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EXHIBIT 10.7
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY A DOUBLE ASTERISK
(**). THE CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.]
PCC Board Design License
Final
BOARD-DESIGN LICENSE AGREEMENT
This Agreement is effective as of December 16, 1994 (the "Effective Date"), by
and between APPLE COMPUTER, INC., a California corporation having its principal
place of business at 00000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
("Apple") and POWER COMPUTING CORPORATION, a Delaware corporation having its
principal place of business at 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000
("PCC").
RECITALS
Apple has designed logic boards for its Macintosh computers. Apple and PCC
desire PCC to modify these board designs and to license such modified designs
to Manufacturing Licensees.
AGREEMENT
1. DEFINITIONS
1.1 "Apple Board Designs" means logic board designs for Apple's
PowerMacintosh and Macintosh computers identified in Exhibit A, in the
form delivered to PCC.
1.2 "Apple Deliverables" means the Apple deliverables identified in
Exhibit A.
1.3 "Confidential Information" shall mean: (i) for Apple, the Apple Board
Designs, the Apple Deliverables, and any pre-release versions of the
Mac OS delivered by Apple to PCC pursuant to this Agreement; (ii) for
either party, any information relating to that party's product plans,
designs, costs, prices and names, finances, marketing plans, business
opportunities, personnel, research, development or know-how which is
designated by the disclosing party as confidential in writing or, if
disclosed orally, reduced to writing and designated as confidential
within thirty (30) days; and (iii) the terms and conditions of this
Agreement; provided, however that "Confidential Information" shall
not include information that: (a) is or becomes generally known or
available by publication, commercial use or otherwise through no fault
of the receiving party; (b) is known and has been reduced to tangible
form by the receiving party at the time of disclosure and is not
subject to restriction; (c) is independently developed or learned by
the
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receiving party; (d) is lawfully obtained from a third party who has the
right to make such disclosure; or (e) is released for publication by the
disclosing party in writing.
1.4 "Mac OS" means versions of Apple's Mac OS in object code form, that are
generally available during the term of this Agreement and pre-release
versions of the Mac OS that Apple delivers to PCC pursuant to this
Agreement.
1.5 "Manufacturing Licensees" shall mean parties to which Apple has granted
the right to manufacture computers capable of running the Mac OS
pursuant to a Certified Computer Manufacturing Agreement.
1.6 "PCC Board Designs" means logic board designs to be developed by PCC
pursuant to this Agreement, which have been approved by Apple pursuant
to Section 2.5.
2. OWNERSHIP AND LICENSES
2.1 Apple Ownership. Apple retains all right, title and interest in and
to the Apple Board Designs, the Apple Deliverables, and the Mac OS.
2.2 PCC Ownership. Subject to Apple's underlying rights in the Apple Board
Designs, PCC will retain ownership of the PCC Board Designs.
2.3 (a) License to Apple Board Designs and Apple Deliverables. Apple
hereby grants to PCC a non-exclusive, non-transferable,
royalty-bearing license to use the Apple Board Designs and
Apple Deliverables to develop the PCC Board Designs, and to
license Manufacturing Licensees the right to use such PCC Board
Designs in the manufacture of logic boards. PCC has no right
under this Agreement to manufacture or sell boards or to sell
computers incorporating boards based on PCC Board Designs.
(b) License to Mac OS. Apple further grants to PCC a non-exclusive,
non-transferable license to make copies of the Mac OS as
reasonably necessary for the development, testing and marketing
of the PCC Board Designs, provided, however, that PCC has no
right under this Agreement to distribute copies of the Mac OS to
other persons, except as expressly authorized by this Agreement.
(c) Restrictions. PCC agrees that it will not use, manufacture or
distribute the PCC Board Designs, except as expressly authorized
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in this Agreement or other written agreements with Apple. This
license is limited to Apple's rights in the layout of the Apple Board
Designs (i.e., the manner in which the various semiconductor devices and
other components are connected to each other) and does not include a
license to any such semiconductor devices or other components contained
on the Apple Board Designs.
2.4 Proprietary Components. Apple will authorize others to sell to PCC
components that are required by the Apple Board Designs and are not
otherwise available to PCC, for use in developing, testing, and
marketing of the PCC Board Designs. PCC will not resell such components
and will not use such components for any other purpose.
2.5 Apple Approval. The PCC Board Design designs will be subject to approval
by Apple. Such approval must be obtained prior to PCC delivering the
associated PCC Board Designs to any other party. Such approval will not
be unreasonably withheld.
2.6 Other Licensees. Apple will make available for licensing to PCC the same
board designs that Apple makes generally available for licensing to
other Apple Board Design licensees and will make available manufacturing
test tools and/or diagnostics that Apple makes generally available
to such other licensees.
3. SUPPORT AND FEES
3.1 Apple will provide to PCC reasonable support for the first twelve (12)
months of this Agreement up to 160 hours total for each Apple Board
Design licensed under this Agreement. Such support will include
answering questions PCC may have regarding the Apple Board Designs and
the Mac OS. In addition, PCC will be entitled, at no additional charge,
to receive support from Apple's Developer Technical Support line during
the term of this Agreement.
3.2 For each Apple Board Design that is licensed to PCC pursuant to this
Agreement, PCC will pay to Apple a one time fee in the amount of **
within thirty (30) days after Apple delivers the Apple Deliverables
associated with such Apple Board Design to PCC.
INDEMNITY
PCC shall, at PCC's expense, indemnify, hold harmless and, at Apple's
request, defend Apple, and Apple's subsidiaries, affiliates, directors,
officers,
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employees, agents and independent contractors, from and against any and
all loss, cost, liability or expense (including costs and reasonable
fees of attorneys and other professionals) arising out of or in
connection with PCC's license of PCC Board Designs to Manufacturing
Licensees. The foregoing states the parties' total obligation with
respect to indemnity in connection with or arising out of this
Agreement.
5. CONFIDENTIALITY
Each party will protect the other's Confidential Information from
unauthorized dissemination and use with the same degree of care that each
such party uses to protect its own like information. Neither party will use the
other's Confidential Information for purposes other than those necessary to
directly further the purposes of this Agreement. Neither party will disclose to
third parties the other's Confidential Information without the prior written
consent of the other party.
6. TERM OF AGREEMENT
This Agreement will come into force on the Effective Date and will remain in
effect for a period of five (5) years unless earlier terminated by either party
pursuant to Section 7.
7. TERMINATION
7.1 Termination For Default. Either party may suspend its performance and/or
terminate this Agreement immediately upon written notice at any time if:
(a) The other party is in material breach of any warranty,
term, condition or covenant of this Agreement other than
those contained in Section 5 and fails to cure that breach
within thirty (30) days after written notice of that breach and
of the first party's intention to suspend its performance or
terminate;
(b) The other party is in material breach of any warranty,
term, condition or covenant of Section 5; or
(c) The other party: (i) becomes insolvent; (ii) fails to pay its
debts or perform its obligations in the ordinary course of
business as they mature; (iii) admits in writing its insolvency
or inability to pay its debts or perform its obligations as
they mature; or (iv) makes an assignment for the benefit of
creditors.
7.2 Effect of Termination.
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(a) Immediately upon termination of this Agreement due to PCC's
breach, PCC shall return all Apple Board Designs and Apple
Deliverables to Apple and certify in writing that it has done
so and will no longer have any right to develop or license
PCC Board Designs to any other party.
(b) Notwithstanding any termination of this Agreement, the
obligations of the parties under Sections 1, 2.1, 2.2, 3.2, 4, 5,
7.2, 8 and 9 shall remain in effect.
8. LIMITATION OF LIABILITY
8.1 CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL APPLE BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR DAMAGES TO PCC'S
BUSINESS REPUTATION HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY,
WHETHER IN AN ACTION FOR CONTRACT, STRICT LIABILITY OR TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT APPLE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL
PURPOSE OF ANY REMEDY.
8.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL APPLE'S LIABILITY TO PCC, IN
THE AGGREGATE, UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY
PCC TO APPLE UNDER THIS AGREEMENT.
9. GENERAL
9.1 Relationship of Parties. PCC, Apple and the Manufacturing Licensees are
all independent parties. No party is an agent, partner, representative
or joint venturer for or with Apple, nor does any party have any
authority to bind any other party by contract or otherwise to any
obligation. They will not represent to the contrary, explicity or
implicitly.
9.2 Assignment. The rights and liabilities of the parties hereto will bind
and inure to the benefit of their respective successors, executors and
administrators, as the case may be; provided that, as Apple has licensed
these rights only to PCC may not assign or delegate its obligations under
this Agreement either in whole or in part, without the prior written
consent of Apple. Any attempted assignment in violation of the provisions
of this Section 9.2 will be void.
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9.3 Equitable Relief. Because PCC will have access to and become acquainted
with Confidential Information of Apple, the unauthorized use or
disclosure of which would cause irreparable harm and significant
injury which would be difficult to ascertain and which would not be
compensable by damages alone, both parties agree that, in addition to
any other remedy available to Apple at law or in equity, the
confidentiality provisions of this Agreement shall be enforceable under
the provisions of the California Uniform Trade Secrets Act, California
Civil Code Section 3426, as amended.
9.4 Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the United States and the State of
California as applied to agreements entered into and to be performed
entirely within California between California residents. Both parties
will comply with applicable export laws and regulations and will
cooperate in executing necessary documentation to comply with such laws
and regulations. The parties specifically exclude applicability of the
Convention Relating to Uniform Law on the International Sale of Goods.
9.5 Jurisdiction and Venue. The parties hereby submit to the
jurisdiction of, and waive any venue objections against, the United
States District Court for the Northern District of California, the
Superior Court of the State of California for the County of Santa Xxxxx,
the Santa Xxxxx Municipal Court, and any mutually agreed to alternative
dispute resolution proceeding taking place in Santa Xxxxx County,
California, in any litigation arising out of the Agreement.
9.6 Trademark Usage. PCC shall not, without Apple's prior written
consent, use any Apple trademarks, service marks, trade names, logos
or other commercial or product designations, for any purpose,
including, but not limited to, use in connection with any PCC products,
promotions, advertisements or exhibitions.
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9.7 Complete Agreement. This Agreement, including all Exhibits, constitutes
the entire agreement between the parties with respect to the subject
matter hereof, and supersedes and replaces all prior or contemporaneous
understandings or agreements, written or oral, regarding such subject
matter. No amendment to or modification of this Agreement shall be
binding unless in writing and signed by a duly authorized representative
of both parties.
IN WITNESS WHEREOF, the parties have caused this Macintosh Board-Design License
Agreement to be executed by their duly authorized representatives in Cupertino,
California, on the final date set forth below.
APPLE: PCC:
APPLE COMPUTER, INC.
BY: /s/ BY: /s/
---------------------------- ------------------------------
NAME: Xxx Xxxxxxxxxx NAME: Xxxxxxx X. Xxxxx
---------------------------- ------------------------------
TITLE: Vice President, Licensing TITLE: President & CEO
---------------------------- ------------------------------
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EXHIBIT A
APPLE BOARD DESIGNS
**
APPLE DELIVERABLES
**
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