patent notices that appear on the SOFTWARE as delivered to
Customer.
(f)(1) Except as set forth in Exhibit W, if attached, Customer may distribute
SOFTWARE only with Dedicated Systems which are marketed and distributed
exclusively under Customer's or Customer subsidiaries' brand names, trade names
and trademarks. The SOFTWARE may not be distributed with Dedicated Systems which
are marketed or distributed under any name which includes any third party brand
names, trade names, or trademarks. If, at any time, COMPANY becomes aware of any
violation of the foregoing, then without limiting its remedies, COMPANY may
charge. Customer for each such Dedicated System an additional royalty equal to
thirty percent (30%) of the highest royalty for the SOFTWARE. Customer shall pay
such additional royalty within thirty (30) days of receipt of COMPANY's invoice.
(2) In the event Dedicated Systems are marketed or distributed under a
name which includes any third party brand names, trade names or trademarks,
Customer shall ensure that such third party has executed the applicable logo
license with Microsoft Corporation prior to any marketing or distribution of
such Dedicated Systems. Customer hereby agrees to indemnify and defend COMPANY,
MS and their Suppliers from and against all damages, costs and expenses,
including reasonable attorneys' fees which COMPANY, MS or their Suppliers may
incur if the third party markets or distributes Dedicated
Systems without executing, or in breach of, the applicable logo license.
(g) "MSCORP Compatibility Test" shall mean Microsoft Corporation's
then-standard suite of tests conducted by or for Microsoft Corporation to
determine whether Customer's Dedicated System is compliant with the Microsoft
Corporation testing and compatibility requirements for the SOFTWARE. Dedicated
Systems must pass the MSCORP Compatibility Test and display the SOFTWARE
logo(s), as designated by MS from time to time, on Dedicated Systems
distributed with the SOFTWARE. Such logo use shall be in accordance with the
applicable logo license which is available through a separate written agreement
with Microsoft Corporation. To obtain additional information regarding the
MSCORP Compatibility Test and the Microsoft Corporation logo agreement,
Customer should contact COMPANY.
(h) Customer's XXXX for this SOFTWARE shall be the XXXX set forth in Exhibit 1
attached hereto, except that it shall be modified as indicated in Section 2(e)
of the Agreement.
42
ADDITIONAL PROVISIONS KEY
(Continued)
(i) This SOFTWARE includes encryption technology which is not authorized for
sale, use, or distribution within France. French law (Decree 92-1358 of
December 1992) generally prohibits the use in France of such technology, unless
special approvals are granted. Accordingly, to comply with French law, Customer
shall ensure that for each unit of SOFTWARE distributed in France, the SOFTWARE
setting for "end user locale" shall be set to "France", thereby disabling the
encryption functionality prohibited by French law. Customer shall not disclose
to third parties (including any end users) the contents of the preceding
sentence; Customer, may, however, in its discretion, segregate and
distinctively xxxx Dedicated Systems with end user locale set to France
(noting, for example, but without limitation, that such Dedicated Systems are
"Authorized for distribution in France," or "Not Intended for Use Outside
France"). Customer shall defend and indemnify COMPANY, and MS and their
Suppliers, against any claim related to breach of this Additional Provision(i).
DEDICATED SYSTEMS
Notwithstanding anything to the contrary in Section 1(b) of the Agreement, each
Dedicated System shall (1) comply with the Microsoft Corporation system
specifications for Windows-Based Terminal devices, and (2) provide the end user
with the ability to utilize the Microsoft Remote Desktop Protocol software to
connect to the server. Dedicated Systems for SOFTWARE described in this
Attachment 2A shall be limited to Customer's current and future computing
devices described below.
At Customer's option, for purposes of administrative convenience, Customer may
designate models by "all models" or by "model line" or "series", (e.g., "Jaguar
model line", "Jaguar Pro series", "Jaguar Pro 750 model line", "Jagual Pro 950
series", etc.). Dedicated Systems defined by "all models" shall include all
current and future models that meet the description specified in the table
(e.g., "All models which include a CD-ROM drive, 500 Mb or larger hard disk
drive, and sound card.") and utilize the listed microprocessor(s). Dedicated
Systems defined by model line or series shall include all current and future
models which include the designated model line or series name, (e.g., "Jaguar
Pro model line" includes Jaguar Pro, Jaguar Pro 950, Jaguar Pro S, etc.; "Jaguar
series" includes Jaguar, Jaguar Pro, Jaguar Pro 950, Jaguar S400, etc.; "Jaguar
Pro 950 series" includes Jaguar Pro 950, Jaguar Pro 955, etc.).
PRODUCT NUMBER KEY: 1 = Windows(R) CE Operating System for Windows-Based
Terminal devices version 1.0;
ROYALTY BASIS KEY: C = per copy; if Product box is blank, such Product is not
licensed for distribution with the listed Dedicated System.
---------------------------------------------------------------------------------------------------------
PRODUCT NUMBER
MODEL NAME, MODEL NUMBER, MODEL LINE, PROCESSOR MANUFACTURER
OR MODEL DESCRIPTION TYPE 1 2 3 4 5
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
43
EXHIBIT X
XXXXXXXXXX 0X
XXXXXXX 0
XXXXXXXXX(X) XXXXXXX(X) CE OPERATING SYSTEM FOR WINDOWS-BASED TERMINAL DEVICES
VERSION 1.0
--------------------------------------------------------------------------------
IMPORTANT--READ CAREFULLY: THIS END USER LICENSE AGREEMENT ("XXXX") IS A LEGAL
AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND THE
MANUFACTURER ("MANUFACTURER") OF THE SPECIAL PURPOSE COMPUTING DEVICE ("SYSTEM")
YOU ACQUIRED WHICH INCLUDES CERTAIN MICROSOFT SOFTWARE PRODUCT(S) INSTALLED ON
THE SYSTEM AND/OR INCLUDED IN THE SYSTEM PACKAGE ("SOFTWARE"). THE SOFTWARE
INCLUDES COMPUTER SOFTWARE, THE ASSOCIATED MEDIA, ANY PRINTED MATERIALS, AND ANY
"ONLINE" OR ELECTRONIC DOCUMENTATION. BY INSTALLING, COPYING, DOWNLOADING, OR
OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS XXXX.
IF YOU DO NOT AGREE TO THE TERMS OF THIS XXXX, MANUFACTURER AND MICROSOFT
LICENSING, INC. ("MS") ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU. IN SUCH
EVENT, YOU MAY NOT USE OR COPY THE SOFTWARE, AND YOU SHOULD PROMPTLY CONTACT
MANUFACTURER FOR INSTRUCTIONS ON RETURN OF THE UNUSED PRODUCT(S) FOR A REFUND.
------------------------------------------------------------------------------
SOFTWARE LICENSE
The SOFTWARE is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The SOFTWARE
is licensed, not sold.
1. GRANT OF LICENSE. SOFTWARE includes software already installed on the
SYSTEM ("SYSTEM Software") and, if included in the SYSTEM package, software
contained on the CD-ROM disk and/or floppy disk(s) labeled "Desktop
Software for Microsoft Windows CE" ("Desktop Software"). This XXXX grants
you the following rights to the SOFTWARE:
- SYSTEM SOFTWARE. You may use the SYSTEM Software only as installed in
the SYSTEM.
- DESKTOP SOFTWARE. Desktop Software might not be included with your
SYSTEM. If Desktop Software is included with your SYSTEM, you may
install and use the component(s) of the Desktop Software in accordance
with the terms of the end user license agreement provided with such
component(s). In the absence of a separate end user license agreement
for particular component(s) of the Desktop Software, you may install
and use only one (1) copy of such component(s) on a single computer
with which you use the SYSTEM.
- USE OF WINDOWS CE OPERATING SYSTEM FOR WINDOWS-BASED TERMINAL DEVICES
WITH MICROSOFT WINDOWS NT SERVER, TERMINAL SERVER EDITION. If the
SOFTWARE is Windows CE operating system for Windows-Based Terminal
devices, the following special provisions apply. In order to use the
SYSTEM in connection with Windows NT Server, Terminal Server Edition,
you must possess (1) a Client Access License for Windows NT Server,
Terminal Server Edition and (2) an end user license for Windows NT
Workstation or an end user license agreement for Windows NT
Workstation for Windows-Based Terminal Devices (please refer to the
end user license agreement for Windows NT Server, Terminal Server
Edition for additional information). Manufacturer may have included a
Certificate of Authenticity for Windows NT Workstation for
Windows-Based Terminal Devices with the SYSTEM. In that case, this
XXXX constitutes an end user license for the version of Windows NT
Workstation for Windows-Based Terminal Devices indicated on such
Certificate of Authenticity.
- BACK-UP COPY. If Manufacturer has not included a back-up copy of the
SYSTEM Software with the SYSTEM, you may make a single back-up copy of
the SYSTEM Software. You may use the back-up copy solely for archival
purposes.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
- SPEECH/HANDWRITING RECOGNITION. If the SYSTEM Software includes speech
and/or handwriting recognition component(s), you should understand
that speech and handwriting recognition are inherently statistical
processes; that recognition errors are inherent in the processes; that
it is your responsibility to provide for handling such errors and to
monitor the recognition processes and correct any errors. NEITHER
MANUFACTURER NOR ITS SUPPLIERS SHALL BE LIABLE TO ANY DAMAGES ARISING
OUT OF ERRORS IN THE SPEECH AND HANDWRITING RECOGNITION PROCESSES.
- LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You
may not reverse engineer, decompile, or disassemble the SYSTEM
Software, except and only to the extent that such activity is
expressly permitted by applicable law notwithstanding this limitation.
44
o SINGLE SYSTEM. The SYSTEM Software is licensed with the SYSTEM as a
single integrated product. The SYSTEM Software installed in Read Only
Memory ("ROM") of the SYSTEM may only be used as part of the SYSTEM.
o SINGLE XXXX. The package for the SYSTEM Software may contain multiple
versions of this XXXX, such as multiple translations and/or multiple
media versions (e.g., in the user documentation and in the software).
Even if you receive multiple versions of the XXXX, you are licensed
to use only one (1) copy of the SYSTEM Software.
o RENTAL. You may not rent or lease the SOFTWARE.
o SOFTWARE TRANSFER. You may permanently transfer all of your rights
under this XXXX only as part of a sale or transfer of the SYSTEM,
provided you retain no copies, you transfer all of the SOFTWARE
(including all component parts, the media, any upgrades or backup
copies, this XXXX and, if applicable, the Certificate(s) of
Authenticity), AND the recipient agrees to the terms of this XXXX. If
the SOFTWARE is an upgrade, any transfer must include all prior
versions of the SOFTWARE.
o TERMINATION. Without prejudice to any other rights, Manufacturer or
MS may terminate this XXXX if you fail to comply with the terms
and conditions of this XXXX. In such event, you must destroy all
copies of the SOFTWARE and all of its component parts.
3. UPGRADES. If the SYSTEM Software and this XXXX are provided separate from
the SYSTEM by Manufacturer and the SYSTEM Software is on a ROM chip, CD ROM
disk(s) or floppy disk(s), and labeled "For ROM Upgrade Purposes Only"
("ROM Upgrade"), you may install one copy of the ROM Upgrade onto the
SYSTEM as a replacement copy for the SYSTEM Software originally installed
on the SYSTEM and use it in accordance with Section 1 of this XXXX.
4. COPYRIGHT. All title and copyrights in and to the SOFTWARE (including but
not limited to any images, photographs, animations, video, audio, music,
text and "applets," incorporated into the SOFTWARE), the accompanying
printed materials, and any copies of the SOFTWARE, are owned by MS or its
suppliers (including Microsoft Corporation). You may not copy the printed
materials accompanying the SOFTWARE. All rights not specifically granted
under this XXXX are reserved by MS and its suppliers (including Microsoft
Corporation).
5. PRODUCT SUPPORT. PRODUCT SUPPORT FOR THE SOFTWARE IS NOT PROVIDED BY MS,
ITS PARENT CORPORATION, MICROSOFT CORPORATION,OR THEIR AFFILIATES OR
SUBSIDIARIES. FOR PRODUCT SUPPORT, PLEASE REFER TO MANUFACTURER'S SUPPORT
NUMBER PROVIDED IN THE DOCUMENTATION FOR THE SYSTEM. SHOULD YOU HAVE ANY
QUESTIONS CONCERNING THIS XXXX, OR IF YOU DESIRE TO CONTACT MANUFACTURER
FOR ANY OTHER REASON, PLEASE REFER TO THE ADDRESS PROVIDED IN THE
DOCUMENTATION FOR THE SYSTEM.
6. EXPORT RESTRICTIONS. You agree that you will not export or re-export the
SOFTWARE to any country, person, or entity subject to U.S. export
restrictions. You specifically agree not to export or re-export the
SOFTWARE: (i) to any country to which the U.S. has embargoed or restricted
the export of goods or services, which as of March 1998 include, but are
not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan and
Syria, or to any national of any such country, wherever located, who
intends to transmit or transport the products back to such country; (ii) to
any person or entity who you know or have reason to know will utilize the
SOFTWARE or portion thereof in the design, development or production of
nuclear, chemical or biological weapons; or (iii) to any person or entity
who has been prohibited from participating in U.S. export transactions by
any federal agency of the U.S. government.
If the SOFTWARE is labeled "North America Only Version" above, on the
Product Identification Card, or on the SOFTWARE packaging or other written
materials, then the following applies: The SOFTWARE Is intended for
distribution only in the United States, its territories and possessions
(including Puerto Rico, Guam, and U.S. Virgin Islands) and Canada. Export
of the SOFTWARE from the United States is regulated under "El controls" of
the Export Administration Regulations (EAR, 15 CFR 730-744) of the U.S.
Commerce Department, Bureau of Export Administration (BXA). A license is
required to export the SOFTWARE outside the United States or Canada. You
agree that you will not directly or indirectly, export or re-export the
SOFTWARE (or portions thereof) to any country, other than Canada, or to any
person or entity subject to U.S. export restrictions without first
obtaining a Commerce Department export license. You warrant and represent
that neither the BXA nor any other U.S. federal agency has suspended,
revoked or denied your export privileges.
7. NOTE ON JAVA SUPPORT. The SYSTEM Software may contain support for programs
written in Java. Java technology is not fault tolerant and is not designed,
manufactured, or intended for use or resale as on-line control equipment in
hazardous environments requiring fail-safe performance, such as in the
operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons
systems, in which the failure of Java technology could lead directly to
death, personal injury, or severe physical or environmental damage.
45
8. LIMITED WARRANTY.
o LIMITED WARRANTY. Manufacturer warrants that the SOFTWARE will perform
substantially in accordance with the accompanying written materials for
a period of ninety (90) days from the date of receipt. Any implied
warranties on the SOFTWARE are limited to ninety (90) days. Some
states/jurisdictions do not allow limitations on duration of an implied
warranty, so the above limitation may not apply to you.
o CUSTOMER REMEDIES. Manufacturer's and its suppliers' entire liability
and your exclusive remedy shall be, at Manufacturer's option, either (a)
return of the price paid, or (b) repair or replacement of the SOFTWARE
that does not meet the above Limited Warranty and which is returned to
Manufacturer with a copy of your receipt. This Limited Warranty is void
if failure of the SOFTWARE has resulted from accident, abuse, or
misapplication. Any replacement SOFTWARE will be warranted for the
remainder of the original warranty period or thirty (30) days, whichever
is longer.
o NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED
WARRANTY SECTION ABOVE, THE SOFTWARE IS PROVIDED TO THE END USER "AS
IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE
RISK OF THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU.
o NO LIABILITY FOR CONSEQUENTIAL DAMAGES. MANUFACTURER OR MANUFACTURER'S
SUPPLIERS, INCLUDING MS AND ITS SUPPLIERS, SHALL NOT BE HELD TO ANY
LIABILITY FOR ANY DAMAGES SUFFERED OR INCURRED BY THE END USER
(INCLUDING, BUT NOT LIMITED TO, GENERAL, SPECIAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE),
ARISING FROM OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF
THE SOFTWARE.
If you acquired this XXXX in the United States, this XXXX is governed by the
laws of the State of Washington.
If you acquired this XXXX in Canada, this XXXX is governed by the laws of the
Province of Ontario, Canada. Each of the parties hereto irrevocably attorns to
the jurisdiction of the courts of the Province of Ontario and further agrees to
commence any litigation which may arise hereunder in the courts located in the
Judicial District of York, Province of Ontario.
If this XXXX was acquired outside the United States, then local law may apply.
Should you have any questions concerning this XXXX, please contact the
Manufacturer of your SYSTEM.
--------------------------------------------------------------------------------
U.S. GOVERNMENT RESTRICTED RIGHTS
The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. Use,
duplication, or disclosure by the Government is subject to restrictions as set
forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the
Commercial Computer Software--Restricted Rights at 48 CFR 52.227-19, as
applicable. Manufacturer is Microsoft Corporation/One Microsoft Xxx/Xxxxxxx, XX
00000-0000.
46
EXHIBIT U
ATTACHMENT 2A
EXHIBIT S
USE OF DEDICATED PRODUCT DELIVERABLES FOR WINDOWS CE SOFTWARE
(a) COMPANY grants to Customer a non-exclusive, personal, nontransferable,
non-assignable license during the term of the Agreement to:
(i) use on Customer premises the Dedicated Product Deliverables (other
than the Software Development Kit, if provided) in accordance with the
instructions contained in the Dedicated Product Deliverables for the
following limited purposes:
(A) creating an OEM Abstraction Layer for the SOFTWARE on Customer's
Dedicated Systems;
(B) testing Customer's Dedicated Systems;
(C) creating device drivers for Customer's Dedicated Systems; and
(ii) use on Customer premises the Software Development Kit in accordance
with the instructions contained therein to design software applications for
the SOFTWARE; and
(iii) distribute the Object Code files in the Software Development Kit
designated as "Redistributable Components" only in conjunction with
Customer's software application product, provided that:
(A) Customer's software application product is designed to operate
with the SOFTWARE and is fully compatible with the applicable SOFTWARE APIs
and protocols;
(B) Customer does not use MS' or Microsoft Corporation's name, logo
(except by separate written agreement with MS or Microsoft Corporation), or
trademarks to market the software application product;
(C) Customer includes MS' or Microsoft Corporation's copyright
notices for the SOFTWARE on the disk label and/or on the title page of the
documentation for the software application product; and
(D) Customer hereby indemnifies, holds harmless, and defends COMPANY,
MS and their Suppliers from and against any claims or lawsuits, including
attorney's fees, that arise or result from the use or distribution of the
software application product.
The limited license granted hereunder is solely for Customer's internal use. MS
reserves all rights not expressly licensed hereunder.
(b) MS and Customer shall jointly own any and all intellectual property in and
to any modifications or additions made by or for Customer to the OEM Abstraction
Layer and device drivers. To the extent required to realize such joint
ownership, Customer hereby assigns to MS an undivided one-half interest in any
and all such intellectual property. The parties agree that each shall be free to
use and commercially exploit their interests in such intellectual property and
there shall be no obligation of payment or accounting to the other therefore,
provided that Customer's use or exploitation of such intellectual property shall
at all times be subject to the terms of this Agreement and shall be exercised
solely in connection with the SOFTWARE.
(c) Customer shall comply with the confidentiality obligations under Section 11
of the Agreement. In addition, Customer shall use best efforts to safeguard the
Dedicated Product Deliverables from disclosure, which care shall not be less
than the standard of care Customer uses to protect its own most confidential
information. Customer shall not reproduce, duplicate, copy or otherwise
disclose, distribute or disseminate any part of the Dedicated Product
Deliverables or additional information or materials provided pursuant to this
Exhibit S in any media except for Customer's own internal use by Customer's
full-time employees on a need-to-know basis on Customer premises. Customer
hereby indemnifies COMPANY, MS and their Suppliers for any damages COMPANY, MS
or their Suppliers may suffer as a result of the failure of Customer to abide by
the terms of Section 11 of the Agreement or this Exhibit S. Notwithstanding
anything to the contrary in Section 11, Customer's confidentiality obligations
with respect to Source Code provided in connection with the Dedicated Product
Deliverables shall continue until such time as MS or Microsoft Corporation
places such Source Code in the public domain.
(d) Notwithstanding Section (c) above, Customer may disclose the Dedicated
Product Deliverables to a third party contractor which MS has confirmed in
writing to be an MS authorized Windows CE Integrator and employ such Windows CE
Integrator as a third party contractor of Customer to use the Dedicated Product
Deliverables in accordance with the Agreement and this Exhibit S, provided that:
(i) Customer and its contractor enter into a written agreement
(hereinafter "Contractor Agreement") that expressly provides that MS is a
third party intended beneficiary of the Contractor Agreement with rights to
enforce such agreement, and that requires contractor:
(A) to comply with obligations identical to those imposed on Customer
by the Agreement, including, without limitation, those obligations set
forth in Sections (b) and (c) of this Exhibit S;
(B) to cease all reference to, and to return all full or partial
copies of, the Dedicated Product Deliverables upon notice from Customer,
COMPANY, or MS of the termination or expiration of the Agreement; and
47
EXHIBIT U
ATTACHMENT 2A
EXHIBIT S
(Continued)
(C) to pay COMPANY's MS' or their Suppliers or Customer's attorneys'
fees and costs if COMPANY, Customer or MS or their Suppliers employ(s)
attorneys to enforce any rights arising out of the Contractor Agreement;
(ii) Customer guarantees its contractors' fulfillment of the applicable
obligations imposed on Customer by this Agreement;
(iii) Customer hereby indemnifies COMPANY, MS and their Suppliers with
respect to any and all damages of any kind, without limitation, caused by
unauthorized reproduction and/or distribution of any portion of the
Dedicated Product Deliverables by any such contractor or by any other breach
of the Contractor Agreement by any such contractor; and
(iv) Customer notifies MS of the name and address of any contractor with
which Customer intends to enter into a Contractor Agreement at least sixty
(60) days before execution of such agreement, and MS approves in writing
such contractor. Customer's notice to MS shall also include a written
summary of the terms of any such Contractor Agreement(s), including: the
specific activity to be performed by the contractor; the SOFTWARE involved;
the term of the agreement with the contractor; and such samples as MS may
reasonably request of the work product of the contractor. Customer shall
promptly notify MS of the termination, expiration or significant
modification of the terms of such Contractor Agreement(s).
(e) In the event of an assignment or attempted assignment in violation of
Section 12 of the Agreement, the license described in this Exhibit S shall
immediately terminate and the Dedicated Product Deliverables shall be returned
to COMPANY within ten (10) days. Customer shall provide a declaration signed by
an officer of Customer, and a declaration signed by an officer of the
authorized Windows CE Integrator, attesting that all copies of the Dedicated
Product Deliverables have been returned to COMPANY.
------------------------------------- -------------------------------------
(Name of COMPANY) (Named of Customer)
------------------------------------- -------------------------------------
By By
------------------------------------- -------------------------------------
Name (Print) Name (Print)
------------------------------------- -------------------------------------
Title Title
------------------------------------- -------------------------------------
Date Date
48
EXHIBIT V3
LICENSE OF ADDITIONAL PRODUCT SOFTWARE UNITS
[THIS EXHIBIT V3 IS FOR USE ONLY WITH AGREEMENTS THAT INCLUDE
"WINDOWS CE PRODUCTS FOR WINDOWS-BASED TERMINAL DEVICES" AS EXHIBIT C3]
AMENDMENT NUMBER ____
Amendment Date:________
to OEM CUSTOMER SUBLICENSE AGREEMENT FOR DEDICATED SYSTEMS
between ______________________, a Corporation of __________________
and _________________, a Corporation of ____________________
Agreement Effective Date:_________________
WHEREAS, Customer has licensed a certain number of units of Product
Software (the "SOFTWARE") from COMPANY under the terms of the above referenced
license agreement (the "Agreement");
WHEREAS, Customer now desires to license additional units of SOFTWARE from
COMPANY as described in the Additional Units Attachment dated ________, 199__,
which is attached to this Amendment;
NOW, THEREFORE, Customer and COMPANY hereby agree:
1. Effective as of the date indicated on the Additional Units Attachment, such
Additional Units Attachment is hereby added to the Agreement and sets forth this
number of additional units of the SOFTWARE and the language version(s) licensed
to Customer under the terms and conditions of the Agreement.
2. Customer may license additional SOFTWARE on the Additional Units Attachment
only for the SOFTWARE and the language version(s) that are currently licensed by
Customer under the Agreement between Customer and COMPANY. In order to license
SOFTWARE or language version(s) not currently licensed under the Agreement with
COMPANY, Customer shall execute a new OEM Customer Sublicense Agreement for
Dedicated Systems which includes such SOFTWARE and/or language version(s).
3. All capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Agreement. The terms of this Amendment shall supersede
any inconsistent terms contained in the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment by their duly
authorized representatives as of the date set forth above. All signed copies of
this Amendment shall be deemed originals. Each individual signing on behalf of
Customer hereby represents and warrants that he or she has full authority to
sign this Agreement and bind Customer to perform all duties and obligations
contemplated by this Amendment. If Customer is located in a jurisdiction in
which a corporate seal or "chop" is commonly used as an instrument of agreement
execution, in addition to the individual signature provided below, Customer's
seal or "chop" should be entered below Customer's signature block. This
Amendment is executed only in the English language.
----------------------------------- ---------------------------------
(Name of COMPANY) (Name of Customer)
----------------------------------- ---------------------------------
By (Signature) By (Signature)
----------------------------------- ---------------------------------
Name (Print) Name (Print)
----------------------------------- ---------------------------------
Title Title
----------------------------------- ---------------------------------
Date Date
-----------------------------
Customer's seal or "chop"
-----------------------------
49
EXHIBIT V3
ADDITIONAL UNITS ATTACHMENT (CONT.)
Dated: ____________________
------------------------------------------------------------------------------------------------------------
PRODUCT NAME AND VERSION ADDITIONAL UNITS OF SOFTWARE LICENSED LANGUAGE VERSION
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
Microsoft(R) Windows(R) CE Operating System for _______________________
Windows(R)-Based Terminal devices version 1.0
------------------------------------------------------------------------------------------------------------
50
SIGNED
ORIGINAL
AMENDMENT NUMBER 3
Amendment Date: December 1st, 1998
to MICROSOFT SOFTWARE FOR DEDICATED SYSTEMS DISTRIBUTOR AGREEMENT
between MICROSOFT LICENSING, INC., a Nevada, U.S.A. Corporation
and BSQUARE CORPORATION, a Corporation of Washington, U.S.A.
Agreement Effective Date: November 1st, 1997
MICROSOFT LICENSE #7772-7310 (SAP: 5000020519)
Microsoft Corporation transferred its OEM licensing operations to its wholly
owned subsidiary, Microsoft Licensing, Inc., a Nevada, U.S.A. Corporation, on
December 31, 1997. Accordingly, the above referenced license agreement
(hereinafter the "Agreement") was assigned by separate instrument to Microsoft
Licensing, Inc. on that date.
BSQUARE CORPORATION, ("COMPANY") has licensed from Microsoft Licensing, Inc.
("MS") the right to distribute certain Product Software (the "SOFTWARE") under
the terms of the above referenced distributor agreement (the "Agreement");
Now, therefore, MS and COMPANY hereby agree that effective as of the Amendment
Date set forth above:
1. COMPANY may license OEM Customers approved by MS in writing in each instance
to employ third party installer(s) to install one (1) copy of the SOFTWARE on
OEM Customer's Dedicated Systems in accordance with the terms of the Sublicense
Agreement, provided:
a. COMPANY and its OEM Customer shall execute an amendment in the
form attached hereto as Attachment 1 in order to add Exhibit I
to the OEM Customer Sublicense Agreement for Dedicated Systems
between COMPANY and OEM Customer;
b. COMPANY and its OEM Customer shall comply with all terms and
conditions contained in Exhibit I;
c. COMPANY shall ensure that its OEM Customer and the third party
installer(s) execute an Installation Agreement which complies
with Exhibit I of the Sublicense Agreement;
d. COMPANY shall submit to MS the following information in the
English language: (i) the name, address, and business profile
of the OEM Customer's proposed third party installer(s), which
installer(s) COMPANY shall not approve until such time as MS
approves the third party installer(s); and (ii) a copy of each
executed Installation Agreement.
e. COMPANY shall, upon MS request: (i) commence an audit of the
third party installer(s) in accordance with Exhibit I of the
Sublicense Agreement, and (ii) provide information concerning
the SOFTWARE installed, the corresponding Dedicated Systems
and shipment destination(s).
f. COMPANY shall cooperate fully with MS in protecting and
enforcing MS rights set forth in the Agreement.
2. The parties agree that Section 9 of the Agreement is hereby amended and shall
read as follows:
"9. TERM OF AGREEMENT.
The term of this Agreement shall run from the Effective Date until two
(2) years from the end of the calendar quarter in which the Effective Date
occurs."
3. All capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Agreement. The terms of this Amendment shall supersede
any inconsistent terms contained in the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment by their duly
authorized representatives as of the date set forth above. All signed copies of
this Amendment shall be deemed originals. Each individual signing on behalf of
COMPANY below hereby represents and warrants that he or she has full authority
to sign this Agreement and bind COMPANY to perform all duties and obligations
contemplated by this Amendment. If COMPANY is located in a jurisdiction in which
a corporate seal or "chop" is commonly used as an instrument of agreement
execution, in addition to the individual signature provided below, COMPANY's
seal or "chop" should be entered below COMPANY's signature block. This Amendment
is executed only in the English language.
51
IN WITNESS WHEREOF, the parties have executed this Amendment by their duly
authorized representatives as of the date set forth above. All signed copies of
this Amendment shall be deemed originals. Each individual signing on behalf of
COMPANY below hereby represents and warrants that he or she has full authority
to sign this Agreement and bind COMPANY to perform all duties and obligations
contemplated by this Amendment. If COMPANY is located in a jurisdiction in which
a corporate seal or "chop" is commonly used as an instrument of agreement
execution, in addition to the individual signature provided below, COMPANY's
seal or "chop" should be entered below COMPANY's signature block. This Amendment
is executed only in the English language.
MICROSOFT LICENSING, INC. BSQUARE CORPORATION
/s/ XXXXX XXXX /s/ XXXXXXX X. XXXXXX
---------------------------- ----------------------------
By (Signature) By (Signature)
XXXXX XXXX XXXXXXX X. XXXXXX
---------------------------- ----------------------------
Name (Print) Name (Print)
OEM Accounting Manager President/CEO
---------------------------- ----------------------------
Title Title
January 6, 1999 December 17, 1998
---------------------------- ----------------------------
Date Date
COMPANY's seal or "chop"
52
ATTACHMENT 1
AMENDMENT NUMBER ___
Amendment Date: _____
to OEM CUSTOMER SUBLICENSE AGREEMENT FOR DEDICATED SYSTEMS
between ____________________, a Corporation of ______________("COMPANY")
and ________________, a Corporation of __________________ ("CUSTOMER")
Agreement Effective Date: __________
WHEREAS, Customer has licensed certain Product Software (the "SOFTWARE")
from COMPANY under the terms of the above referenced license agreement (the
"Agreement");
WHEREAS, Customer now desires to contract with a third party to install
such SOFTWARE onto Customer's Dedicated Systems;
NOW, THEREFORE, Customer and COMPANY hereby agree:
1. Effective as of the Amendment Date above, the attached Exhibit I is hereby
added to the Agreement and Customer hereby agrees to comply with all terms and
conditions set forth in Exhibit I.
2. All capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Agreement. The terms of this Amendment shall supersede
any inconsistent terms contained in the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment by their duly
authorized representatives as of the date set forth above. All signed copies of
this Amendment shall be deemed originals. Each individual signing on behalf of
COMPANY below hereby represents and warrants that he or she has full authority
to sign this Agreement and bind COMPANY to perform all duties and obligations
contemplated by this Amendment. If COMPANY is located in a jurisdiction in
which a corporate seal or "chop" is commonly used as an instrument of agreement
execution, in addition to the individual signature provided below, COMPANY's
seal or "chop" should be entered below COMPANY's signature block. This
Amendment is executed only in the English language.
---------------------------- ----------------------------
(CUSTOMER NAME) (CUSTOMER NAME)
---------------------------- ----------------------------
By (Signature) By (Signature)
---------------------------- ----------------------------
Name (Print) Name (Print)
---------------------------- ----------------------------
Title Title
---------------------------- ----------------------------
Date Date
COMPANY's seal or "chop"
53
EXHIBIT I
CUSTOMER USE OF THIRD PARTY INSTALLERS
Except as expressly provided in this Exhibit I, CUSTOMER shall not reproduce,
duplicate, copy or otherwise permit the installation of SOFTWARE except on
CUSTOMER premises by CUSTOMER employees. CUSTOMER may engage a third party
installer specifically approved in writing by COMPANY ("Third Party Installer")
to install the SOFTWARE for CUSTOMER on the Dedicated System hard disk or ROM
pursuant to Section 2(a)(i) of the OEM Customer Sublicense Agreement for
Dedicated Systems between COMPANY and CUSTOMER (the "Agreement") provided that
all of the conditions listed below are and remain satisfied.
(a) CUSTOMER shall provide COMPANY with the name, address, and business
profile in the English language (including years in business, ownership profile,
tradenames used, nature of principle business activities, and summary of any
prior experience with installation or replication of MS software products) of
any Third Party Installer CUSTOMER intends to engage for installation of the
SOFTWARE at least sixty (60) days before CUSTOMER intends to have the Third
Party Installer begin work for CUSTOMER. The Third Party Installer must be
approved in writing by COMPANY prior to beginning work.
(b) CUSTOMER shall enter into a written agreement with the Third Party
Installer (hereinafter "Installation Agreement") that expressly provides that MS
and COMPANY are third party intended beneficiaries of the Installation Agreement
with rights to enforce such agreement, and that requires the Third Party
Installer:
(1) to comply with obligations identical to those imposed on CUSTOMER
by Xxxxxxx 0(x), 0(x), 0(x), 0(x), 0(x), 0(x), 0(x), 10, 11, 12 of the
Agreement;
(2) to consent to venue and jurisdiction in the State of Washington
with respect to any action brought by MS to enforce its rights under the
Installation Agreement;
(3) to provide access to Third Party Installer premises to audit or
inspection team(s) sent on behalf of MS, CUSTOMER or COMPANY, with or without
notice, in order that such team may perform an audit of the Third Party
Installer's books and records and/or an inspection of the Third Party
Installer's procedures to determine compliance with the terms of the
Installation Agreement and the Agreement;
(4) to halt reproduction of the SOFTWARE upon notice from MS,
CUSTOMER or COMPANY;
(5) to distribute the Dedicated Systems with preinstalled SOFTWARE
only to CUSTOMER;
(6) to pay MS, CUSTOMER'S or COMPANY'S attorneys' fees if MS,
CUSTOMER or COMPANY employs attorneys to enforce any rights arising out of the
Installation Agreement;
(7) to report to CUSTOMER information concerning SOFTWARE installed
including, without limitation, the number of units of SOFTWARE installed,
corresponding Dedicated System model name(s), and shipment destination, and
(8) A sample Installation Agreement which CUSTOMER may wish to use as
a framework for the Installation Agreement is attached hereto as Attachment A to
this Exhibit I.
(c) CUSTOMER shall report to COMPANY within fifteen (15) days of the end
of each calendar month, the number of units of each SOFTWARE which the Third
Party Installer shipped to CUSTOMER during such month.
(d) CUSTOMER hereby agrees to cease use of any Third Party Installer upon
receipt of written notice from MS or COMPANY.
(e) CUSTOMER hereby unconditionally and irrevocably guarantees the Third
Party Installer's fulfillment of the applicable obligations imposed by this
Agreement and/or the Installation Agreement.
(f) CUSTOMER hereby indemnifies COMPANY for all damages (including
attorney's fees) of any kind in connection with the Third Party Installer's
activities for CUSTOMER, including, without limitation, damages resulting from:
(1) a breach of the terms of this Agreement and/or the Installation Agreement,
or (2) any and all unauthorized reproduction and/or distribution of any portion
of the SOFTWARE by the Third Party Installer.
(g) Within thirty (30) days of CUSTOMER's execution of the Installation
Agreement with each Third Party Installer, CUSTOMER shall provide a copy of such
agreement to COMPANY. CUSTOMER acknowledges that COMPANY will provide a copy of
such agreement to MS. If the Installation Agreement is not completed in the
English language, CUSTOMER shall also provide an accurate and complete English
translation thereof.
(h) CUSTOMER shall promptly notify COMPANY of the termination, expiration
or significant modification of the terms of the Installation Agreement.
(i) Sections (e) and (f) of this Exhibit I shall survive any termination
of expiration of this Exhibit I.
54
ATTACHMENT A TO EXHIBIT I
SAMPLE INSTALLATION AGREEMENT
THIS INSTALLATION AGREEMENT ("Agreement") is made and entered into this
____ day of ______________, 19__ ("Effective Date") by and between ____________,
a ___________________ corporation ("CUSTOMER") and ______________________, a
____________________ corporation ("INSTALLER").
RECITALS
WHEREAS, CUSTOMER has licensed certain software Product(s) as defined
below from an MS Distributor; and
WHEREAS, CUSTOMER desires to have INSTALLER install the Product(s) on
the hard disk or ROM of CUSTOMER's Dedicated Systems;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. DEFINITIONS.
a. "Dedicated System" shall mean CUSTOMER's dedicated system product(s)
described in the attached Exhibit B which INSTALLER manufactures for CUSTOMER or
which CUSTOMER provides to INSTALLER for purposes of this Agreement. Each such
Dedicated System is a CUSTOMER computer system or computing device which
utilizes a single microprocessor and is designed for exclusive use with a
dedicated application that provides the primary functionality of the system or
device. A Dedicated System excludes any general or multi-purpose personal,
laptop, desktop, handheld, notebook, or server computers which address the
office automation or consumer computing markets and shall not be useable as a
commercially acceptable substitute for such computers or devices.
b. "MS" shall mean Microsoft Licensing, Inc.
c. "MS Distributor" shall mean an MS authorized distributor which
licenses certain Product(s) (as defined below) from MS under the terms of a
Microsoft Software for Dedicated Systems Distributor Agreement.
d. "OEM License" shall mean the OEM Customer Sublicense Agreement for
Dedicated Systems between CUSTOMER and MS Distributor which is identified in the
attached Exhibit A.
e. "Product(s)" shall mean the copyrighted and patented Microsoft
Corporation software product(s) described in the attached Exhibit B licensed to
CUSTOMER by MS Distributor under the OEM License.
2. INSTALLATION SERVICES.
a. Subject to the terms and conditions of this Agreement, INSTALLER
shall, if directed by CUSTOMER: (i) install the Product(s) in object code form
in the nonvolatile, solid-state memory, on the hard disk drive, or in other
nonvolatile form of CUSTOMER's Dedicated Systems using the installation
utilities and master copy of Product software provided by CUSTOMER.
b. Installation of Product(s) shall be performed by INSTALLER employees
only at the specific INSTALLER premises indicated in Section 11 of this
Agreement.
c. INSTALLER shall deliver the Dedicated Systems with installed Product
only to CUSTOMER.
d. INSTALLER shall halt reproduction of the Product upon notice from
MS, CUSTOMER or MS Distributor.
e. INSTALLER shall not reverse engineer, decompile or disassemble any
Product(s).
f. INSTALLER shall place a notice over either the Dedicated System
power switch in the "off" position or the power inlet connector which informs
the end user that turning on the Dedicated System indicates acceptance of the
terms of the end user license agreement ("XXXX"), or such other procedure as is
authorized by CUSTOMER.
3. REPORTS TO MS DISTRIBUTOR. INSTALLER shall report promptly to MS Distributor
information concerning INSTALLER's installation of the Product(s) for CUSTOMER
including, without limitation, the number of units of each Product installed,
corresponding Dedicated System model name(s), and shipment destination.
4. COPYRIGHT AND PATENT NOTICES. INSTALLER will not remove, modify, or obscure
any copyright, trademark or patent notices that appear in or on the Product(s)
as delivered by CUSTOMER.
CONFIDENTIAL
55
5. TERM. This Agreement shall commence on the Effective Date and continue until
the earlier of (i) termination by MS Distributor or CUSTOMER pursuant to
Section 6; or (ii) termination or expiration of the OEM License.
6. DEFAULT AND TERMINATION.
a. This Agreement shall terminate if any of the following events of
default occur: (i) if INSTALLER materially fails to perform or comply with any
provision of this Agreement; (ii) if INSTALLER makes Product(s) available
separately from CUSTOMER's Dedicated Systems; (iii) if INSTALLER manufactures,
installs or distributes any Microsoft Corporation software product(s) or
Product(s) which are not properly authorized under a valid agreement with
CUSTOMER; (iv) if INSTALLER becomes insolvent, enters bankruptcy,
reorganization, composition or other similar proceedings under applicable laws,
whether voluntary or involuntary, or admits in writing its inability to pay its
debts, or makes or attempts to make an assignment for the benefit of creditors;
or (v) upon notice from MS Distributor or MS to CUSTOMER that CUSTOMER shall
cease use of INSTALLER.
b. Termination resulting from default as outlined in this Section shall
be effective upon notice to INSTALLER, except that in the case of Section
6(a)(iv), termination shall be effective upon notice or as soon thereafter as is
permitted by applicable law.
7. OBLIGATIONS UPON TERMINATION. Within ten (10) days after the earlier of: (i)
termination or expiration of this Agreement; or (ii) notice to INSTALLER from
CUSTOMER or MS Distributor of termination or expiration of the OEM License,
INSTALLER shall return the installation "master" and any Product(s) in its
possession or under its control to CUSTOMER. From and after termination or
expiration, INSTALLER shall not use nor employ any Product(s) as part or portion
of any product that INSTALLER may use, sell, assign, lease, license or transfer
to third parties. INSTALLER shall cease and desist from all use of any
Product(s) name(s) and associated trademarks and, upon request, deliver to
CUSTOMER or its authorized representatives or destroy all material upon which
the Product(s) name(s) and the associated trademark(s) appear.
8. CONFIDENTIALITY. INSTALLER shall keep confidential the Product installation
tools and materials contained in the Product installation kit, the terms and
conditions of this Agreement, and other non-public information and know-how
disclosed to INSTALLER by CUSTOMER, and INSTALLER will make no use of such
materials, information and know-how except for INSTALLER's internal use in
accordance with the terms of this Agreement. INSTALLER may disclose the terms
and conditions of this Agreement in confidence to its immediate legal and
financial consultants as required in the ordinary course of INSTALLER's
business.
9. AUDITS.
a. During the term of this Agreement, INSTALLER agrees to keep all
usual and proper records and books of account and all usual and proper entries
relating to each Product installed.
b. CUSTOMER, MS Distributor or MS may audit the applicable INSTALLER
records and/or make an inspection of INSTALLER's facilities in order to verify
INSTALLER's compliance with the terms of this Agreement and to verify statements
issued by INSTALLER. Prompt adjustment shall be made to compensate for any
errors or omissions disclosed by such audit or inspection. Any such audit shall
be conducted by an independent certified public accountant selected by CUSTOMER,
MS Distributor or MS (other than on a contingent fee basis) and shall be
conducted during regular business hours at INSTALLER's offices and in such a
manner as not to interfere with INSTALLER's normal business activities. Any such
audit shall be paid for by the auditing party unless discrepancies are
disclosed.
c. Neither the right to examine and audit nor the right to receive
adjustment shall be affected by any statement to the contrary, appearing on
checks or otherwise, unless expressly agreed to in writing by the party having
such a right.
10. MS DISTRIBUTOR AS THIRD PARTY BENEFICIARY.
a. The parties agree that their respective promised performances under
this Agreement are intended for the benefit of MS and MS Distributor. For this
reason, the parties further agree that MS and/or MS Distributor has the right to
enforce the parties' performance of their respective obligations and duties
under this Agreement, and pursuant to such right, may xxx to enforce any claim
for breach of this Agreement.
b. MS and/or MS Distributor's right to enforce the obligations of a
party to this Agreement shall not be subject to any defenses that such party may
have against the party to whom performance is promised.
[CONFIDENTIAL]
56
11. NOTICES.
(a) All notices, authorizations, and requests in connection with this
Agreement shall be deemed given on the day they are (i) deposited in the U.S.A.
mails, postage prepaid, certified or registered, return receipt requested; or
(ii) sent by air express courier, charges prepaid; and addressed as stated below
(or to such other address as the party to receive the notice or request so
designates by written notice to the other).
INSTALLER: CUSTOMER:
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
Telephone: Telephone:
------------------- -------------------
Fax: Fax:
------------------------- -------------------------
(b) The work to be performed under this Agreement will take place at
INSTALLER'S premises located at:
---------------------------------------------
---------------------------------------------
---------------------------------------------
Telephone:
----------------------------------
Fax:
----------------------------------------
12. CONTROLLING LAW; ATTORNEYS' FEES.
a. This Agreement shall be construed and controlled by the laws of the
State of Washington, and with respect to any action brought by MS to enforce its
rights hereunder, CUSTOMER and INSTALLER further consent to venue and
jurisdiction in the state and federal courts sitting in the State of Washington.
With respect to any action brought by CUSTOMER or INSTALLER to enforce the terms
of this Agreement, CUSTOMER and INSTALLER further consent to venue and
jurisdiction in _______________ [state/country].
b. Process may be served on either party by U.S.A. mails, postage
prepaid, certified or registered, return receipt requested or sent by air
express courier, charges prepaid, as well as any other method or procedure
authorized by applicable law or court rule.
c. In the event that CUSTOMER or MS Distributor employs attorneys to
enforce any rights arising out of or relating to this Agreement, INSTALLER
agrees to pay such attorneys' fees.
13. EXPORT RESTRICTIONS. INSTALLER agrees that it will not export or re-export
SOFTWARE to any country, person, entity or end user subject to U.S. export
restrictions. INSTALLER specifically agrees not to export or re-export SOFTWARE
(i) to any country to which the U.S. has embargoed or restricted the export of
goods or services, which as of December 31, 1996 include, but are not
necessarily limited to, Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria,
or to any national of any such country who INSTALLER knows intends to transmit
or transport the products back to such country; (ii) to any end-user who
INSTALLER knows will utilize SOFTWARE in the design, development or production
of nuclear, chemical or biological weapons; or (iii) to any end-user who has
been prohibited from participating in U.S. export transactions by any federal
agency of the U.S. government.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above on their own behalf and for the benefit of MS Distributor. All
signed copies of this Agreement shall be deemed originals.
CUSTOMER: ___________________ INSTALLER: ___________________
_____________________________ ______________________________
By (Signature) By (Signature)
_____________________________ ______________________________
Name (Print) Name (Print)
_____________________________ ______________________________
Title Title
_____________________________ ______________________________
Date Date
CONFIDENTIAL
57
EXHIBIT A
OEM Customer Sublicense Agreement for Dedicated Systems
MS Distributor (COMPANY): ________________
CUSTOMER:____________________
Effective Date: _____________
58
EXHIBIT B
List of Products and Dedicated Systems
Product Name and Version Language Version(s) Dedicated Systems
_________________________ ____________________ __________________
_________________________ ____________________ __________________
_________________________ ____________________ __________________
_________________________ ____________________ __________________
_________________________ ____________________ __________________
_________________________ ____________________ __________________
59
AMENDMENT NUMBER 4
Amendment Date: July 15, 1999
To MICROSOFT SOFTWARE FOR DEDICATED SYSTEMS DISTRIBUTOR AGREEMENT
Between MICROSOFT LICENSING, INC., a Nevada, U.S.A. Corporation
And BSQUARE CORPORATION, A Corporation of Washington, U.S.A.
Agreement Effective Date: November 1st, 1997
MS LICENSE #7772-7310 (SAP: 5000020519)
Effective as of the Amendment Date indicated above, the below signed parties
agree that the indicated portions of the above referenced license agreement
(hereinafter the "License Agreement") are hereby amended by this instrument
(hereinafter the "Amendment"), as follows:
1. Exhibit C of the License Agreement is hereby amended and replaced with the
attached Exhibit C.
2. Exhibit U of the License Agreement is hereby amended and replaced with the
attached Exhibit U.
3. Exhibit V of the License Agreement is hereby amended and replaced with the
attached Exhibit V.
All capitalized terms used but not defined herein shall have the meanings
ascribed to them in the License Agreement. The terms of this Amendment shall
supersede any inconsistent terms contained in the License Agreement.
60
IN WITNESS WHEREOF, the parties have executed this Amendment in duplicate as of
the date first written above. All signed copies of this Amendment shall be
deemed originals. This Amendment is executed only in the English language.
MICROSOFT LICENSING, INC. BSQUARE CORPORATION
/s/ [ILLEGIBLE]
----------------------- ------------------------
By (Signature) By (Signature)
/s/ XXXXX X. XXXXXX
----------------------- ------------------------
Name (Printed) Name (Printed)
CFO
----------------------- ------------------------
Title Title
June 30, 1999
----------------------- ------------------------
Date Date
61
EXHIBIT C
WINDOWS CE PRODUCTS FOR DEDICATED SYSTEMS
LANGUAGE LICENSED FILES APPLICABLE LOCALIZATION
VERSION(S) (FOR KERNEL ADDITIONAL PER COPY ADDITIONAL
PRODUCT NAME AND VERSION ** VERSIONS ONLY) PROVISIONS ROYALTY* ROYALTY
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System for Dedicated EN (a),(b),(c),(d) US$ * US$ *
Systems version 2.11
Data Exchange Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System for Dedicated EN (a),(b),(c),(d) US$ * US$ *
Systems version 2.0 or 2.11
Full Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating
System for Dedicated EN (a),(b),(c),(d) US$ * US$ *
Systems version 2.0 or 2.11
Limited Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
Windows(R) CE Operating See Additional
System for Dedicated EN Provision (b) (a),(b),(c),(d) US$ * US$ *
Systems version 2.0 or 2.11 below
Kernel Version
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
* A PRODUCT IS NOT LICENSED HEREUNDER UNLESS ROYALTY RATE(S) ARE INDICATED IN
THE PRODUCT TABLE.
** LANGUAGE KEY: EN-ENGLISH, LOCALIZED VERSIONS ARE LICENSED ON AN IF AND AS
AVAILABLE BASIS.
ADDITIONAL PROVISIONS
(a) Notwithstanding anything to the contrary contained in the Agreement, there
are no Dedicated Product Deliverables for the product. COMPANY's OEM Customer
has obtained the Product as part of a Microsoft Windows CE Embedded Toolkit for
Visual C++ version 5.0 or as part of the Microsoft Windows CE Platform Builder
version 2.11 (hereinafter referred to collectively or separately as "Windows CE
Kit") in a separate transaction.
(b) COMPANY's license to grant rights as set forth in Section 2(iii) of the
Agreement to COMPANY's OEM Customers shall apply only to the licensed Product
Version (i.e., Data Exchange, Full, Limited, Kernel) indicated above; each
Product Version configuration is fully described in the Windows CE Kit
documentation. The Data Exchange Version license includes all components of the
Full Version and, in addition, the Desktop Software CD Rom disk (which includes
Windows CE Services) which COMPANY shall obtain from the Authorized Replicator.
(c) In order to support its OEM Customers, COMPANY agrees to enter into and
maintain, at COMPANY's expense, a valid Priority Support Agreement with MSCORP
at all times during the period COMPANY is licensed for this Product.
(d) Use of the Dedicated Systems logo(s) is optional; however, if OEM Customer
chooses to use the Dedicated Systems logo(s) with its Dedicated Systems, COMPANY
shall ensure that OEM Customer has executed the applicable logo license with
MSCORP prior to any marketing or distribution of a Dedicated System. COMPANY
hereby agrees to indemnify and defend MS and its Suppliers from and against all
damages, costs and expenses, including reasonable attorneys' fees, which MS or
its Suppliers may incur if the OEM Customer markets or distributes Dedicated
Systems in absence or breach of the applicable logo license.
------------
* Confidential treatment requested
62
EXHIBIT U
OEM CUSTOMER SUBLICENSE AGREEMENT
FOR DEDICATED SYSTEMS
This agreement ("Agreement") is made and entered into by and between you
("Customer"), and [ENTER NAME OF COMPANY] ("COMPANY"), and shall be effective
as of the date on which it is signed by COMPANY ("Effective Date"). Microsoft
Licensing, Inc., a Nevada, U.S.A. corporation ("MS") shall be a third party
beneficiary of this Agreement and shall be entitled to enforce the terms of
this Agreement as provided herein and such other rights and obligations herein
as necessary to protect MS' interests in the software program(s) and other
licensed product(s) identified in Attachment 2 to this Agreement ("SOFTWARE").
1. DEFINITIONS.
(a) "Dedicated Systems" means Customer's computer systems or computing devices
which: (a) are based on the Window CE operating system, (b) utilize a single
central processor unit, (c) are designed for use with a Dedicated Application
(defined below), (d) are marketed to one or more specific industries (and not
to general consumer or mass markets), and (e) shall not be useable as a
commercially viable substitute for computers or devices which perform general
purpose consumer computing functions.
(b) "Dedicated Application" means industry- or task-specific software programs
and/or functionality, not generally available to consumers, that (a) provide the
primary functionality of the Dedicated System, (b) are designed to meet the
functionality requirements of the specific industry into which the Dedicated
System is being marketed, and (c) offer significant functionality in addition to
the Product software.
(c) "Dedicated Product Deliverables" shall mean SOFTWARE in object code form,
installation utilities, adaptation code in source code form, if provided by
COMPANY, and other information or instructions regarding the SOFTWARE that
COMPANY or MS may provide.
(d) "XXXX" shall mean an end user license agreement for the SOFTWARE.
(e) "Recovery Media" shall mean a backup image of the SOFTWARE as originally
installed on the Dedicated System.
(f) "SOFTWARE Upgrade" shall mean a copy of the SOFTWARE to be distributed by
Customer directly to end users to replace an earlier version of the SOFTWARE
licensed to Customer under this Agreement.
(g) "Suppliers" shall mean any and all entities (including, without
limitation, Microsoft Corporation, a Washington, U.S.A. corporation) which
license or otherwise supply MS with Products or portions thereof for
redistribution or sublicense by MS.
2. LIMITED LICENSE GRANT.
Subject to the restrictions set forth in this Agreement, and Customer's
compliance with all terms and conditions of this Agreement, COMPANY grants to
Customer the following limited license rights:
(a)(i) to install as part of a Dedicated System, one (1) copy of the SOFTWARE in
nonvolatile, solid-state memory, on the hard disk drive, or in other
nonvolatile form, in accordance with the instructions, if any, contained in the
Dedicated Product Deliverables; and (ii) to distribute the SOFTWARE only as
part of a Dedicated System solely under Customer's brand names and trademarks.
(b) to configure the SOFTWARE in accordance with the instructions, if any,
contained in the Dedicated Product Deliverables solely to enable SOFTWARE
to execute on a Dedicated System.
(c) to reproduce and distribute with each Dedicated System distributed in
accordance with 2(a), not more than one (1) unit of Recovery Media provided
that:
(i) The images of the SOFTWARE on the Recovery Media shall be identical to
the object code that was originally installed on the Dedicated System.
Recovery Media may include non-MS products that Customer distributes
installed on the Dedicated System;
(ii) Recovery Media shall be maintained by the end user as an archival
copy and may only be licensed for use: (A) to restore the same version and
language release of the SOFTWARE as originally installed on a Dedicated
System or (B) to reinstall the same version and language release of the
SOFTWARE as originally installed on the Dedicated System after the
installation of an upgrade to the Dedicated Application on a Dedicated
System;
(iii) Recovery or reinstallation of the SOFTWARE shall be performed by an
authorized service representative of Customer or by the licensed end user;
(iv) Recovery Media may include a single copy of each of the following
files in order that the Recovery Media shall be "bootable": xxxxxxx.xxx,
xx.xxx, xxxxx.xxx, and for Dedicated Systems with Windows 95, drvspace.bin;
(v) A single unit of Recovery Media may be used by the licensed end user
or the Customer's authorized service representative to restore or
reinstall the SOFTWARE on such end user's additional units of the same
name and model Dedicated System which contain the same version and
language release of the SOFTWARE properly licensed to the end user
pursuant to this Agreement;
(vi) Recovery Media shall be clearly labeled "Recovery Media-for Backup or
Archival purposes only with [Name and Model of the Dedicated System]".
(d) to reproduce and distribute SOFTWARE Upgrades to an end user provided that:
(i) such end user is an existing, authorized end user of a Dedicated
System;
(ii) Customer shall acquire a serialized sticker from COMPANY, and
Customer shall pay the applicable SOFTWARE royalty fee as set forth in
Attachment 2 for each copy of SOFTWARE Upgrade installed by its end users
or service representatives pursuant to this Section 2(d);
(iii) SOFTWARE Upgrades shall be distributed directly by Customer,
separate from a Dedicated System, to an end-user for use solely as a
replacement copy for the SOFTWARE originally installed on the Dedicated
System pursuant to this Agreement;
(iv) the SOFTWARE Upgrade is configured to ensure that it executes solely
on the applicable Dedicated System and will not execute on general or
multi-purpose personal, laptop, desktop, handheld, notebook, server
computers or other such computing devices which address more than one
function of the office automation or consumer computing market;
(v) the SOFTWARE Upgrade is distributed as an integrated part of the
Dedicated Application;
(vi) Installation of the SOFTWARE Upgrade shall be performed by an
authorized service representative of
63
Customer or by the licensed end user;
(vii) A single unit of SOFTWARE Upgrade may be used by the licensed end user
or the Customer's authorized service representative to install the SOFTWARE
Upgrade on such end user's additional units of the same name and model
Dedicated System which contain the same version and language release of the
SOFTWARE;
(viii) Customer shall establish a reasonable procedure to assure the return
or destruction of any replaced SOFTWARE (for example, a SOFTWARE Upgrade that
erases or permanently disables the replaced SOFTWARE would satisfy this
requirement);
(ix) the SOFTWARE Upgrade shall be clearly labeled "For Upgrade purposes only
- not for use on a new Dedicated System. For Use Only with [Name and Model of
the Dedicated System]".
(e) Customer shall cause to appear in a conspicuous place in the Dedicated
System documentation to accompany each Dedicated System and each copy of
SOFTWARE Upgrade, the XXXX attached to this Agreement as Attachment 1, or such
other XXXX as COMPANY may provide from time to time. Customer shall adapt the
XXXX as necessary to comply with the laws of any jurisdiction in which the
SOFTWARE is distributed.
3. LICENSE RESTRICTIONS.
(a) The total number of units of the SOFTWARE (including any SOFTWARE Upgrades)
distributed by Customer shall not exceed the number of "Units of SOFTWARE
licensed" for such SOFTWARE as set forth in Attachment 2 hereto.
(b) Except as provided in Section 2(c)-(d), SOFTWARE may not be distributed in
whole or in part other than installed on the Dedicated System.
(c) Customer may not distribute any SOFTWARE documentation.
(d) Customer shall not use, copy, modify, or transfer the SOFTWARE or any copy
in whole or in part, except as expressly provided in this Agreement. Customer's
reproduction of the SOFTWARE in accordance with Section 2 shall be performed
only on Customer premises by Customer's regular employees except as otherwise
specifically approved in writing by MS.
(e) Customer shall not reverse engineer, decompile or disassemble any SOFTWARE
except as permitted by applicable law without the possibility of contractual
waiver. Customer acknowledges that information on interoperability of the
SOFTWARE with other products is readily available.
(f) All distribution and use of the SOFTWARE is by license only. Neither COMPANY
nor MS authorize the SOFTWARE to be "issued to the public", "put into
circulation", or subject to a "first sale" as the copyright laws may use those
(or similar) terms. Customer's license to distribute the SOFTWARE is limited to
distribution of the SOFTWARE by Customer to end users for use pursuant to a
XXXX.
(g) MS reserves all rights not expressly granted including, without limitation,
modification rights, translation rights, rental rights, and rights to source
code. MS expressly reserves its exclusive right under applicable copyright,
patent, and trademark laws to distribute copies of SOFTWARE by any means. Except
as set forth in Section 2(c)-(d) above, without limitation, neither COMPANY nor
MS authorizes Customer to distribute the SOFTWARE separately from Dedicated
Systems; any such unauthorized distribution by Customer shall constitute a
violation of this Agreement and MS' distribution right under applicable law.
Customer acknowledges that MS (and/or its Suppliers, if applicable) shall retain
all copyright, patent, moral, trademark, title and other proprietary and
intellectual property in the SOFTWARE, Dedicated Product Deliverables and
components thereof, in whole or in part in any form.
(h) Customer will not remove, modify, or obscure any copyright, trademark,
patent or other intellectual property notices included on the SOFTWARE or the
SOFTWARE Upgrade.
(i) Customer shall not advertise, publish or otherwise xxxx a separate price for
the SOFTWARE.
(j) Customer agrees to provide commercially reasonable end user support for the
SOFTWARE which, in any event, shall be under terms and conditions at least as
favorable to the end user as the terms under which Customer provides support for
Dedicated System(s) to end users generally. Customer agrees to provide COMPANY
and MS with ninety (90) days prior written notice of any substantive change in
Customer's support policy for the SOFTWARE.
4. LICENSE STICKER.
(a) For each unit of SOFTWARE distributed, Customer shall place a serialized
sticker supplied by COMPANY (i) on the hard drive containing the SOFTWARE, or if
the SOFTWARE is installed in nonvolatile, solid-state memory, (ii) on the
nonvolatile, solid-state memory or in a conspicuous place on the component board
to which the nonvolatile, solid-state memory is attached. If placement as
described in both (i) and (ii) are impractical, the label may be affixed to the
inside or outside of the rear panel of the Dedicated System casing.
(b) (i) Customer shall also place a serialized sticker supplied by COMPANY on
the media for each unit of SOFTWARE Upgrade distributed by Customer.
(ii) If one unit of the SOFTWARE Upgrade is used to install the SOFTWARE
Upgrade on additional units of the Dedicated System as set forth in Section
2(d)(vii), then, prior to distribution of the SOFTWARE Upgrade, Customer
shall (A) determine the number of units of SOFTWARE Upgrade to be
installed, (B) provide end user or Customer's authorized service
representative with a serialized sticker supplied by COMPANY for each such
unit, and (C) ensure that a serialized sticker is placed on each Dedicated
System on which SOFTWARE Upgrade is installed as described in Section 4(a).
5. DELIVERY.
For each SOFTWARE product licensed hereunder, COMPANY (or MS, on behalf of
COMPANY) shall deliver to Customer one (1) unit of Dedicated Product
Deliverables. Customer' acknowledges and agrees that neither COMPANY, nor MS and
its Suppliers, shall have any liability for failure to deliver Dedicated Product
Deliverables by any particular date, or if the SOFTWARE is not yet a released
product, during the term of this Agreement.
6. LIMITED WARRANTY AND CUSTOMER REMEDIES.
(a) COMPANY warrants that the SOFTWARE will perform substantially in accordance
with the accompanying written materials for a period of ninety (90) days from
the date of receipt.
(b) COMPANY's, MS', and their Suppliers' entire liability and Customer's
exclusive remedy for a breach of the warranty set forth above shall be, at
COMPANY's option, either (i) return of the price paid or (ii) repair or
replacement of the SOFTWARE that does not meet the above limited warranty and
which is returned to COMPANY. This limited warranty is void if failure of the
SOFTWARE has resulted from accident, abuse, or misapplication. Any replacement
SOFTWARE will be warranted for the remainder of the original warranty period or
thirty (30) days, whichever is longer.
(c) COMPANY, MS, AND THEIR SUPPLIERS DISCLAIM AND EXPRESSLY EXCLUDE ALL OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED,
64
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SOFTWARE AND ANY ACCOMPANYING WRITTEN MATERIALS.
(d) The rights and remedies granted to Customer under this Section 6 constitute
Customer's sole and exclusive remedy against the COMPANY, MS, their Suppliers,
and their officers, agents and employees for any and all claims arising in
connection with the SOFTWARE or the Dedicated Product Deliverables including,
but not limited to, claims regarding COMPANY's or MS' delivery of SOFTWARE or
Dedicated Product Deliverables, or indemnification or contribution from COMPANY,
MS or their Suppliers with respect to any infringement of the rights of a third
party, whether arising under statutory or common law or otherwise.
7. TERM AND TERMINATION.
(a) The term of this license shall run from the Effective Date until the earlier
of (i) one (1) year after Effective Date, or (ii) the date on which Customer has
distributed the number of units of SOFTWARE licensed under this Agreement as set
forth in Attachment 2 for each SOFTWARE.
(b) Termination due to breach of Sections 3(d), 3(e), 3(f), 10, or 11 shall be
effective upon notice to Customer. In all other cases, termination shall be
effective fifteen (15) days after notice of termination to the defaulting party
if the defaults have not been cured within such fifteen (15) day period. At the
option of the non-defaulting party, termination due to a breach of any provision
of this Agreement may be effective upon notice to the defaulting party if such
party has received two (2) or more previous notices of default during the term
of this Agreement (whether or not such previous defaults have been cured).
(c) Upon termination or expiration of the Agreement, Customer will immediately
cease all use and distribution of the SOFTWARE, the SOFTWARE product name, and
all associated trademarks). Within ten (10) days of the termination or
expiration of the Agreement, Customer shall return to COMPANY all Dedicated
Product Deliverables and serialized stickers for the SOFTWARE in Customer's
possession or under Customer's control. There shall be no refund or adjustment
for amounts paid for the Dedicated Product Deliverables or stickers returned to
COMPANY in accordance with this Section 7(c).
8. DISCLAIMER OF LIABILITY.
IN NO EVENT SHALL COMPANY, MS, OR THEIR SUPPLIERS BE LIABLE FOR ANY DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS,
CONSEQUENTIAL, INCIDENTAL, INDIRECT, ECONOMIC OR PUNITIVE DAMAGES, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT
OF THE MANUFACTURE, SALE, USE OF OR INABILITY TO MANUFACTURE, SELL OR USE THE
SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. TECHNICAL SUPPORT.
This Agreement does not include technical support from MS or its Suppliers.
Technical support, if any, for the SOFTWARE will be provided by COMPANY.
10. AUDITS AND INSPECTIONS.
(a) During the term of this Agreement and for three (3) years thereafter,
Customer agrees to keep all usual and proper records and books of account and
all usual and proper entries relating to each unit of SOFTWARE licensed
sufficient to substantiate the number of units of SOFTWARE and the number of
Dedicated Systems distributed by Customer.
(b) In order to verify statements issued by Customer and Customer's compliance
with the terms of this Agreement, COMPANY and/or MS may cause (i) an audit to be
made of Customer's books and records and/or (ii) an inspection to be made of
Customer's facilities and procedures. Any audit and/or inspection shall be
conducted during regular business hours at Customer's facilities, with or
without notice. Any audit shall be conducted by an independent certified public
accountant selected by MS or COMPANY (other than on a contingent fee basis).
(c) Customer agrees to provide any audit or inspection team(s) designated by MS
and/or COMPANY access to all relevant Customer records and facilities. Prompt
adjustment shall be made to compensate for any errors or omissions disclosed by
such audit. If material discrepancies are disclosed in such audit, Customer
agrees to pay MS or COMPANY, as applicable, for the costs associated with the
audit.
11. NONDISCLOSURE OBLIGATION.
Customer shall keep confidential the Dedicated Product Deliverables, any
SOFTWARE source code provided by COMPANY, MS or their Suppliers on behalf of
COMPANY, the terms and conditions of this Agreement, and other non-public
information and know-how disclosed to Customer by COMPANY, MS or their
Suppliers. Customer may disclose the terms and conditions of this Agreement in
confidence to its immediate legal and financial consultants as required in the
ordinary course of Customer's business. Customer's obligation under this Section
shall survive termination or expiration of this Agreement and shall extend until
such time as the information protected hereby is in the public domain.
12. GENERAL.
(a) This Agreement shall be construed and controlled by the laws of the State of
Washington, and Customer and COMPANY further consents to jurisdiction by the
state and federal courts sitting in the State of Washington. Process may be
served on either party by air express courier, (e.g. DHL, Airborne) charges
prepaid, return receipt requested. If COMPANY, MS or Customer employs attorneys
to enforce any rights arising out of or relating to this Agreement, the
prevailing party shall be entitled to recover reasonable attorney's fees.
(b) Customer agrees that it will not export or re-export SOFTWARE to any
country, person, entity or end user subject to U.S. export restrictions.
Customer specifically agrees not to export or re-export SOFTWARE (i) to any
country to which the U.S. has embargoed or restricted the export of goods or
services, which as of December 31, 1996 include, but are not necessarily limited
to, Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria, or to any national
of any such country who Customer knows intends to transmit or transport the
products back to such country; (ii) to any end-user who Customer knows will
utilize SOFTWARE in the design, development or production of nuclear, chemical
or biological weapons; or (iii) to any end-user who has been prohibited from
participating in U.S. export transactions by any federal agency of the U.S.
government.
(c) If any provision or portion of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions or portions shall remain in full force and effect.
(d) No waiver of any breach of any provision of this Agreement shall constitute
a waiver of any prior, concurrent, or subsequent breach of the same or any other
provisions hereof, and no waiver shall be effective unless made in writing and
signed by an authorized representative of the waiving party.
(e) Any assignment of this Agreement without prior written
65
consent of the non-assigning party shall be void.
(f) SOFTWARE may be imported, distributed, or sold in or to a country or
territory only if allowed by, and in compliance with, all applicable laws and
regulations of such country or territory as well as all terms and conditions of
this Agreement. Customer acknowledges that versions of certain SOFTWARE not
localized for a specific market may be prohibited or subject to import and
distribution procedures or restrictions under such laws and regulations. By way
of example only, as of July 1, 1997, the U.S.A. English version of Microsoft
Excel 97 cannot be distributed to or for use in India, and games, entertainment
products and products with substantial amounts of video, graphics or similar
content may be prohibited or subject to specific import procedures under laws of
the People's Republic of China. Customer agrees to indemnify COMPANY, MS and
their Suppliers from and against all damages, costs and expenses (including
reasonable attorneys' fees) incurred by COMPANY, or MS or their Suppliers in
connection with any and all claims, demands or actions arising from Customer's
importation or distribution of SOFTWARE in or to a country or territory not in
compliance with the laws and regulations of such country or territory.
(g) Any SOFTWARE which Customer distributes or licenses to or on behalf of the
United States of America, its agencies and/or instrumentalities (the
"Government"), shall be provided with RESTRICTED RIGHTS in accordance with DFARS
252.2277013(c)1(ii), or as set forth in the particular department or agency
regulations or rules, or particular contract which provide MS and its Suppliers
equivalent or greater protection.
Should Customer have any questions concerning this Agreement, please write:
--------------------------------------
Name of COMPANY
--------------------------------------
Address
--------------------------------------
--------------------------------------
66
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives as of the date set forth above. All signed copies of
this Agreement shall be deemed originals. Each individual signing on behalf of
Customer below hereby represents and warrants that he or she has full authority
to sign this Agreement and bind Customer to perform all duties and obligations
contemplated by this Agreement. If COMPANY or Customer is located in a
jurisdiction in which a corporate seal or "chop" is commonly used as an
instrument of agreement execution, in addition to the individual signature
provided below, COMPANY's and/or Customer's seal or "chop" should be entered
below the appropriate signature block.
COMPANY CUSTOMER
_________________________ ___________________________
By (Signature) By (Signature)
_________________________ ___________________________
Name (Print) Name (Print)
_________________________ ___________________________
Title Title
_________________________ ___________________________
Date Date
_________________________
COMPANY's seal or "chop"
_________________________
_________________________
CUSTOMER's seal or "chop"
_________________________
67
ATTACHMENT 1
TO OEM CUSTOMER SUBLICENSE AGREEMENT FOR DEDICATED SYSTEMS
END-USER LICENSE AGREEMENT FOR MICROSOFT SOFTWARE
IMPORTANT--READ CAREFULLY: THIS END-USER LICENSE AGREEMENT ("XXXX") IS A LEGAL
AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND THE
MANUFACTURER ("MANUFACTURER") OF THE SPECIAL PURPOSE COMPUTING DEVICE ("SYSTEM")
YOU ACQUIRED WHICH INCLUDES CERTAIN MICROSOFT SOFTWARE PRODUCT(S) INSTALLED ON
THE SYSTEM ("SOFTWARE PRODUCT" OR "SOFTWARE"). THE SOFTWARE INCLUDES COMPUTER
SOFTWARE, THE ASSOCIATED MEDIA (INCLUDING RECOVERY MEDIA), ANY PRINTED
MATERIALS, AND ANY "ONLINE" OR ELECTRONIC DOCUMENTATION. ANY SOFTWARE PROVIDED
ALONG WITH THE SOFTWARE THAT IS ASSOCIATED WITH A SEPARATE END-USER LICENSE
AGREEMENT IS LICENSED TO YOU UNDER THE TERMS OF THAT LICENSE AGREEMENT. BY
INSTALLING, COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE SOFTWARE, YOU
AGREE TO BE BOUND BY THE TERMS OF THIS XXXX. IF YOU DO NOT AGREE TO THE TERMS OF
THIS XXXX, MANUFACTURER AND MICROSOFT LICENSING, INC. ("MS") ARE UNWILLING TO
LICENSE THE SOFTWARE TO YOU. IN SUCH EVENT, YOU MAY NOT USE OR COPY THE
SOFTWARE, AND YOU SHOULD PROMPTLY CONTACT MANUFACTURER FOR INSTRUCTIONS ON
RETURN OF THE UNUSED PRODUCT(S) FOR A REFUND.
------------------------------------------------------------------------------
SOFTWARE LICENSE
The SOFTWARE is protected by copyright laws and international treaties, as well
as other intellectual property laws and treaties. The SOFTWARE is licensed, not
sold.
1. GRANT OF LICENSE. This XXXX grants you the following rights:
- SOFTWARE. SOFTWARE includes software already installed on the SYSTEM
("SYSTEM Software") and, if included in the SYSTEM package, software
contained on the CD-ROM disk labeled "Desktop Software for Microsoft
Windows CE" ("Desktop Software").
- SYSTEM SOFTWARE. You may use SYSTEM Software only as installed in the
SYSTEM.
- DESKTOP SOFTWARE. If Desktop Software is included with your SYSTEM,
you may install and use the component(s) of the Desktop Software in
accordance with the terms of the end user license agreement provided
with such component(s). If no separate end user license agreement is
provided, you may install and use only one (1) copy of such
component(s) on a single computer with which you use the SYSTEM.
- BACK-UP COPY. If MANUFACTURER has not included a copy of the SOFTWARE
on separate media with the SYSTEM, you may make a single copy of the
SOFTWARE for use solely for archival purposes with the SYSTEM.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
- LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You
may not reverse engineer, decompile, or dissemble the SOFTWARE, except
and only to the extent that such activity is expressly permitted by
applicable law notwithstanding this limitation.
- SINGLE SYSTEM. The SOFTWARE is licensed with the SYSTEM as a single
integrated product. The SOFTWARE may only be used with the SYSTEM.
- RENTAL. You may not rent or lease the SOFTWARE.
- SOFTWARE TRANSFER. You may permanently transfer all of your rights
under this XXXX only as part of a sale or transfer of the SYSTEM,
provided you retain no copies, you transfer all of the SOFTWARE
(including all component parts, the media, any upgrades or backup
copies, and this XXXX, and if applicable, the Certificate(s) of
Authenticity), AND the recipient agrees to the terms of this XXXX. If
the SOFTWARE is an upgrade, any transfer must include all prior
versions of the SOFTWARE.
- TERMINATION. Without prejudice to any other rights, Manufacturer or MS
may terminate this XXXX if you fail to comply with the terms and
conditions of this XXXX. In such event, you must destroy all copies of
the SOFTWARE and all of its component parts.
- SINGLE XXXX. The package for the SOFTWARE may contain multiple
versions of this XXXX, such as multiple translations and/or multiple
media versions (e.g., in the user documentation and in the software).
In this case, you are only licensed to use one (1) copy of the
SOFTWARE PRODUCT.
- EXPORT RESTRICTIONS. You agree that you will not export or re-export
the SOFTWARE to any country, person, entity or end user subject to
U.S. export restrictions. You specifically agree not to export or
re-export the SOFTWARE (i) to any country to which the U.S. has
embargoed or restricted the export of goods or services, which
currently include, but are not necessarily limited to Cuba, Iran,
Iraq, Libya, North Korea, Sudan and Syria, or to any national of any
such country, wherever located, who intends to transmit or transport
the products back to such country; (ii) to an end user you know or
have reason to know will utilize the SOFTWARE in the design,
development or production or nuclear, chemical or biological weapons;
or (iii) to any end-user who has been prohibited from participating in
U.S. export transactions by any federal agency of the U.S. government.
68
ATTACHMENT 1
(continued)
3. UPGRADES AND RECOVERY MEDIA.
- If the SOFTWARE is provided by Manufacturer on media separate from the
SYSTEM and is labeled "For Upgrade Purposes Only" (Upgrade SOFTWARE),
you may install one copy of the Upgrade SOFTWARE onto the SYSTEM as a
replacement copy for the SOFTWARE originally installed on the SYSTEM
and use it in accordance with Section 1 of this XXXX. You may also
install additional copies of the Upgrade SOFTWARE as replacement
copies onto additional SYSTEMS which are the same brand and model as
the SYSTEM and contain a duly licensed copy of the same version and
language release of the SOFTWARE ("ADDITIONAL SYSTEMS"), provided that
(1) Manufacturer has supplied a corresponding serialized sticker for
each additional copy of the Upgrade SOFTWARE, and (2) you affix a
serialized sticker per Manufacturer's instructions for each unit of
Upgrade SOFTWARE you install.
- If the SOFTWARE is provided by Manufacturer on separate media and
labeled as "Recovery Media" ("Recovery Media"), you may not make a
copy of the SOFTWARE as described in Section 1 for archival purposes.
Instead, you may use the Recovery Media solely to restor or reinstall
the same version and language release of the SOFTWARE as originally
installed on the SYSTEM and thereafter use the SOFTWARE as restored or
reinstalled in accordance with Section 1 of this XXXX. A single unit
of Recovery Media may be used by you to restore or reinstall the
SOFTWARE on ADDITIONAL SYSTEMS.
4. NOTE ON COMPATIBILITY OF DESKTOP SOFTWARE. THIS XXXX IS FOR A SPECIAL
PURPOSE COMPUTING DEVICE. THE ONLY WARRANTIES ARE THOSE PROVIDED BY
MANUFACTURER IN THE LIMITED WARRANTY SECTION SET FORTH BELOW.
NOTWITHSTANDING ANY ONLINE "HELP" FILES OR OTHER ONLINE INFORMATION
DISPLAYED BY THE DESKTOP SOFTWARE, NEITHER MS NOR ITS SUPPLIERS (INCLUDING
MICROSOFT CORPORATION) REPRESENTS OR MAKES ANY WARRANTY THAT THE DESKTOP
SOFTWARE WILL OPERATE IN A SPECIFIC MANNER OR OPERATE WITH ANY COMPUTER OR
COMPUTING DEVICE, WHETHER OR NOT SUCH COMPUTER(S) OR COMPUTING DEVICE(S)
CONTAIN MICROSOFT WINDOWS OPERATING SYSTEM SOFTWARE OR MICROSOFT WINDOWS CE
OPERATING SYSTEM SOFTWARE MANUFACTURER'S WARRANTIES ARE EXPRESSLY LIMITED
TO THOSE SET FORTH IN THE LIMITED WARRANTY SECTION BELOW.
5. COPYRIGHT. All title and copyrights in and to the SOFTWARE (including but
not limited to any images, photographs, animations, video, audio, music,
text and "applets," incorporated into the SOFTWARE), the accompanying
printed materials, and any copies of the SOFTWARE, are owned by MS or its
suppliers (including Microsoft Corporation). You may not copy the printed
materials accompanying the SOFTWARE. All rights not specifically granted
under this XXXX are reserved by MS and its suppliers (including Microsoft
Corporation).
6. PRODUCT SUPPORT. Product support for the SOFTWARE is not provided by MS,
its parent corporation, Microsoft Corporation, or their affiliates or
subsidiaries. For product support, please refer to Manufacturer's support
number provided in the documentation for the SYSTEM. Should you have any
questions concerning this XXXX, or if you desire to contact Manufacturer
for any other reason, please refer to the address provided in the
documentation for the SYSTEM.
7. LIMITED WARRANTY.
- LIMITED WARRANTY. Manufacturer warrants that the SOFTWARE will perform
substantially in accordance with the accompanying written materials
for a period of ninety (90) days from the date of receipt. Any implied
warranties on the SOFTWARE are limited to ninety (90) days. Some
states/jurisdictions do not allow limitations on duration of an
implied warranty, so the above limitation may not apply to you.
- CUSTOMER REMEDIES. Manufacturer's and its suppliers' entire liability
and your exclusive remedy shall be, at Manufacturer's option, either
(a) return of the price paid, or (b) repair or replacement of the
SOFTWARE that does not meet the above Limited Warranty and which is
returned to Manufacturer with a copy of your receipt. This Limited
Warranty is void if failure of the SOFTWARE has resulted from
accident, abuse, or misapplication. Any replacement SOFTWARE will be
warranted for the remainder of the original warranty period or thirty
(30) days, whichever is longer.
- NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED
WARRANTY SECTION ABOVE, THE SOFTWARE IS PROVIDED TO THE END USER "AS
IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE
RISK OF THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU.
- NO LIABILITY FOR CONSEQUENTIAL DAMAGES. MANUFACTURER OR MANUFACTURER'S
SUPPLIERS, INCLUDING MS AND ITS SUPPLIERS, SHALL NOT BE HELD TO ANY
LIABILITY FOR ANY DAMAGES SUFFERED OR INCURRED BY THE END USER
(INCLUDING, BUT NOT LIMITED TO, GENERAL, SPECIAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE),
ARISING FROM OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF
THE SOFTWARE.
8. NOTE ON JAVA SUPPORT. THE SOFTWARE PRODUCT MAY CONTAIN SUPPORT FOR PROGRAMS
WRITTEN IN JAVA. JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED,
MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE
OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION
SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS
SYSTEMS, IN WHICH THE FAILURE OF JAVA TECHNOLOGY COULD LEAD DIRECTLY TO
DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. SUN
MICROSYSTEMS, INC. HAS CONTRACTUALLY OBLIGATED MICROSOFT CORPORATION TO
MAKE THIS DISCLAIMER.
69
ATTACHMENT 1
(continued)
_______________________________________________________________________________
If you acquired this XXXX in the United States, this XXXX is governed by the
laws of the State of Washington.
If you acquired this XXXX in the Canada, this XXXX is governed by the laws of
the Province of Ontario, Canada. Each of the parties hereto irrevocably attorns
to the jurisdiction of the courts of the Province of Ontario and further agrees
to commence any litigation which may arise hereunder in the courts located in
the Judicial District of York, Province of Ontario.
If this XXXX was acquired outside the United States, then local law may apply.
Should you have any questions concerning this XXXX, please contact the
Manufacturer.
_______________________________________________________________________________
U.S. GOVERNMENT RESTRICTED RIGHTS
The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. Use,
duplication, or disclosure by the Government is subject to restrictions as set
forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the
Commercial Computer Software -- Restricted Rights at 48 CFR 52.227-19, as
possible. Manufacturer is Microsoft Corporation/One Microsoft Xxx/Xxxxxxx, XX
00000-0000.
70
ATTACHMENT 2
TO OEM CUSTOMER SUBLICENSE AGREEMENT FOR DEDICATED SYSTEMS
WINDOWS CE SOFTWARE PRODUCTS FOR DEDICATED SYSTEMS
Units of Language Licensed Files Applicable Localization
SOFTWARE Versions(2) (for Kernel Additional Per copy Additional
Product Name and Version licensed ** Versions Only) Provisions Royalty* Royalty
-------------------------- -------- ------------ ------------------- ---------------- -------------- -------------------
2. Windows(R) CE Operating (a), (b), (c)
System version 2.11 -- EN (d), (e), (f) US$___ US$___
Data Exchange Version
-------------------------- ---------- ------------ ------------------- ---------------- --------------- -------------------
-------------------------- ---------- ------------ ------------------- ---------------- --------------- -------------------
2. Windows(R) CE Operating
System for Dedicated -- EN (a), (b), (c) US$___ US$___
Systems version 2.0 or (d), (e)
2.11 Full Version
-------------------------- ---------- ------------ ------------------- ---------------- --------------- -------------------
-------------------------- ---------- ------------ ------------------- ---------------- --------------- -------------------
3. Windows(R) CE Operating
System for Dedicated -- EN (a), (b), (c) US$___ US$___
Systems version 2.0 or (d), (e)
2.11 Limited Version
-------------------------- ---------- ------------ ------------------- ---------------- --------------- -------------------
-------------------------- ---------- ------------ ------------------- ---------------- --------------- -------------------
4. Windows(R) CE Operating
System for Dedicated -- EN See Additional (a), (b), (c) US$___ US$___
Systems version 2.0 or Provision (b) (d), (e)
2.11 Kernel Version below
-------------------------- ---------- ------------ ------------------- ---------------- --------------- -------------------
* IF ROYALTY RATE AND UNITS OF SOFTWARE ARE NOT SPECIFIED FOR A PARTICULAR
PRODUCT, THEN SUCH PRODUCT IS NOT LICENSED UNDER THIS AGREEMENT.
** LANGUAGE KEY: EN = ENGLISH, LOCALIZED VERSIONS ARE LICENSED ON AN IF AND AS
AVAILABLE BASIS.
ADDITIONAL PROVISIONS
(a) (i) Notwithstanding anything to the contrary contained in the Agreement,
there are no Dedicated Product Deliverables for the SOFTWARE Customer has
obtained the SOFTWARE as part of a Microsoft Windows CE Embedded Toolkit for
Visual C++ version 5.0 or Microsoft Windows CE Platform Builder version 2.11,
(hereinafter referred to collectively or separately as "Windows CE Kit"), in a
separate transaction.
(ii) Notwithstanding anything to the contrary contained in Section 6 of the
Agreement, no warranties for the SOFTWARE are provided in the Agreement. The
warranties, if any, contained in the Windows CE Kit are the only warranties
provided for the SOFTWARE.
(b) Customer's license rights to reproduce, install, and distribute the
SOFTWARE granted in Section 2 of the Agreement shall apply only to the licensed
Product Version (i.e., Data Exchange, Full, Limited, Kernel) indicated above;
each Product Version configuration is fully described in the Windows CE Kit
documentation. The Data Exchange Version configuration includes all components
of the Full Version and, in addition, the Desktop Software CD ROM disk (which
includes Windows CE Services) which Customer shall obtain from COMPANY.
(c) Dedicated Systems shall be distributed only through such channels as may
be customary for similar devices for the specific referenced industry and the
specific industry application.
(d) (i) Customer will not remove or obscure any copyright, trademark or patent
notices that appear in the SOFTWARE as delivered to Customer.
(ii) If an end user of the Dedicated System shall have access to the
command line (for example, the C:\prompt) of the SOFTWARE, then COMPANY shall
cause to appear on the display screen as part of the sign-on message for each
unit of SOFTWARE in copyright notices specified in the Windows CE Kit.
71
ATTACHMENT 2
(Continued)
(e) Use of the Dedicated System logo(s), as designated by MS from time to time,
is optional. If Customer chooses to use the Dedicated Systems logo(s) on its
Dedicated Systems distributed with the SOFTWARE, COMPANY shall use the Dedicated
Systems logo(s) in accordance with the applicable logo license(s), which are
available through separate agreement(s) with Microsoft Corporation. To obtain
additional information regarding the Microsoft Corporation logo license(s),
Customer should contact COMPANY.
(f) If Customer licenses the Data Exchange Version of the SOFTWARE, Customer:
(A) shall obtain the Desktop Software from COMPANY for distribution to
the end user;
(B) shall distribute one (1) unit of the Desktop Software in the form and
packaging as available from COMPANY;
(C) shall distribute the Desktop Software only in the Dedicated System
packaging;
(D) shall display a prominent notice to end users regarding the Desktop
Software components that Customer has enabled to function with the Dedicated
System; if Customer has not enabled all components of the Desktop Software
to function with the Dedicated System, Customer shall advise its end users
accordingly; and
(E) shall conduct its own testing of the Desktop Software with its
Dedicated Systems to Customer's own satisfaction; Customer hereby confirms its
understanding that neither COMPANY nor MS has conducted tests or quality
reviews to ensure that the Desktop Software will function as set forth in the
Desktop Software display information, online HELP files, or otherwise, when
utilized in conjunction with the Dedicated System.
DEDICATED SYSTEMS
Customer's Dedicated Systems for Product described in this Attachment 2 shall
be limited to Customer's current and future Dedicated Systems described below.
Each listed Dedicated System must have a unique model line name, model name, or
model number which Customer uses both internally (in Customer's books and
records) and externally (on the Dedicated System case and packaging). New
models may be added by agreement of the parties.
At Customer's option, for purposes of administrative convenience, Customer may
designate models by model line or series, e.g., "Jaguar model line", "Jaguar
Pro series", "Jaguar Pro 750 model line", "Jaguar Pro 950 series ", etc.)."
Dedicated Systems defined by model line or series shall include all present
models which include the designated model line or series name, (e.g., "Jaguar
Pro model line" includes Jaguar Pro, Jaguar Pro 950, Jaguar Pro S, etc.; "Jaguar
series" includes Jaguar, Jaguar Pro, Jaguar Pro 950, Jaguar S400, etc.; "Jaguar
Pro 950 series" includes Jaguar Pro 950, Jaguar Pro 955, etc.).
PRODUCT NUMBER KEY:: 1 = Windows(R) CE Operating System for Dedicated System
version 2.11, Data Exchange Version; 2 = Windows(R) CE Operating System for
Dedicated Systems version 2.0 or 2.11, Full Version; 3 = Windows(R) CE
Operating System for Dedicated Systems version 2.0 or 2.11, Limited Version 4 =
Windows(R) CE Operating System for Dedicated Systems version 2.0 or 2.11,
Kernel Version.
ROYALTY BASIS KEY: C = per copy; if Product box is blank, such Product is not
licensed for distribution with the listed Dedicated System.
-----------------------------------------------------------------------------------------------------------------
PRODUCT NUMBER
MODEL NAME OR MODEL NUMBER SPECIFIC
INDUSTRY
APPLICATION 1 2 3 4 5 6 7 8 9 10
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
72
EXHIBIT V
LICENSE OF ADDITIONAL PRODUCT SOFTWARE UNITS
AMENDMENT NUMBER ____
Amendment Date:________
to OEM CUSTOMER SUBLICENSE AGREEMENT FOR DEDICATED SYSTEMS
between ______________________, a Corporation of __________________
and _________________, a Corporation of ____________________
Agreement Effective Date:_________________
WHEREAS, Customer has licensed a certain number of units of Product
Software (the "SOFTWARE") from COMPANY under the terms of the above referenced
license agreement (the "Agreement");
WHEREAS, Customer now desires to license additional units of SOFTWARE from
COMPANY as described in the Additional Units Attachment dated ________, 199__,
which is attached to this Amendment;
NOW, THEREFORE, Customer and COMPANY hereby agree:
1. Effective as of the date indicated on the Additional Units Attachment, such
Additional Units Attachment is hereby added to the Agreement and sets forth the
number of additional units of the SOFTWARE and the language version(s) licensed
to Customer under the terms and conditions of the Agreement.
2. Customer may license additional SOFTWARE on the Additional Units Attachment
only for the SOFTWARE and the language version(s) that are currently licensed by
Customer and COMPANY. In order to license SOFTWARE or language version(s) not
currently licensed under the Agreement with COMPANY, Customer shall execute a
new OEM Customer Sublicense Agreement for Dedicated Systems which includes such
SOFTWARE and/or language version(s).
3. All capitalized terms used but not defined herein shall have the meaning
ascribed to them in the Agreement. The terms of this Amendment shall supersede
any inconsistent terms contained in the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment by their duly
authorized representatives as of the date set forth above. All signed copies of
this Amendment shall be deemed originals. Each individual signing on behalf of
Customer below hereby represents and warrants that he or she has full authority
to sign this Agreement and bind Customer to perform all duties and obligations
contemplated by this Amendment. If Customer is located in a jurisdiction in
which a corporate seal or "chop" is commonly used as an instrument of agreement
execution, in addition to the individual signature provided below, Customer's
seal or "chop" should be entered below Customer's signature block. This
Amendment is executed only in the English language.
----------------------------------- ---------------------------------
(Name of COMPANY) (Name of Customer)
----------------------------------- ---------------------------------
By (Signature) By (Signature)
----------------------------------- ---------------------------------
Name (Print) Name (Print)
----------------------------------- ---------------------------------
Title Title
----------------------------------- ---------------------------------
Date Date
-----------------------------
Customer's seal or "chop"
-----------------------------
73
ADDITIONAL UNITS ATTACHMENT
Dated: __________________
PRODUCT NAME AND VERSION ADDITIONAL UNITS OF SOFTWARE LICENSED LANGUAGE VERSION
--------------------------------------------------------------------------------------------------------------------------------
Windows(R) CE Operating System Version 2.11 __________
Date Exchange Version
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
Windows(R) CE Operating System Version 2.0 or
2.11 __________
Full Version
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
Windows(R) CE Operating System Version 2.0 or
2.11 __________
Limited Version
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
Windows(R) CE Operating System Version 2.0 or
2.11 __________
Kernel Version
--------------------------------------------------------------------------------------------------------------------------------
74
AMENDMENT NUMBER 5
Amendment Date: July 15th, 1999
To MICROSOFT SOFTWARE FOR DEDICATED SYSTEMS DISTRIBUTOR AGREEMENT
Between MICROSOFT LICENSING, INC., a Nevada, U.S.A. Corporation
And BSQUARE CORPORATION, A Corporation of Washington, U.S.A.
Agreement Effective Date: November 1st, 1997
MS LICENSE #5000020519
Effective as of the Amendment Date indicated above, the below signed parties
agree that the indicated portions of the above referenced license agreement
(hereinafter the "License Agreement") are hereby amended by this instrument
(hereinafter the "Amendment"), as follows
1. The attached Exhibit C3 is hereby amended and replaced with the attached
Exhibit C3.
2. The attached Exhibit U, Attachment 2A is hereby amended and replaced with
the attached Xxxxxxx X, Xxxxxxxxxx 0X.
3. The attached Exhibit V3 is hereby amended and replaced with the attached
Exhibit V3.
All capitalized terms used but not defined herein shall have the meanings
ascribed to them in the License Agreement. The terms of this Amendment shall
supersede any inconsistent terms contained in the License Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment in duplicate as of
the date first written above. All signed copies of this Amendment shall be
deemed originals. This Amendment is executed only in the English language.
MICROSOFT LICENSING, INC. BSQUARE CORPORATION
/s/ XXXXX X. XXXXXX
----------------------------- --------------------------------
By (Signature) By (Signature)
Xxxxx X. Xxxxxx
----------------------------- --------------------------------
Name (Printed) Name (Printed)
CFC
----------------------------- --------------------------------
Title Title
7/16/99
----------------------------- --------------------------------
Date Date
75
EXHIBIT C3
WINDOWS CE PRODUCTS FOR WINDOWS-BASED TERMINAL DEVICES
PRODUCT NAME AND LANGUAGE APPLICABLE PER COPY LOCALIZATION
VERSION VERSION(S) ADDITIONAL ROYALTY ADDITIONAL
** PROVISIONS * ROYALTY
1. Microsoft(R)
Windows(R) CE EN (a),(b),(c), US$ * US$ *
Operating System (d),(e),(f),(g),
for Windows(R) - (h)
Based Terminal
devices version 1.0
* A PRODUCT IS NOT LICENSED HEREUNDER UNLESS ROYALTY RATE(S) ARE INDICATED
IN THE PRODUCT TABLE.
** LANGUAGE KEY: EN = ENGLISH
ADDITIONAL PROVISIONS KEY
(a) In addition to the Dedicated Product Deliverables for this Product, COMPANY
shall require OEM Customer to:
(i) obtain in a separate transaction the Microsoft Windows CE Embedded
Toolkit for Visual C++ version 5.0, which includes the Windows CE 2.1
Enhancement Pack for the Embedded Tool Kit ("ETK") or the Microsoft Windows CE
Platform Builder version 2.11 ("Platform Builder") hereinafter referred to
collectively or separately as "Windows CE Kit"; and
(ii) use the Windows CE Kit in accordance with the accompanying
instructions to implement the Product on OEM Customer's Dedicated Systems.
(b) COMPANY's rights granted hereunder to sublicense the Product to OEM Customer
shall apply only to the Full Operating System configuration which is described
in the Windows CE Kit documentation.
(c) Except as set forth in Exhibit W of the OEM Customer Sublicense Agreement,
OEM Customer may distribute Product(s) only with Dedicated Systems which are
marketed and distributed exclusively under OEM Customer's or OEM Customer's
subsidiaries' brand names, trade names and trademarks. The Product(s) may not be
distributed with Dedicated Systems which are marketed or distributed under any
name which includes any third party brand names, trade names or trademarks. If,
at any time, MS becomes aware of any violation of the foregoing, then without
limiting its remedies, MS may charge COMPANY for each such Dedicated System an
additional royalty equal to thirty percent (30%) of the highest royalty for the
Product(s). COMPANY shall pay such additional royalty within thirty (30) days of
receipt of MS' invoice.
(d) COMPANY shall ensure that OEM Customer has executed the applicable logo
license with MSCORP prior to any marketing or distribution of a Dedicated
System. COMPANY hereby agrees to indemnify and defend MS and its Suppliers from
and against all damages, costs and expenses, including reasonable attorneys'
fees, which MS or its Suppliers may incur if the OEM Customer markets or
distributes Dedicated Systems without executing, or in breach of, the applicable
logo license.
(e) "MSCORP Compatibility Test" shall mean MSCORP's then-standard suite of tests
conducted by or for MSCORP to determine whether OEM Customer's Dedicated System
is compliant with the MSCORP testing and compatibility requirements for the
Product. COMPANY shall require of OEM Customer that the Dedicated Systems pass
the MSCORP Compatibility Test and display the Product logo(s), as designated by
MS from time to time, on Dedicated Systems distributed with the Product. Such
logo use shall be in accordance with the applicable logo license which is
available through a separate written agreement with MSCORP. To obtain additional
information regarding the MSCORP Compatibility Test and the MSCORP logo
agreement, COMPANY should contact the Account Manager assigned to COMPANY.
(f) Notwithstanding anything to the contrary in section 1(d) of the Agreement,
"Dedicated System" shall mean OEM Customer's computer systems that (1) comply
with the MSCORP system specifications for Windows-Based Terminal devices; and
(2) provide the end user with the ability to utilize the Microsoft Remote
Desktop Protocol software to connect to the server.
------------
* Confidential treatment requested
76
EXHIBIT U
ATTACHMENT 2A
TO OEM CUSTOMER SUBLICENSE AGREEMENT FOR DEDICATED SYSTEMS
WINDOWS CE PRODUCTS FOR WINDOWS-BASED TERMINAL DEVICES
Units of Language Applicable Localization
SOFTWARE Version(s) Additional Per copy Additional
Product Name and Version licensed ** Provisions Royalty* Royalty
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
1. Microsoft(R)
Windows(R) CE Operating (a),(b),(c),(d)
System for Windows(R)- EN (e),(f),(g), US$________ US$________
Based Terminal devices (h),(i)
version 1.0
-------------------------------- ------------------ ----------------------- ------------------ ---------------- -------------------
* IF ROYALTY RATE AND UNITS OF SOFTWARE ARE NOT SPECIFIED FOR A PARTICULAR
PRODUCT, THEN SUCH PRODUCT IS NOT LICENSED UNDER THIS AGREEMENT.
** LANGUAGE KEY: EN=ENGLISH
ADDITIONAL PROVISIONS KEY
(a)(1) In addition to the Dedicated Product Deliverables for this SOFTWARE
which are provided by COMPANY under this Agreement, Customer shall obtain in a
separate transaction the Microsoft Windows CE Embedded Toolkit for Visual C++
version 5.0, which includes the Windows CE 2.1 Enhancement Pack for the Embedded
Tool Kit ("Embedded Toolkit") or the Microsoft Windows CE Platform Builder
version 2.11 ("Platform Builder"), hereinafter referred to collectively or
separately as "Windows CE Kit".
(2) Customer shall use the Embedded Toolkit in accordance with its
instructions to implement version 1.0 of the SOFTWARE on Dedicated Systems.
(3) Customer shall use the Platform Builder in accordance with its
instructions to implement version 1.1 of the SOFTWARE on Dedicated Systems.
(4) Notwithstanding anything to the contrary contained in Section 6 of the
Agreement, no warranties for the Windows CE Kit are provided in the Agreement.
The warranties, if any, contained in the Windows CE Kit are the only warranties
provided for the Windows CE Kit.
(b) With respect to the SOFTWARE, Customer's distribution license granted
hereunder shall apply only to the Full Operating System configuration which is
described in the Windows CE Kit documentation.
(c)(1) Notwithstanding anything to the contrary contained in Exhibit S to this
Attachment 2A, Section (b) of Exhibit S does not apply to the Dedicated Product
Deliverables.
(2) Notwithstanding anything to the contrary contained in this Agreement,
including the Exhibits attached hereto, Exhibit S does not apply to the Windows
CE Kit.
(d)(1) Customer is not licensed to, and agrees that it will not, modify, in any
way, or delete any aspect of the SOFTWARE (including, without limitation, any
features, shortcuts, icons, "wizards", folders (including sub-folders) or
programs of SOFTWARE) as delivered by COMPANY in the Dedicated Product
Deliverables, except if and as specifically permitted below or in the OEM
Adaptation Kit ("OAK") provided in the Dedicated Product Deliverables. In
particular, and without limitation, this means that Customer is not licensed to
and agrees that it will not:
(A) Modify or obscure, in any way, the sequence or appearance of any
screens displayed by the SOFTWARE as delivered by COMPANY.
(B) Display any visual or audio content from power on through and
including the time that the Dedicated System has displayed the
SOFTWARE initial user interface screen ("UI Screen"), except: (i) as
provided in section (d)(1)(C) below, (ii) for the presentation of
Customer's brand logo(s) and the required SOFTWARE logo(s) in
accordance with the Microsoft Corporation system specifications for
Windows-Based Terminal devices and the applicable logo license, or
(iii) for diagnostic notices or interactive prompts required for
hardware or device driver initialization.
(C) Modify or obscure, in any way, the appearance of the initial UI Screen
displayed when the Dedicated System is initially powered on,
(including without limitation, the addition or modification of
background wallpaper bitmaps); provided, however, that Customer may
add icons or folders to the UI Screen provided that any such icons are
the same size as, and substantially similar in shape to, icons
included on the UI Screen as delivered by COMPANY and that any such
folders are the same size, shape and appearance as folders included on
the UI Screen as delivered by COMPANY.
77
(D) Pre-configure any programs (including without limitation any
"shells", "screen savers" or "welcome" scripts), "wizards" or
other content except for device drivers necessary to support
preinstalled or pre-configured hardware devices (e.g., network
interfaces, LCD panels, or keyboards), terminal emulation
clients, or system administration support (as allowed in the OAK
documentation) to be enabled, run or initialized automatically
(i.e. without requiring a deliberate act of the end user) from
an icon or folder on the UI Screen or otherwise without a
deliberate act by the end user. By way of example only, and
without limiting the generality of the foregoing, Customer
agrees that it shall not populate with any programs or other
content the SOFTWARE "Start-up" directory, initialization or
other files in any manner which will cause any program or
content (except specifically noted above in this (d)(1)(D)) to
run or load automatically unless the end user has taken a prior
deliberate action.
(E) Modify or add content to any directories installed by the
SOFTWARE, except as permitted in the OAK for pre-installation of
applications by Customer.
(F) Enable end user applications (i.e., programs that process data
for the end user and are not required for the Dedicated System
to operate or function) to run locally on the Dedicated System
with the exception of device drivers, terminal emulation
software, and system administration support software as set
forth in (d)(1)(D) above, or an onscreen keyboard. All end user
applications utilized on the Dedicated System must reside upon
and operate only on the server to which the Dedicated System is
connected.
(e) If Customer installs the SOFTWARE in ROM and the SOFTWARE is not the only
software contained in ROM, Customer will ensure that Microsoft Corporation's
copyright notice for SOFTWARE shall at all times be included in the first four
percent (4%) and the last four percent (4%) of the software contained in ROM.
The copyright notice(s) for SOFTWARE shall be as specified in the Dedicated
Product Deliverables. In any event, Customer will not remove any copyright,
trademark or patent notices that appear on the SOFTWARE as delivered to
Customer.
(f) (1) Except as set forth in Exhibit W, if attached, Customer may
distribute SOFTWARE only with Dedicated Systems which are marketed and
distributed exclusively under Customer's or Customer subsidiaries' brand names,
trade names and trademarks. The SOFTWARE may not be distributed with Dedicated
Systems which are marketed or distributed under any name which includes any
third party brand names, trade names or trademarks. If, at any time, COMPANY
becomes aware of any violation of the foregoing, then without limiting its
remedies, COMPANY may charge Customer for each such Dedicated System an
additional royalty equal to thirty percent (30%) of the highest royalty for the
SOFTWARE. Customer shall pay such additional royalty within thirty (30) days of
receipt of COMPANY's invoice.
(2) In the event Dedicated Systems are marketed or distributed under a
name which includes any third party brand names, trade names or trademarks,
Customer shall ensure that such third party has executed the applicable logo
license with Microsoft Corporation prior to any marketing or distribution of
such Dedicated Systems. Customer hereby agrees to indemnify and defend COMPANY,
MS and their Suppliers from and against all damages, costs and expenses,
including reasonable attorneys' fees which COMPANY, MS or their Suppliers may
incur if the third party markets or distributes Dedicated Systems without
executing, or in breach of, the applicable logo license.
(g) "MSCORP Compatibility Test" shall mean Microsoft Corporation's then-standard
suite of tests conducted by or for Microsoft Corporation to determine whether
Customer's Dedicated System is compliant with the Microsoft Corporation testing
and compatibility requirements for the SOFTWARE. Dedicated Systems must pass the
MSCORP Compatibility Test and display the SOFTWARE logo(s), as designated by MS
from time to time, on Dedicated Systems distributed with the SOFTWARE. Such logo
use shall be in accordance with the applicable logo license which is available
through a separate written agreement with Microsoft Corporation. To obtain
additional information regarding the MSCORP Compatibility Test and the Microsoft
Corporation logo agreement, Customer should contact COMPANY.
(h) Customer's XXXX for this SOFTWARE shall be the XXXX set forth in Exhibit 1
attached hereto, except that it shall be adapted as indicated in Section 2(e) of
the Agreement. Customer may elect to present the XXXX to the end user online
during SOFTWARE setup.
(i) This SOFTWARE includes encryption technology which is not authorized for
sale, use, or distribution within France. French law (Decree 92-1358 of December
1992) generally prohibits the use in France of such technology, unless special
approvals are granted. Accordingly, to comply with French law, Customer shall
ensure that for each unit of SOFTWARE distributed in France, the SOFTWARE
setting for "end user locale" shall be set to "France", thereby disabling the
encryption functionality prohibited by French law. Customer shall not disclose
to third parties (including any end users) the contents of the preceding
sentence; Customer, may, however, in its discretion, segregate and distinctively
xxxx Dedicated Systems with end user locale set to France (noting, for example,
but without limitation, that such Dedicated Systems are "Authorized for
distribution in France," or "Not Intended for Use Outside France"). Customer
shall defend and indemnify COMPANY, and MS and their Suppliers, against any
claim related to breach of this Additional Provision (i).
DEDICATED SYSTEMS
Notwithstanding anything to the contrary in Section 1(b) of the Agreement, each
Dedicated System shall (1) comply with the Microsoft Corporation system
specifications for Windows-Based Terminal devices, and (2) provide the end user
with the ability to utilize the Microsoft Remote Desktop Protocol software to
connect to the server. Dedicated Systems for SOFTWARE described in this
Attachment 2A shall be limited to Customer's current and future computing
devices described below.
At Customer's option, for purposes of administrative convenience, Customer may
designate models by "all models" or by "model line" or "series", (e.g., "Jaguar
model line", "Jaguar Pro series", "Jaguar Pro 750 model line", "Jaguar Pro 950
series", etc.). Dedicated Systems defined by "all models" shall include all
current and future models that meet the description specified in the table
(e.g., "All models which include a CD-ROM drive, 500 Mb or larger hard disk
drive, and sound card.") and utilize the listed microprocessor(s). Dedicated
Systems defined by model line or series shall include all current and future
models which include the designated model line or series name, (e.g., "Jaguar
Pro model line"
78
includes Jaguar Pro, Jaguar Pro 950, Jaguar Pro S, etc.; "Jaguar series"
includes Jaguar, Jaguar Pro, Jaguar Pro 950, Jaguar S400, etc.; "Jaguar Pro 950
series" includes Jaguar Pro 950, Jaguar Pro 955, etc.).
PRODUCT NUMBER KEY: 1=Windows(R) CE Operating System for Windows-Based
Terminal devices version 1.0;
ROYALTY BASIS KEY: C=per copy; if Product box is blank, such Product is not
licensed for distribution with the listed Dedicated System.
-----------------------------------------------------------------------------------------------
MODEL NAME, MODEL NUMBER, MODEL LINE, PROCESSOR PRODUCT NUMBER
OR MODEL DESCRIPTION TYPE MANUFACTURER 1 2 3 4 5
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
79
EXHIBIT X
XXXXXXXXXX 0X
XXXXXXX 0
XXXXXXXXX(X) XXXXXXX(X) CE OPERATING SYSTEM FOR WINDOWS-BASED TERMINAL DEVICES
VERSION 1.0
--------------------------------------------------------------------------------
IMPORTANT--READ CAREFULLY: THIS END USER LICENSE AGREEMENT ("XXXX") IS A LEGAL
AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND THE
MANUFACTURER ("MANUFACTURER") OF THE SPECIAL PURPOSE COMPUTING DEVICE ("SYSTEM")
YOU ACQUIRED WHICH INCLUDES CERTAIN MICROSOFT SOFTWARE PRODUCT(S) INSTALLED ON
THE SYSTEM AND/OR INCLUDED IN THE SYSTEM PACKAGE ("SOFTWARE"). THE SOFTWARE
INCLUDES COMPUTER SOFTWARE, THE ASSOCIATED MEDIA, ANY PRINTED MATERIALS, ANY
"ONLINE" OR ELECTRONIC DOCUMENTATION. BY INSTALLING, COPYING, DOWNLOADING,
ACCESSING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS
OF THIS XXXX. IF YOU DO NOT AGREE TO THE TERMS OF THIS XXXX, MANUFACTURER AND
MICROSOFT LICENSING, INC. ("MS") ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU.
IN SUCH EVENT, YOU MAY NOT USE OR COPY THE SOFTWARE, AND YOU SHOULD PROMPTLY
CONTACT MANUFACTURER FOR INSTRUCTIONS ON RETURN OF THE UNUSED PRODUCT(S) FOR A
REFUND.
--------------------------------------------------------------------------------
SOFTWARE LICENSE
The SOFTWARE is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The SOFTWARE
is licensed, not sold.
1. GRANT OF LICENSE. SOFTWARE includes software already installed on the
SYSTEM ("SYSTEM Software") and, if included in the SYSTEM package, software
contained on the CD-ROM disk and/or floppy disk(s) labeled "Desktop Software for
Microsoft Windows CE" ("Desktop Software"). This XXXX grants you the following
rights to the SOFTWARE:
- SYSTEM SOFTWARE. You may use the SYSTEM Software only as installed in
the SYSTEM.
- DESKTOP SOFTWARE. Desktop Software might not be included with your
SYSTEM. If Desktop Software is included with your SYSTEM, you may
install and use the component(s) of the Desktop Software in accordance
with the terms of the end user license agreement provided with such
component(s). In the absence of a separate end user license agreement
for particular component(s) of the Desktop Software, you may install
and use only one (1) copy of such component(s) on a single computer
with which you use the SYSTEM.
- USE OF WINDOWS CE OPERATING SYSTEM FOR WINDOWS-BASED TERMINAL DEVICES
WITH MICROSOFT WINDOWS NT SERVER, TERMINAL SERVER EDITION. If the
SOFTWARE is Windows CE operating system for Windows-Based Terminal
devices, the following special provisions apply. In order to use the
SYSTEM in connection with Windows NT Server, Terminal Server Edition,
you must possess (1) a Client Access License for Windows NT Server,
Terminal Server Edition and (2) either an end user license for Windows
NT Workstation or a Terminal Services Client Access License (please
refer to the end user license agreement for Windows NT Server,
Terminal Server Edition for additional information).
- BACK-UP COPY. If Manufacturer has not included a back-up copy of the
SYSTEM Software with the SYSTEM, you may make a single back-up copy of
the SYSTEM Software. You may use the back-up copy solely for archival
purposes.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
- SPEECH/HANDWRITING RECOGNITION. If the SYSTEM Software includes speech
and/or handwriting recognition component(s), you should understand
that speech and handwriting recognition are inherently statistical
processes; that recognition errors are inherent in the processes; that
it is your responsibility to provide for handling such errors and to
monitor the recognition processes and correct any errors. NEITHER
MANUFACTURER NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY DAMAGES ARISING
OUT OF ERRORS IN THE SPEECH AND HANDWRITING RECOGNITION PROCESSES.
- LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You
may not reverse engineer, decompile, or disassemble the SYSTEM
Software, except and only to the extent that such activity is
expressly permitted by applicable law notwithstanding this limitation.
- SINGLE SYSTEM. The SYSTEM Software is licensed with the SYSTEM as a
single integrated product. The SYSTEM Software installed in Read Only
Memory ("ROM") of the SYSTEM may only be used as part of the SYSTEM.
- SINGLE XXXX. The package for the SYSTEM Software may contain multiple
versions of this XXXX, such as multiple translations and/or multiple
media versions (e.g., in the user documentation and in the software).
Even if you receive multiple versions of the XXXX, you are licensed to
use only one (1) copy of the SYSTEM Software.
- RENTAL. You may not rent or lease the SOFTWARE.
- SOFTWARE TRANSFER. You may permanently transfer all of your rights
under this XXXX only as part of a sale or transfer of the SYSTEM,
provided you retain no copies, you transfer all of the SOFTWARE
(including all component parts, the media, any upgrades or backup
copies, this XXXX and, if applicable, the Certificate(s) of
Authenticity), AND the recipient agrees to the terms of this XXXX. If
the SOFTWARE is an upgrade, any transfer must include all prior
versions of the SOFTWARE.
- TERMINATION. Without prejudice to any other rights, Manufacturer or MS
may terminate this XXXX if you fail to comply with the terms and
conditions of this XXXX. In such event, you must destroy all copies of
the SOFTWARE and all of its component parts.
80
3. UPGRADES AND RECOVERY MEDIA.
- If the SYSTEM Software and this XXXX are provided separate from the
SYSTEM by Manufacturer and the SYSTEM Software is on a ROM chip, CD
ROM disk(s) or floppy disk(s), and labeled "For ROM Upgrade Purposes
Only" ("ROM Upgrade"), you may install one copy of the ROM Upgrade
onto the SYSTEM as a replacement copy for the SYSTEM Software
originally installed on the SYSTEM and use it in accordance with
Section 1 of this XXXX. You may also install additional copies of the
ROM Upgrade as replacement copies onto additional SYSTEMS which are
the same brand and model as the SYSTEM and contain a duly licensed
copy of the same version and language release of the SOFTWARE
("ADDITIONAL SYSTEMS"), provided that (1) Manufacturer has supplied a
corresponding serialized sticker for each additional copy of the ROM
Upgrade and (2) you affix a serialized sticker per Manufacturer's
instructions for each unit of ROM Upgrade you install.
- If the SYSTEM SOFTWARE is provided by Manufacturer on separate media
and labeled as "Recovery Media", you may not make a
copy of the SOFTWARE as described in Section 1 for archival purposes.
Instead, you may use the Recovery Media solely to restore or reinstall
the same version and language release of the SOFTWARE as originally
installed on the SYSTEM and thereafter use the SOFTWARE as restored or
reinstalled in accordance with Section 1 of this XXXX. A single unit
of Recovery Media may be used by you to restore or reinstall the
SOFTWARE on ADDITIONAL SYSTEMS.
4. COPYRIGHT. All title and copyrights in and to the SOFTWARE (including but
not limited to any images, photographs, animations, video, audio, music,
text and "applets," incorporated into the SOFTWARE), the accompanying
printed materials, and any copies of the SOFTWARE, are owned by MS or its
suppliers (including Microsoft Corporation). You may not copy the printed
materials accompanying the SOFTWARE. All rights not specifically granted
under this XXXX are reserved by MS and its suppliers (including Microsoft
Corporation).
5. PRODUCT SUPPORT. PRODUCT SUPPORT FOR THE SOFTWARE IS NOT PROVIDED BY MS,
ITS PARENT CORPORATION, MICROSOFT CORPORATION, OR THEIR AFFILIATES OR
SUBSIDIARIES. FOR PRODUCT SUPPORT, PLEASE REFER TO MANUFACTURER'S SUPPORT
NUMBER PROVIDED IN THE DOCUMENTATION FOR THE SYSTEM. SHOULD YOU HAVE ANY
QUESTIONS CONCERNING THIS XXXX, OR IF YOU DESIRE TO CONTACT MANUFACTURER
FOR ANY OTHER REASON, PLEASE REFER TO THE ADDRESS PROVIDED IN THE
DOCUMENTATION FOR THE SYSTEM.
6. EXPORT RESTRICTIONS. You agree that you will not export or re-export the
SOFTWARE to any country, person, or entity subject to U.S. export
restrictions. You specifically agree not to export or re-export the
SOFTWARE: (i) to any country to which the U.S. has embargoed or restricted
the export of goods or services,which as of March 1998 include, but are not
necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan and
Syria, or to any national of any such country, wherever located, who
intends to transmit or transport the products back to such country; (ii) to
any person or entity who you know or have reason to know will utilize the
SOFTWARE or portion thereof in the design, development or production of
nuclear, chemical or biological weapons; or (iii) to any person or entity
who has been prohibited from participating in U.S. export transactions by
any federal agency of the U.S. government.
If the SOFTWARE is labeled "North America Only Version" above, on the
Product Identification Card, or on the SOFTWARE packaging or other written
materials, then the following applies: The SOFTWARE is intended for
distribution only in the United States, its territories and possessions
(including Puerto Rico, Guam, and U.S. Virgin Islands) and Canada. Export
of the SOFTWARE from the United States is regulated under "EI controls" of
the Export Administration Regulations (EAR, 15 CFR 730-744) of the U.S.
Commerce Department, Bureau of Export Administration (BXA). A license is
required to export the SOFTWARE outside the United States or Canada. You
agree that you will not directly or indirectly, export or re-export the
SOFTWARE (or portions thereof) to any country, other than Canada, or to any
person or entity subject to U.S. export restrictions without first
obtaining a Commerce Department export license. You warrant and represent
that neither the BXA nor any other U.S. federal agency has suspended,
revoked or denied your export privileges.
7. NOTE ON JAVA SUPPORT. The SYSTEM Software may contain support for programs
written in Java. Java technology is not fault tolerant and is not designed,
manufactured, or intended for use or resale as on-line control equipment in
hazardous environments requiring fail-safe performance, such as in the
operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons
systems, in which the failure of Java technology could lead directly to
death, personal injury, or severe physical or environmental damage. Sun
Microsystems, Inc. has contractually obligated Microsoft Corporation to
make this disclaimer.
8. LIMITED WARRANTY.
- LIMITED WARRANTY. Manufacturer warrants that the SOFTWARE will perform
substantially in accordance with the accompanying written materials
for a period of ninety (90) days from the date of receipt. Any implied
warranties on the SOFTWARE are limited to ninety (90) days. Some
states/jurisdictions do not allow limitations on duration of an
implied warranty, so the above limitation may not apply to you.
- CUSTOMER REMEDIES. Manufacturer's and its suppliers' entire liability
and your exclusive remedy shall be, at Manufacturer's option, either
(a) return of the price paid, or (b) repair or replacement of the
SOFTWARE that does not meet the above Limited Warranty and which is
returned to Manufacturer with a copy of your receipt. This Limited
Warranty is void if failure of the SOFTWARE has resulted from
accident, abuse, or misapplication. Any replacement SOFTWARE will be
warranted for the remainder of the original warranty period or thirty
(30) days, whichever is longer.
- NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED
WARRANTY SECTION ABOVE, THE SOFTWARE IS PROVIDED TO THE END USER "AS
IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE
RISK OF THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU.
81
- NO LIABILITY FOR CONSEQUENTIAL DAMAGES. MANUFACTURER OR MANUFACTURER'S
SUPPLIERS, INCLUDING MS AND ITS SUPPLIERS, SHALL NOT BE HELD TO ANY
LIABILITY FOR ANY DAMAGES SUFFERED OR INCURRED BY THE END USER
(INCLUDING, BUT NOT LIMITED TO, GENERAL, SPECIAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE),
ARISING FROM OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF
THE SOFTWARE.
If you acquired this XXXX in the United States, this XXXX is governed by the
laws of the State of Washington.
If you acquired this XXXX in the Canada, this XXXX is governed by the laws of
the Province of Ontario, Canada. Each of the parties hereto irrevocably attorns
to the jurisdiction of the courts of the Province of Ontario and further agrees
to commence any litigation which may arise hereunder in the courts located in
the Judicial District of York, Province of Ontario.
82
If this XXXX was acquired outside the United States, then local law may apply.
Should you have any questions concerning this XXXX, please contact the
Manufacturer of your SYSTEM.
_______________________________________________________________________________
U.S. GOVERNMENT RESTRICTED RIGHTS
The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. Use,
duplication, or disclosure by the Government is subject to restrictions as set
forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the
Commercial Computer Software -- Restricted Rights at 48 CFR 52.227-19, as
applicable. Manufacturer is Microsoft Corporation/One Microsoft Xxx/Xxxxxxx, XX
00000-0000.
83
EXHIBIT U
ATTACHMENT 2A
EXHIBIT S
USE OF DEDICATED PRODUCT DELIVERABLES FOR WINDOWS CE SOFTWARE
(a) COMPANY grants to Customer a non-exclusive, personal, nontransferable,
non-assignable license during the term of the Agreement to:
(i) use on Customer premises the Dedicated Product Deliverables (other
than the Software Development Kit, if provided) in accordance with the
instructions contained in the Dedicated Product Deliverables for the
following limited purposes:
(A) creating an OEM Abstraction Layer for the SOFTWARE on
Customer's Dedicated Systems;
(B) testing Customer's Dedicated Systems;
(C) creating device drivers for Customer's Dedicated Systems;
and
(ii) use on Customer premises the Software Development Kit in
accordance with the instructions contained therein to design software
applications for the SOFTWARE; and
(iii) distribute the Object Code files in the Software Development Kit
designated as "Redistributable Components" only in conjunction with
Customer's software application product, provided that:
(A) Customer's software application product is designed to
operate with the SOFTWARE and is fully compatible with the applicable
SOFTWARE APIs and protocols;
(B) Customer does not use MS' or Microsoft Corporation's name,
logo (except by separate written agreement with MS or Microsoft
Corporation), or trademarks to market the software application product;
(C) Customer includes MS' or Microsoft Corporation's copyright
notices for the SOFTWARE on the disk label and/or on the title page of
the documentation for the software application product; and
(D) Customer hereby indemnifies, holds harmless, and defends
COMPANY, MS and their Suppliers from and against any claims or
lawsuits, including attorney's fees, that arise or result from the use
or distribution of the software application product.
The limited license granted hereunder is solely for Customer's internal use. MS
reserves all rights not expressly licensed hereunder.
(b) MS and Customer shall jointly own any and all intellectual property in and
to any modifications or additions made by or for Customer to the OEM Abstraction
Layer and device drivers. To the extent required to realize such joint
ownership, Customer hereby assigns to MS an undivided one-half interest in any
and all such intellectual property. The parties agree that each shall be free to
use and commercially exploit their interests in such intellectual property and
there shall be no obligation of payment or accounting to the other therefore,
provided that Customer's use or exploitation of such intellectual property shall
at all times be subject to the terms of this Agreement and shall be exercised
solely in connection with the SOFTWARE.
(c) Customer shall comply with the confidentiality obligations under Section 11
of the Agreement. In addition, Customer shall use best efforts to safeguard the
Dedicated Product Deliverables from disclosure, which care shall not be less
than the standard of care Customer uses to protect its own most confidential
information. Customer shall not reproduce, duplicate, copy or otherwise
disclose, distribute or disseminate any part of the Dedicated Product
Deliverables or additional information or materials provided pursuant to this
Exhibit S in any media except for Customer's own internal use by Customer's
full-time employees on a need-to-know basis on Customer premises. Customer
hereby indemnifies COMPANY, MS and their Suppliers for any damages COMPANY, MS
or their Suppliers may suffer as a result of the failure of Customer to abide by
the terms of Section 11 of the Agreement or this Exhibit S. Notwithstanding
anything to the contrary in Section 11, Customer's confidentiality obligations
with respect to Source Code provided in connection with the Dedicated Product
Deliverables shall continue until such time as MS or Microsoft Corporation
places such Source Code in the public domain.
(d) Notwithstanding Section (c) above, Customer may disclose the Dedicated
Product Deliverables to a third party contractor which MS has confirmed in
writing to be an MS authorized Windows CE Integrator and employ such Windows CE
Integrator as a third party contractor of Customer to use the Dedicated Product
Deliverables in accordance with the Agreement and this Exhibit S, provided that:
(i) Customer and its contractor enter into a written agreement
(hereinafter "Contractor Agreement") that expressly provides that MS is
a third party intended beneficiary of the Contractor Agreement with
rights to enforce such agreement, and that requires contractor:
(A) to comply with obligations identical to those imposed on
Customer by the Agreement, including, without limitation, those
obligations set forth in Sections (b) and (c) of this Exhibit S;
(B) to cease all reference to, and to return all full or
partial copies of, the Dedicated Product Deliverables upon notice from
Customer, COMPANY, or MS of the termination or expiration of the
Agreement; and
84
EXHIBIT U
ATTACHMENT 2A
EXHIBIT S
(Continued)
(C) to pay COMPANY's, MS' or their Suppliers or Customer's attorneys'
fees and costs if COMPANY, Customer or MS or their Suppliers employ(s)
attorneys to enforce any rights arising out of the Contractor Agreement;
(ii) Customer guarantees its contractors' fulfillment on the applicable
obligations imposed on Customer by this Agreement;
(iii) Customer hereby indemnifies COMPANY, MS and their Suppliers with respect
to any and all damages of any kind, without limitation caused by unauthorized
reproduction and/or distribution of any portion of the Dedicated Product
Deliverables by any such contractor or by any other breach of the Contractor
Agreement by any such contractor; and
(iv) Customer notifies MS of the name and address of any contractor with
which Customer intends to enter into a Contractor Agreement at least sixty (60)
days before execution of such agreement, and MS approves in writing such
contractor. Customer's notice to MS shall also include a written summary of the
terms of any such Contractor Agreement(s), including: the specific activity to
be performed by the contractor; the SOFTWARE involved; the term of the
agreement with the contractor; and such samples as MS may reasonably request of
the work product of the contractor. Customer shall promptly notify MS of the
termination, expiration or significant modification of the terms of such
Contractor Agreement(s).
(e) In the event of an assignment or attempted assignment in violation of
Section 12 of the Agreement, the license described in this Exhibit S shall
immediately terminate and the Dedicated Product Deliverables shall be returned
to COMPANY within ten (10) days. Customer shall provide a declaration signed by
an officer of Customer, and a declaration signed by an officer of the
authorized Windows CE Integrator, attesting that all copies of the Dedicated
Product Deliverables have been returned to COMPANY.
----------------------------------- ------------------------------------
(Name of COMPANY) (Name of Customer)
----------------------------------- ------------------------------------
By By
----------------------------------- ------------------------------------
Name (Print) Name (Print)
----------------------------------- ------------------------------------
Title Title
----------------------------------- ------------------------------------
Date Date
85
EXHIBIT V3
LICENSE OF ADDITIONAL PRODUCT SOFTWARE UNITS
[THIS EXHIBIT V3 IS FOR USE ONLY WITH AGREEMENTS THAT INCLUDE
"WINDOWS CE PRODUCTS FOR WINDOWS-BASED TERMINAL DEVICES:" AS EXHIBIT C3]
AMENDMENT NUMBER ____
Amendment Date:________
to OEM CUSTOMER SUBLICENSE AGREEMENT FOR DEDICATED SYSTEMS
between _____________________, a Corporation of ____________
and ________________, a Corporation of ________________
Agreement Effective Date: _________________
WHEREAS, Customer has licensed a certain number of units of Product
Software (the "SOFTWARE") from COMPANY under the terms of the above referenced
license agreement (the "Agreement");
WHEREAS, Customer now desires to license additional units of SOFTWARE
from COMPANY as described in the Additional Units Attachment dated __________,
199__, which is attached to this Amendment;
NOW, THEREFORE, Customer and COMPANY hereby agree:
1. Effective as of the date indicated on the Additional Units Attachment, such
Additional Units Attachment is hereby added to the Agreement and sets forth the
number of additional units of the SOFTWARE and the language version(s) licensed
to Customer under the terms and conditions of the Agreement.
2. Customer may license additional SOFTWARE on the Additional Units Attachment
only for the SOFTWARE and the language version(s) that are currently licensed
by Customer under the Agreement between Customer and COMPANY. In order to
license SOFTWARE or language version(s) not currently licensed under the
Agreement with COMPANY, Customer shall execute a new OEM Customer Sublicense
Agreement for Dedicated Systems which includes such SOFTWARE and/or language
version(s).
3. All capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Agreement. The terms of this Amendment shall supersede
any inconsistent terms contained in the Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment by their duly
authorized representatives as of the date set forth above. All signed copies of
this Amendment shall be deemed originals. Each individual signing on behalf of
Customer below hereby represents and warrants that he or she has full authority
to sign this Agreement and bind Customer to perform all duties and obligations
contemplated by this Amendment. If Customer is located in a jurisdiction in
which a corporate seal or "chop" is commonly used as an instrument of agreement
execution, in addition to the individual signature provided below, Customer's
seal or "chop" is commonly used as an instrument of agreement execution, in
addition to the individual signature provided below, Customer's seal or "chop"
should be entered below Customer's signature block. This Amendment is executed
only in the English language.
----------------------------------- ------------------------------------
(Name of COMPANY) (Name of Customer)
----------------------------------- ------------------------------------
By (Signature) By (Signature)
----------------------------------- ------------------------------------
Name (Print) Name (Print)
----------------------------------- ------------------------------------
Title Title
----------------------------------- ------------------------------------
Date Date
Customer's seal or "chop"
86
EXHIBIT V3
ADDITIONAL UNITS ATTACHMENT (CONT.)
Dated:_____________________
PRODUCT NAME AND VERSION ADDITIONAL UNITS OF SOFTWARE LICENSED LANGUAGE VERSION
----------------------------------------------------------------------------------------------------------------
Microsoft(R) Windows(R) CE Operating System for ________________________
Windows(R)-Based Terminal devices version 1.0
----------------------------------------------------------------------------------------------------------------
