1
EXHIBIT 10.13
OPENGL(TM) LICENSE AGREEMENT
This OPENGL LICENSE AGREEMENT is made the 30th day of June, 1992
between Kubota Pacific Computer, a California corporation having a place of
business at 0000 Xxxxx Xxxxxx, Xxxxx Xxxxx, XX 00000 ("Licensee"), and Silicon
Graphics, Inc. ("SGI"), a Delaware corporation having a place of business at
0000 Xxxxx Xxxxxxxxx Xxxx., Xxxxxxxx Xxxx, XX 00000-0000.
WHEREAS, SGI is in the business of designing, manufacturing and
marketing computers and software products, is the author inventor and owner of
the OpenGL(TM) high level programming language for applications using three
dimensional graphics, and desires to grant a license in OpenGL to Licensee;
WHEREAS, Licensee is in the business of designing, manufacturing and
marketing computer products, and desires to be granted a certain level of
license to SGI's OpenGL product;
NOW, THEREFORE, in consideration of the mutual covenant contained
herein, the parties agree as follows:
1.0 DEFINITIONS.
1.1 "AGREEMENT" means this OpenGL(TM) License Agreement.
1.2 "CONFORMANCE CERTIFIED" means the designation that
Licensee may apply to a Derived Program, Licensee has performed the Conformance
Test on such Derived Program and with respect to which Licensee has certified in
writing to SGI that the Conformance Test has fully or partially (in a case where
SGI has granted a test waiver, pursuant to Section 4.2 hereof) executed without
reporting an implementation error. Licensee may only refer to Conformance
Certified Derived Programs as OpenGL Compatible, and may only market such
Derived Programs under the trademark "OpenGL(TM)."
1.3 "CONFORMANCE TEST" means one or more computer programs
supplied by SGI hereunder (as listed on Attachment A) for use in determining
whether Derived Programs are OpenGL Compatible, by indicating whether Licensee
has correctly and completely implemented all portions of the OpenGL API.
1.4 "DERIVED PROGRAM" means a binary (object code) version of
a software program created by compiling (i) Licensee Source, and/or (ii) a
version of an implementation or any portion of SGI Source that Licensee has
modified and/or ported to be compatible with Licensee's Product. The parties
agree and acknowledge that Derived Programs are "derivative works," within the
meaning of such term in the Copyright Act (17 U.S.C., Section 101 et seq.).
2
1.5 "DESIGNATED SITE" means the location of the Source
Machine(s), which shall be Licensee's address first set forth above, or an
alternative location agreed to in writing by the parties.
1.6 "DISCLOSURE" means a party disclosing information to the
other party under this Agreement.
1.7 "DOCUMENTATION" means any manuals or other literature
(except the Specification) related to OpenGL that SGI provides hereunder.
Documentation shall be listed on Attachment A hereto.
1.8 "EFFECTIVE DATE" means the date first set forth above, on
which date the term of this Agreement shall commence.
1.9 "END USER LICENSE AGREEMENT" means Licensee's standard
from end user software license agreement, which shall contain terms and
conditions that are substantially similar to those set forth in Attachment C
hereto. Attachment C may be an example of Licensee's current end user license
agreement.
1.10 "IMPLEMENTATION" means an embodiment of the OpenGL in SGI
Source form, which SGI may provide hereunder.
1.11 "INFORMATION" means data that concerns a party's business
plans, customers, technology or products, and is confidential, proprietary
and/or a trade secret to, such party.
1.12 "OPENGL" means a collection of procedures, algorithms,
utilities and the like, including window system interfaces, authored, invented
and owned by SGI, that may be implemented as a windowing-system neutral,
application programming interface, which may be used by programmers to define
objects and specify operations involved in rendering and displaying 2- and
3-dimensional graphical images on computers. OpenGL includes but is not limited
to, (i) the Specification, Implementations, and the OpenGL(TM) API, (ii)
associated Conformance Test, interface and communications software, alternate
programming language bindings, (iii) the Protocol Interface Library, and (iv)
Associated Documentation. Any such items appropriate for the license level
specified herein to be licensed and delivered hereunder shall be listed on
Attachment A prior to execution hereof.
1.13 "OPENGL API" means the external application programming
interface to the OpenGL.
1.14 "OPENGL COMPATIBLE" means, with respect to a Derived
Program: any Derived Program that conforms strictly to the Specification, with
the OpenGL API present and functional. A Derived Program that has successfully
completed the Conformance Test shall be deemed to be OpenGL Compatible, for
purposes of this Agreement.
-2-
3
1.15 "LEVEL I LICENSE" means a license to create Licensee
Source and Derived Programs from the specification and the Protocol Interface
Library, and to distribute and sublicense Conformance Certified Derived Programs
and associated Documentation under SGI's OpenGL(TM) Trademark. Upon payment of
the Level I License fee specified in Attachment A, SGI shall grant to Licensee a
Level I License hereunder.
1.16 "LEVEL II LICENSE" means a license that includes a Level
I License, as set forth in Section 1.15 above, and further provides a license to
possess, port and modify an Implementation and other SGI Source to create
Derived Programs, and to distribute and sublicense Conformance Certified Derived
Programs under SGI's OpenGL(TM) trademark. SGI shall grant a Level II License to
Licensee hereunder only (i) if Level II License rights are designated in Section
3.2 below, and (ii) upon Licensee's payment to SGI of the Level II License Fee
specified in Attachment A.
1.17 "LEVEL III LICENSE" means a license that includes Level I
and Level II Licenses, and further provides a license to distribute SGI Source
modified by Licensee, and Licensee Source, to verified SGI Level II or Level III
Licensees. SGI shall grant a Level III License to Licensee hereunder only (i) if
a Level III License is specified in Section 3.3 below, and (ii) upon Licensee's
payment to SGI of the Level III License Fee specified in Attachment A.
1.18 "LICENSEE'S PRODUCT(S)" means computer hardware and
software products manufactured and/or marketed by Licensee.
1.19 "LICENSEE SOURCE" means any portion of a Source file or
program created by or on behalf of Licensee that embodies any portion of the
OpenGL.
1.20. "PROTOCOL INTERFACE LIBRARY" means SGI Source that
embodies instructions for encoding commands for the OpenGL renderer, for
communication from the client to the server in a client/server implementation of
the OpenGL.
1.21. "RECIPIENT" means a party receiving information from the
other party under this Agreement.
1.22. "REPRESENTATIVE" means an agent, consultant, contract
developer or programmer of SGI or Licensee.
1.23 "SGI SOURCE" means any Source provided by SGI hereunder,
and associated Documentation.
1.24 "SOURCE MACHINE(S)" means one or more computers on which
Licensee stores and uses the SGI Source and the Licensee Source. Each Source
machine is identified by type and serial number Attachment A hereto.
1.25 "SOURCE" means software programs in human readable form,
which must be compiled into a binary form before direct execution on a computer.
-3-
4
1.26 "SPECIFICATION" means a list and description of the
characteristics and features of the OpenGL, which includes the definition and
description of the implementation of the OpenGL API in an abstract, device
independent state machine for graphics rendering. The Specification is set forth
hereto as Attachment B.
1.27 "TRADEMARKS" means the SGI-owned trademarks OpenGL(TM),
IRIS Graphics Library(TM), GL(TM), and any other trademark, service xxxx or
trade name that SGI may designate, use or adopt from time to time in connection
with the use, distribution, licensing and marketing of OpenGL, the OpenGL
Specifications, the OpenGL API, Documentation or related products.
2.0 ATTACHMENTS. This Agreement includes the following
attachments, which are incorporated into, and made a part hereof:
(a) Attachment A identifies the Source Machine(s) and lists
the OpenGL items to be provided hereunder,
(b) Attachment B (Specification);
(c) Attachment C (Licensee's End User License Agreement); and
(d) Attachment D (Software Support Agreement) Optional; check
box if included: / /
3.0 LIMITED LICENSES.
3.1 LEVEL I LICENSE. Licensee hereby receives the following
license:
a. Implementation of Derived Programs. SGI hereby grants
to Licensee a limited, non-exclusive, non-transferable, personal, worldwide,
royalty-bearing license to use and modify the information and data contained in
the Specification to create Licensee Source, and to use and modify the Protocol
Interface Library, solely to create Derived Programs.
b. Marketing and Distribution of Conformance Certified
Derived Programs. SGI hereby grants to licensee a limited, non-exclusive,
non-transferable, personal, royalty-bearing worldwide license to duplicate, use
and distribute by sublicense copies of Conformance Certified Derived Programs,
solely under applicable Trademarks and for use with Licensee's Product, provided
that (i) all such copies shall include Trademark, proprietary rights and
copyright notices originally supplied by SGI, (ii) such distribution and
sublicensing shall be strictly in accordance with provisions of Sections 3.4 and
3.5 below, and (iii) Licensee shall pay sublicensing fees to SGI in accordance
with Section 5 below. Licensee hereby represents, covenants and warrants that
(1) under no circumstance shall it provide a Derived Program that has not been
Conformance Certified to any third party, and (2) it will not disclose or
provide any Licensee Source or the Protocol Interface Library to a third party,
except a
-4-
5
Representative, under any circumstance whatsoever, except as provided in Section
3.3 below.
c. Documentation. SGI hereby grants to Licensee a
limited, non-exclusive, non-transferable, personal, worldwide license to (i)
edit, reformat, rewrite, copy, reissue and create derivative works of
Documentation, (ii) incorporate and copy Documentation into other similar
materials prepared by or for Licensee, and (iii) distribute such Documentation,
including derivative works thereof, solely in connection with its distribution
and marketing of Conformance Certified Derived Programs, and provided that all
such copies shall include Trademark, proprietary rights and copyright notices
originally supplied by SGI.
[X] 3.2 LEVEL II LICENSE. SGI shall grant to Licensee the license set forth in
this Section 3.2 below, only if the box to the left and the "Level II License"
box on the signature page hereof are marked, and upon Licensee's payment of the
Level II License fee specified in Attachment A.
a. Level II License. Under this Level II License, SGI
hereby grants to Licensee the license set forth in Sections 3.1 above, solely in
accordance with the terms and conditions thereof.
b. Limited SGI Source License. SGI hereby grants to
Licensee a limited, non-exclusive, non-transferable, personal, worldwide,
royalty-bearing license to copy, store, process, compile, execute, modify, and
enhance the implementation(s) and other SGI Source, solely on the Source
Machine(s) at Licensee's Designated Site. Such license shall expressly include
the right to modify and port an Implementation to be compatible with Licensee's
Products, and to compile Derived Programs therefrom that Licensee may, in
Conformance Certified versions, sublicense and distribute in accordance with
Sections 3.1(b) above and 3.4 and 3.5 below. In the event that and only while a
Source Machine is not operative, LICENSEE may transfer to and use the SGI Source
on a backup computer at the Designated Site, provided that LICENSEE shall inform
SGI in writing of such transfer, identifying such backup computer, within twenty
(20) days of original transfer, if such transfer continues for longer than
fifteen (15) days. Licensee hereby represents, covenants and warrants that, as a
Level II licensee, it shall not distribute SGI Source or Licensee Source to
anyone, except a representative for any purpose whatsoever.
[ ] 3.3 LEVEL III LICENSE. SGI shall grant to Licensee the license set forth in
this Section 3.3 below, only if the box to the left and the "Level III License"
box on the signature page hereof are marked, and upon Licensee's payment of the
Level III License fee specified in Attachment A.
a. Level III License. Under this Level III License,
SGI hereby grants to licensees the license set forth in Sections 3.1 and 3.2
above, solely in accordance with the terms and conditions thereof.
-0-
0
x. Xxxxxxxxxxxx xx XXX Source and Licensee Source to
Third Parties. SGI hereby agrees that Licensee may distribute copies of SGI
Source and Licensee Source to third parties, including implementations that
Licensee has modified for compatibility with Licensee's Product, provided that
Licensee covenants and warrants that it shall deliver such SGI Source or
Licensee Source to a third party only if such third party is a current licensee
of SGI source, under an agreement that provides sufficient rights to such third
party that it may receive SGI Source and Licensee Source of the level and kind
that Licensee desires to provide. In all such cases, Licensee shall contact SGI
before Licensee's delivery of any SGI Source or Licensee Source, to verify the
foregoing. When Licensee contacts SGI for such verification, SGI shall provide
to Licensee a file, agreement or other identification number so that Licensee
may record such number as its authorization to deliver SGI Source and Licensee
Source to such recipient. When Licensee delivers SGI Source or Licensee Source
under the foregoing circumstances, it shall require that the recipient thereof
sign a written acknowledgment that such Source has been received under and is
subject to the terms and conditions of the SGI source code license agreement
that SGI has identified to Licensee in accordance with this Section 3.3b.
Licensee shall provide a copy of such signed acknowledgment to SGI within ten
(10) days thereafter.
3.4 DISTRIBUTION MECHANISM AND AGREEMENTS. Licensee may
distribute Conformance Certified Derived Programs directly to end-user
sublicensees, or through Licensee's OEMs, VARs or other distributors in the
chain of distribution to end-users, provided that Licensee shall require that
each such distributor enter into a written agreement containing terms and
conditions that are substantially equivalent to, and at least as protective as,
all terms and conditions of this agreement that are applicable to the
distribution and sublicensing of Derived Programs.
3.5 END USER SUBLICENSES. Licensee or its distributor shall
enter an End User License with each sublicensee that Licensee or its distributor
provides with a copy of a Derived Program. The End User License may be
Licensee's standard form agreement, and shall contain terms and conditions that
are substantially equivalent to the terms and conditions in Attachment C. In the
United States, Canada or other locations where copyright laws exist and may be
enforced to protect software, the End User License may be an enforceable,
written agreement that accompanies the package containing such Derived Program
and is fully visible to the sublicensee before the sublicensee opens the
package, which the sublicensee accepts by opening the package, or breaking a
seal. In all other locations, the End User License must be a written agreement
with the sublicensee signs.
3.6 DURATION OF SUBLICENSES. Sublicensees of Licensees may use
the Derived Programs for the term and in the manner provided for the End User
License. The license and obligations of the sublicensee set forth therein are
independent of this Agreement and will survive any termination of the
relationship between Licensee and SGI.
-6-
7
4.0 TRADEMARK LICENSE AND CONFORMANCE CERTIFICATION.
4.1 CONFORMANCE CERTIFICATION; BETA TEST PROGRAMS. Successful
completion of the applicable version of the Conformance Test is a requirement
for validating that a Derived Program is OpenGL Compatible, and may be
considered Conformance Certified. Licensee shall provide a written report,
signed by a corporate officer of Licensee, showing successful completion of the
Conformance Test, and shall provide to SGI one (1) copy of (i) such Conformance
Test results; (ii) the associated Conformance Certified Derived Programs, and
(iii) the marketing or sales collateral, product documentation and medial labels
which Licensee intends to use to depict or display the applicable Trademarks,
for archival purposes and auditing by SGI's test personnel. SGI may, at its sole
discretion, retain or destroy such copies. Notwithstanding the foregoing, and
anything else to the contrary in this Agreement, Licensee may distribute a
limited quantity of non-Conformance Certified copies of Derived Programs to its
customers for beta test program purposes, provided that (a) such copies are
clearly labeled as "beta" versions of the OpenGL which have not been Conformance
Certified, (b) the term of such beta test programs shall not be longer than
ninety (90) days, after which time Licensee shall require that its customers
return to Licensee all such beta test version copies distributed, and (c)
Licensee shall conduct only one (1) beta test program per major release of its
Derived Programs.
4.2 WAIVER PROCESS. Although SGI has made every reasonable
effort to make the Conformance Test exhaustive, the parties acknowledge that the
Conformance Test may not provide complete (i) coverage of the OpenGL API or (ii)
accuracy in determining that a Derived Program is OpenGL Compatible. In the
event of a conflict between the Specification and the Conformance Test, the
Specification shall prevail. If SGI determines that Licensee should use an
updated version of the Conformance Test in lieu of an earlier version provided
to Licensee, SGI will furnish such updated version to Licensee, under the terms
of this Agreement and at no additional charge to Licensee. SGI agrees that, in
each such instance of the release of an updated version of the Conformance Test,
Licensee may continue to use the previous version of the Conformance test for a
period not to exceed one hundred and twenty (120) days thereafter. However,
Licensee agrees that it shall only use such updated version for any Conformance
Certifications performed by Licensee on any new or revised Derived Programs
released by Licensee thereafter. If SGI releases a further updated version of
the Conformance Test, the aforementioned cycle of use shall again apply to the
two latest versions of the Conformance Test. If Licensee believes that the
Conformance Test erroneously or incompletely tests the OpenGL (pursuant to the
Specification), Licensee may submit a waiver request form detailing such error
to SGI. SGI shall review such request, and render a decision after a thorough
examination. SGI will use reasonable efforts to reply to requests for waivers
within thirty (30) days after receipt thereof. SGI shall notify Licensee in
writing of SGI's approval or denial of each such waiver request. SGI will
maintain a list of approved waivers to the Conformance Test, which list SGI
shall make available to Licensee upon its written request. The waiver request
procedure and forms are available separately from SGI. If SGI grants a waiver,
SGI shall either provide a correct
-7-
8
Conformance Test to Licensee within thirty (30) days thereafter, or will provide
a written approval to Licensee to release its OpenGL product as "Conformance
Certified with waiver," provided, however, that whenever SGI shall provide a
modified Conformance Test thereafter, licensee shall retest its Derived Program
within thirty (30) days thereafter to determine conformance with same.
4.3 TRADEMARKS LICENSE. On the condition precedent that
Licensee's Derived Program shall have been successfully Conformance Certified at
the applicable level under the Conformance Test, SGI hereby grants to Licensee,
only during the term of this Agreement, and only for that version of the Derived
Program, a limited, non-exclusive license to use Trademarks, solely in
accordance with this Section. This Trademark license applies only to binary
level Conformance Certified Derived Programs, derived from a specific version of
the OpenGL. Licensee shall use Trademarks whenever it distributes and/or markets
a Conformance Certified Derived Program. Licensee will submit any materials
prepared by Licensee that use SGI's name or Trademarks to SGI for approval prior
to release, unless such advertising materials were provided by SGI, or are in
accordance with SGI's trademark use guidelines. SGI reserves the right to reject
(and Licensee will not make use of) any such materials that SGI, in its
reasonable judgment, deems not in accordance with such guidelines or otherwise
potentially injurious to SGI's ownership interest in such Trademarks. Nothing in
this Agreement grants to Licensee any other license, or any title to or interest
in any Trademark, and Licensee agrees that it shall not use a trademark that is
confusingly similar to any Trademark. Licensee will immediately change or
discontinue any Trademark use as requested by SGI. Upon expiration or
termination of this Agreement, Licensee's license to use Trademarks shall
terminate immediately, and Licensee shall cease the use of SGI's name and
Trademarks and destroy all existing literature referencing same.
5.0 FEES; PAYMENT AND DELIVERY.
5.1 LICENSE FEE AND PAYMENT. In consideration of the licenses
granted by SGI hereunder, Licensee agrees to pay to SGI the amount of the
license fee specified on Attachment A. Initial license fees shall be due and
payable immediately upon execution hereof. The license fee so specified is only
for the release of OpenGL that is listed on Attachment A. SGI may make updated
versions of OpenGL available from time to time during the term hereof at
additional charge under a standard support program available from SGI (pursuant
to Attachment D if Licensee elects to purchase SGI's support services) or
separately.
5.2 LICENSE LEVEL UPGRADES. Licensee may at any time, by
written request to SGI, upgrade its license hereunder to a higher level (e.g.,
from a Level I License to a Level II License) for the same version of OpenGL by
paying to SGI the difference between the License fee paid to SGI for Licensee's
then current level license, and the new license level.
5.3 DERIVED PROGRAM DISTRIBUTION FEES AND PAYMENT. Licensee
shall pay to SGI the fee specified on Attachment A for each copy of a Derived
Program
-8-
9
used, or distributed by or on behalf of Licensee. Licensee shall pay
such distribution fees within forty-five (45) days after the end of each
calendar quarter for copies of Derived Programs put into use or distributed by
or for Licensee during such calendar quarter. Such distribution fee is for the
OpenGL release on which Licensee based the Derived Program. SGI may make updated
versions of the OpenGL and/or related products available from time to time
during the term hereof, and may specify different fees for the distribution of
copies of Derived Programs based on such updated version or other products.
5.4 TAXES AND THE LIKE. License fee payments are net and
exclusive of all taxes, insurance, shipping and other charges. Licensee agrees
to pay or reimburse SGI for all sales, use, value added or other taxes, duties,
importation fees or assessment that SGI incurs with respect to this Agreement
(excluding only taxes based on SGI's income).
5.5 DELIVERY. SGI shall deliver the items specified on
Attachment A in accordance with the delivery schedule thereon. SGI will make any
required media shipments F.O.B. Origin. Risk of loss and/or damage shall pass to
Licensee upon delivery thereof.
6.0 ADDITIONAL OBLIGATIONS OF LICENSEE. Licensee will, in connection
with its marketing and distribution of Derived Programs (i) provide user
documentation for such Derived Programs to its sublicensees, and (ii) make
technical support available to its sublicensees for such Derived Programs.
Licensee is solely responsible for providing software support relating to OpenGL
to its distributors and end user sublicensees, and SGI shall have no
responsibility therefor.
7.0 PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION.
7.1 DISCLOSURE OF INFORMATION. Each party agrees that it may
be desirable to disclose to the other party information and/or materials
containing Information. Information also may include confidential, proprietary
and/or trade secret information that is owned by third parties, which third
parties have granted sufficient rights to a party to permit that party to
provide such Information to the other party hereunder. For purposes of this
Section, references to either party shall include any applicable third party
owners/licensors of Information. Licensee agrees that SGI Source, the
Specification and Licensee Source constitute Information of SGI.
7.2 USE OF INFORMATION. Except as otherwise provided in this
Agreement, the parties provide Information hereunder solely for the purpose of
facilitating the relationship described in this Agreement, and the effectuation
of the licenses provided hereunder, and each party agrees (i) not to use any
Information of the other party for any purpose other than the foregoing, (ii) to
limit its disclosure of Information to employees and Representatives as having a
need to know such Information for purposes of this Agreement. Without limiting
the foregoing, Recipient agrees to treat Information of Discloser with at least
the same degree of care and protection that it uses with its own most valuable
confidential information and trade secrets. In a case where Recipient
-9-
10
provides Information of Discloser to a Representative, Recipient shall require
that such Representative enter a written agreement with Recipient containing
terms and conditions covering the disclosure, use and protection of such
Information that are at least as protective and restrictive as the applicable
terms and conditions of this Section 7.
7.3 EXCLUSIONS. Recipient shall have no obligation as to
Information that (i) is not provided in a tangible form and labeled as
confidential or proprietary, or if provided orally, reduced to writing,
designated as confidential or proprietary; and provided to Recipient within ten
(10) days thereafter, (ii) is known to Recipient at the time of disclosure, as
evidenced by documentation in Recipient's possession at the time of such
disclosure, (iii) Recipient independently develops, provided Recipient can show
that such development was accomplished by or for Recipient without the use of or
any reference to Information, (iv) becomes rightfully known to Recipient from
another source without confidentiality restriction on subsequent disclosure or
use, (v) is or becomes part of the pubic domain through no wrongful act of
Recipient, (vi) Recipient disclosure pursuant to any competently authorized
judicial or governmental request, requirement or order, provided that Recipient
takes reasonable steps to give Discloser sufficient prior notice to contest such
request, requirement or order, or (vii) Discloser furnishes to a third party
without a similar confidentiality restriction on such third party.
7.4 REPRODUCTION OF PROPRIETARY RIGHTS NOTICES. Recipient
shall reproduce and include in all copies of Information prepared by Recipient
the copyright notices and proprietary legends of Discloser as they appear
therein, as furnished to Recipient by Discloser. Recipient shall not remove any
proprietary, copyright, trade secret or other legend or notice from any form of
Information of Discloser. Any copyright notice used in connection with the SGI
Source, Documentation or Specifications shall not be deemed to imply that any
part of such SGI Source, Documentation or Specifications has been published or
has been placed in the public domain, or that the obligation to hold such
Information in confidence pursuant to this Section 7 has been removed in any
other manner.
7.5 CONFIDENTIALITY OF AGREEMENT. The parties agree that they
consider the terms, conditions and prices of this Agreement to be Information.
Further, neither party shall disclose such terms, conditions and pricing to any
third party without the express written permission of the other party, except as
may be required by law or regulation. However, SGI may, at any time and without
notice to Licensee, disclose any portion of any of its standard form agreements
and fees which SGI has incorporated herein to any third party.
7.6 INJUNCTIVE RELIEF. Each party acknowledges and agrees that
an actual or threatened unauthorized use, reproduction, distribution or
disclosure of the Information of the other party would cause irreparable harm
and significant injury to the other party, the degree of which would be
difficult to ascertain, and which would not be compensable by money damages
alone, and, therefore, each party (i) will have the right to enforce the terms
of this Agreement by specific performance and (ii) agrees that in such event the
issuance of an injunction by any court of competent jurisdiction would be an
-10-
11
appropriate remedy, without prejudice to any other rights and remedies that it
may have for the other party's breach of this Agreement.
7.7 NO OWNERSHIP RIGHTS TRANSFERRED. Licensee receives no
ownership interest in or title to any SGI Intellectual property of any kind,
including, but not limited to, Trademarks, an Implementation, the
Specifications, SGI Source, Licensee Source, Documentation, the OpenGL API,
Derived Programs, or copies of the foregoing, under or pursuant to this
Agreement and/or as a result of a Licensee's (i) possession and use, or (ii)
modification, enhancement, translation, compilation, derivation and the like, of
any of the foregoing under any circumstances whatsoever. SGI shall retain
ownership of the OpenGL, regardless of how Licensee has implemented or used any
portion of the OpenGL in any software programming language, or in any other
manner whatsoever. Notwithstanding the foregoing sentence, nothing in this
Agreement shall be construed to mean that Licensee conveys or transfers any
ownership interest in any software source code of Licensee to SGI hereunder,
provided that such software code (a) does not embody any part of the OpenGL, and
(b) is separable and discrete from SGI Source and Licensee Source.
7.8 DISPOSAL OF MEDIA. Before disposing of any media or
storage apparatus containing Information of the other party, a party will ensure
that it has completely erased or otherwise destroyed any such Information
contained by such media or stored in such apparatus.
7.9 SURVIVAL. The obligations of the parties under this
Section shall survive and continue after any termination of this Agreement or
termination of any license under this Agreement.
8.0 RECORD KEEPING AND REPORTS.
8.1 REPORTS. Licensee agrees to maintain records relating to
its conformance to the terms and conditions of this Agreement, and shall, on the
written request of SGI, made not more often than yearly, prepare and submit a
representation, signed by an officer, that it has met all of its material
obligations under this agreement since Licensee issued the last such report.
8.2 AUDIT. Licensee agrees to allow mutually acceptable
auditors to audit and analyze its relevant records to ensure compliance with all
terms of this Agreement. Licensee shall permit any such audit within fifteen
(15) days after receipt of SGI's written request to audit, during normal
business hours, at a mutually acceptable time. SGI will bear the cost of such an
audit unless the auditor discovers that Licensee has underpaid SGI by at least
ten percent (10%) of fees owned for the audited period, in which case Licensee
shall bear the cost of the audit.
-11-
12
9.0 PATENT, COPYRIGHT AND TRADEMARK PROTECTION.
9.1 INFRINGEMENT CLAIMS. SGI shall defend any suit or
proceeding brought against Licensee, but only to the extent that such suit or
proceeding is based on a claim that OpenGL, solely as furnished by SGI to
Licensee under this Agreement, constitutes direct infringement of any issued
patent, registered copyright or trademark (provided that such trademark has been
used by Licensee solely in accordance with this Agreement). SGI shall pay or
reimburse Licensee for damages (excluding exemplary damages) and costs finally
awarded therein against Licensee with respect to such matter, provided that
Licensee promptly informs and furnishes SGI with a copy of each communication,
notice or other action relating to the alleged infringement and provides to SGI
all authority, information and assistance necessary to settle, compromise or
litigate such suit or proceeding. Following notice of a claim or of a threatened
or actual suit, SGI may, without obligation to do so, at its sole option, (i)
procure for Licensee the right to continue to use OpenGL as furnished, (ii)
replace or modify same to make it non-infringing, or (iii) discontinue the
license for OpenGL and refund any fees paid for it, less the reasonable value
for use, determined by prorating the fees paid by Licensee for OpenGL based on a
thirty-six (36) month straight line depreciation, applied to the period of
actual possession.
9.2 EXCEPTIONS. SGI shall not be obligated to defend or be
liable for costs and damages if the infringement arises out of: (i) compliance
with Licensee's specifications, (ii) use or combination of OpenGL with software,
hardware or data not provided by SGI, (iii) use of other than the latest
unmodified release of OpenGL made available to Licensee by SGI, or Derived
Program based thereon, if such infringement would have been avoided by using
such release, (iv) a modification of OpenGL made by or for Licensee, or (v) use
of OpenGL after receiving notice, or having reason to believe, that OpenGL
infringes a patent or copyright of a third party, unless Licensee gives prompt
written notice thereof to SGI.
9.3 LIMITATION. THE FOREGOING STATES THE EXCLUSIVE REMEDY OF
LICENSEE AND THE ENTIRE INDEMNITY OF SGI WITH RESPECT TO INFRINGEMENT OF ANY
PATENT, COPYRIGHT OR TRADEMARK BY OPENGL. SGI SHALL HAVE NO LIABILITY WITH
RESPECT TO ANY OTHER PROPRIETARY OR THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
10.0 WARRANTY. SGI warrants that the Implementation, when compiled with
a one hundred percent (100%) ANSI C compatible compiler, will meet the
Specification, in all material respects. EXCEPT AS AFORESAID, SGI PROVIDES
OPENGL ON AN "AS-IS" BASIS ONLY, AND DOES NOT WARRANT OR REPRESENT THAT THE
OPERATION OF OPENGL WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY DEFECTS IN
OPENGL ARE CORRECTABLE OR WILL BE CORRECTED. SGI DISCLAIMS ALL WARRANTIES,
EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
-12-
13
11.0 LIMITATION OF LIABILITY. EXCEPT FOR MATTERS ARISING OUT OF A
PARTY'S DEFAULT OF SECTION 7 ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OF DATA,
INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS. FOR ANY CLAIM CONCERNING
PERFORMANCE OR NONPERFORMANCE BY SGI PURSUANT TO OR IN ANY OTHER WAY RELATED TO
THE SUBJECT MATTER OF THIS AGREEMENT, OR FOR DAMAGES FOR ANY CAUSE WHATSOEVER
AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT INCLUDING
NEGLIGENCE AND INFRINGEMENT, LICENSEE'S SOLE REMEDY SHALL BE ACTUAL DAMAGES UP
TO THE AMOUNT OF LICENSE FEES FOR THE ITEM AND/OR LICENSE THAT IS THE SUBJECT OF
THE CLAIM.
12.0 TERM OF AGREEMENT. This Agreement and all licenses granted
hereunder shall expire fifteen (15) years after the date first set forth above;
however, it and they also may be terminated earlier as provided below.
13.0 DEFAULT; TERMINATION.
13.1 AUTOMATIC TERMINATION. To the extent permitted by
applicable law, this Agreement and all licenses provided hereunder shall
automatically terminate without notice in the event that Licensee is liquidated
or dissolved.
13.2 DEFAULT. If either party fails to perform any material
obligation under this Agreement, then, upon thirty (30) days prior written
notice specifying such default, the other party may terminate this Agreement,
and all licenses provided hereunder, unless the breach specified in such notice
has been cured during such thirty (30) day period.
13.3 RETURN OF INFORMATION. Upon the termination or expiration
of this Agreement, Licensee shall, within ten (10) days thereafter, deliver to
SGI all Documentation containing SGI Source or Licensee Source, and shall render
unusable all SGI Source or Licensee Source placed in any storage apparatus. The
requirements of this Section 13.3 shall be considered to have been met with
regard to Licensee Source if all portions of OpenGL embodied therein have been
deleted.
13.4 CONTINUING OBLIGATIONS. The parties' rights, duties and
obligations under Sections 5 (FEES, PAYMENT AND DELIVERY), 7 (PROPRIETARY RIGHTS
AND CONFIDENTIAL INFORMATION), 9 (PATENT AND COPYRIGHT PROTECTION), 10 (WARRANTY
EXCLUSION), 11 (LIMITATION OF LIABILITY), 13.4 (Continuing Obligations), 14
(EXPORT), 15.1 (Governing Law) and 15.7 (Notices) shall continue after any
termination or expiration hereof.
-13-
14
13.5 NO LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES,
ARISING OUT OF OR RELATED TO TERMINATION OF THIS AGREEMENT FOR ANY REASON
WHATSOEVER.
14.0 EXPORT. Licensee understands that OpenGL is subject to regulation
by agencies of the U.S. Government, including the U.S. Department of Commerce,
which prohibits export or diversion of OpenGL to certain countries and parties,
and agrees that Licensee will not knowingly assist or participate in any such
diversion or other violation of applicable U.S. laws and regulations. Licensee
warrants that it will not license or otherwise provide OpenGL to anyone not
approved to receive controlled commodities under applicable U.S. laws and
regulations and that Licensee will abide by such laws and regulations. Licensee
shall hold SGI harmless and indemnify SGI from any breach of this Section 14 by
Licensee or any of its distributors.
15.0 GENERAL
15.1 GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California, excluding
its choice of law rules. The parties hereby agree that any dispute regarding the
interpretation or validity of, or otherwise arising out of, this Agreement shall
be subject to the exclusive jurisdiction of the California state courts of Santa
Xxxxx County, California (or, if there is federal jurisdiction, the United
States District Court for the Northern District of California), and the parties
agree to submit to the personal and exclusive jurisdiction and venue of these
courts. The parties hereby expressly waive any right to a jury trial and agree
that any proceeding hereunder shall be tried by a judge without a jury.
15.2 SEVERABILITY. In the event that any one or more of the
provisions of this Agreement shall for any reason be held by a court of
competent jurisdiction to be invalid, inoperative or unenforceable, as applied
to any particular case or under the law any state or of the United States of
America, such circumstances shall not have the effect of rendering the provision
or provisions in question invalid, inoperative or unenforceable in any other
jurisdiction or in any other case or circumstance, or of rendering any other
provision or provisions hereof invalid, inoperative or unenforceable, to the
extent which such provisions are not themselves actually invalid, inoperative or
unenforceable, and this Agreement, and the licenses granted by SGI hereunder, as
the case may be, shall be reformed and construed in any such jurisdiction or
case as if such invalid, inoperative and unenforceable provision had never been
contained herein, or so that such provisions would be valid, operative and
enforceable, to the maximum extent permitted in such jurisdiction or case.
15.3 ASSIGNMENT. This Agreement and the licenses granted
hereunder are to a specific entity or legal person, which does not include a
Licensee's corporate subsidiaries or affiliates. Licensee may not assign this
Agreement without the prior written consent of SGI, except to a purchaser of
all, or substantially all, of Licensee's assets.
-14-
15
15.4 NONWAIVER. The failure of either party to enforce at any
time any of the provisions hereof shall not be construed to be a waiver of the
right of such party thereafter to enforce any such provisions, except as
expressly provided herein.
15.5 NO AGENCY. This is a license agreement. No agency,
partnership, joint venture or other joint relationship is created hereby and
neither party has any authority of any kind to bind the other party in any
respect whatsoever.
15.6 FORCE MAJEURE. Except for Licensee's obligations under
Section 5 above, notwithstanding anything else in this Agreement, no default,
delay or failure to perform on the part of either party shall be considered a
breach of this Agreement, if such default, delay, or failure to perform is shown
to be due entirely to causes beyond reasonable control of the party charged with
a default, including, but not limited to, causes such as strikes, lockouts or
other labor disputes, riots, civil disturbances, actions or inactions of
governmental authorities or suppliers, epidemics, war, embargoes, severe
weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters,
supplier delay, or default of a common carrier.
15.7 NOTICES. Notices under this Agreement shall be sufficient
only if mailed by certified or registered mail, return receipt requested, or
personally delivered to the parties at their addresses first set forth above.
Notice by mail shall be deemed received three days after mailing. The parties
shall send notices to the addresses first, set forth above, and notices to SGI
shall be sent to the attention of "Corporate Legal Services."
15.8 SECTION HEADINGS. The parties agree that the Section
and/or paragraph headings used in this Agreement are for reference purposes only
and shall not be used in the interpretation of this Agreement.
15.9 ENTIRE AGREEMENT. This Agreement supersedes all
proposals, oral or written, all negotiations, conversations or discussions
between the parties relating to this Agreement and all past course of dealing
and/or industry custom. Each party acknowledges that it expressly understands
and agrees that (because there are no expectations to the contrary between the
parties) no usage of trade or other regular practice or method of dealing,
either within the computer industry, the software industry or between the
parties shall be used to modify, interpret, supplement or alter in any manner
the express terms of this Agreement or any part hereof.
-15-
16
One of the following license levels must be checked:
[ ] Level 1 License [X] Level II License [ ] Level III License
SILICON GRAPHICS, INC. LICENSEE
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxx
--------------------------------- --------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxx Xxxxxx
------------------------------------- ------------------------------------
Name (Print or Type) Name (Print or Type)
Director, MTI Software Licensing Chief Financial Officer
------------------------------------- ------------------------------------
Title Title
12/17/92 6/29/92
------------------------------------- ------------------------------------
Date Date
Agreement No.:
---------------------
-16-
17
FIRST AMENDMENT TO OPENGL LICENSE AGREEMENT
AND CONSENT TO ASSIGNMENT
The OpenGL License Agreement (the "Agreement") between Kubota Graphics
Corporation ("KGC", successor in interest to Kubota Pacific Computer, Inc. under
the Agreement) and Silicon Graphics, Inc. ("SGI") dated June 30, 1992 is hereby
modified by the terms and conditions of this First Amendment to the OpenGL
License Agreement and Consent to Assignment (the "First Amendment"). The
capitalized terms in this Amendment shall have the meaning defined in the
Agreement.
WHEREAS, KGC and SGI have entered into the Agreement, and now desire to modify
the Agreement to provide that KGC's license, rights and interest therein be
assigned to a third party;
NOW, therefore, inconsideration of the promises set forth below the parties
agree to the following:
1. SGI hereby consents to the transfer and assignment by KGC of all of KGC's
rights, duties and obligations under the Agreement to AccelGraphics, Inc.
("AccelGraphics"), a California corporation, located at 0000 Xxxxx Xxxxxx, Xxxxx
Xxxxx, XX 00000-0000, upon KGC's delivery to AccelGraphics of all copies,
regardless of the form of embodiment, of OpenGL (including Source and Derived
Programs) in KGC's possession.
2. AccelGraphics hereby agrees to assume and perform all the obligations and
duties of KGC under the Agreement.
3. In the event of any inconsistency between this Amendment and the Agreement,
the terms and conditions of this Amendment shall prevail, notwithstanding
anything to the contrary in the Agreement. Unless explicitly modified herein,
all terms, conditions and provisions of the Agreement shall continue in full
force and effect.
SILICON GRAPHICS, INC. ACCELGRAPHICS, INC.
By: /s/ X.X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------------- ------------------------------
X.X. Xxxxxx Xxxxxxx X. Xxxx
----------------------------------- ----------------------------------
Name (Print or Type) Name (Print or Type)
Director of Engineering President and CEO
----------------------------------- ----------------------------------
Title Title
1/26/95 2/1/95
----------------------------------- ----------------------------------
Date Date
KUBOTA GRAPHICS CORPORATION
By: /s/ X.X. Xxxxxx
-------------------------------
X.X. Xxxxxx
-----------------------------------
Name (Print or Type)
CFO
-----------------------------------
18
Title
12/31/94
-----------------------------------
Date
19
Exhibit 10.13b
SECOND AMENDMENT TO THE OPENGL(R) LICENSE AGREEMENT
The OpenGL License Agreement (the "License Agreement") between AccelGraphics,
Inc. ("Licensee", successor in interest to Kubota Pacific Computer, Inc., Kubota
Corporation and Kubota Graphics Corporation) and Silicon Graphics, Inc. ("SGI"),
dated June 30, 1992, is hereby modified by the terms and conditions set forth in
this Second Amendment, (the "Second Amendment"), dated October 31, 1996.
Capitalized terms used in this Second Amendment shall have the meaning defined
in the License Agreement. Unless explicitly modified herein, all terms,
conditions, and provisions of the License Agreement shall continue unchanged and
in full force and effect.
WHEREAS, Kubota Pacific Computer, Inc. and SGI originally entered into the
Licensee Agreement;
WHEREAS, Kubota Corporation and Kubota Graphics Corporation agreed to assume or
guarantee certain obligations of Kubota Pacific Computer, Inc. under Addendum
Number One to the OpenGL License Agreement;
WHEREAS, Licensee agreed to assume the obligations of Kubota Corporation and
Kubota Graphics Corporation under the First Amendment to OpenGL License
Agreement and Consent to assignment;
WHEREAS Licensee and SGI now desire to modify certain terms of the License
Agreement so that Licensee can develop, market and distribute in binary form an
implementation of OpenGL for the PC platform;
WHEREAS, SGI is developing, together with one or more companies with expertise
in the PC platform, a new implementation of OpenGL for the PC platform and
Licensee is willing to evaluate SGI's implementation of OpenGL for the PC
platform and to consider substituting such implementation for Licensee's
implementation of OpenGL for the PC platform;
NOW, therefore, in consideration of the promises set forth below the parties
agree to the following:
1. [* * * * *] are designed to operate on any PC platform listed on
Exhibit 1 attached to this Second Amendment and which are bundled with
the products listed on Exhibit 1 attached to this Second Amendment.
2. [* * * * *], Licensee agrees to comply with both Section 4.3 of the
License Agreement and with (a) the OpenGL Promotional Guidelines
attached to this Second Amendment as Exhibit 2, (b) the OpenGL Logo
Style Guidelines attached to this Second Amendment as Exhibit 3, and
(c) the OpenGL Trademark Usage Guidelines attached to this Second
Amendment as Exhibit 4. In the event of any conflict between Section
4.3 of the License Agreement and either the OpenGL Promotional
Guidelines, the OpenGL Logo Style Guidelines or the OpenGL Trademark
Usage Guidelines, the foregoing guidelines shall prevail.
20
3. In the event that SGI elects to provide to Licensee, either directly or
through an authorized distributor, an Implementation developed for use
on a specified PC platform (the "PC Implementation"), Licensee agrees
to evaluate such PC Implementation in good faith pursuant to early
access or beta test agreements with SGI or the authorized distributor,
as appropriate. In the event that Licensee desires to license the PC
Implementation, Licensee and SGI or the authorized distributor, as
appropriate, [* * * * *]:
(a) Be separate and apart from the License Agreement for OpenGL if
SGI determines that an amendment to the License Agreement is
inappropriate;
(b) permit Licensee to substitute and replace the PC
Implementation for any Derived Programs of Licensee which are
designed to operate on the same PC platform as the PC
Implementation;
(c) [* * * * *];
(d) [* * * * *]
(e) include guidelines substantially similar to (i) the OpenGL
Promotional Guidelines attached to this Second Amendment as
Exhibit 2, (ii) the OpenGL Logo Style Guidelines attached to
this Second Amendment as Exhibit 3, and (iii) the OpenGL
Trademark Usage Guidelines attached to this Second Amendment
as Exhibit 4, provided that such guidelines may be modified by
SGI to cover any new trademarks or logos that SGI selects for
the PC Xxxxxxxxxxxxxx.
0. XXX agrees not to assert a claim for patent infringement against
Licensee under existing and future United States patents owned and
licensable by SGI but only to the extent necessary for Licensee:
(i) to exercise the copyright licenses granted by SGI for
Conformance Certified Derived Programs; and
(ii) to make, use, lease, sell or otherwise transfer any apparatus,
device (including semiconductor device), portion of a system
or system that includes and implements Conformance Certified
Derived Programs.
In no event shall this covenant apply to any apparatus, device, portion
of a system or system that does not include Conformance Certified
Derived Programs even if such apparatus, device, portion of a system or
system is designed to implement Conformance Certified Derived Programs.
5. In the event that Licensee and SGI or an authorized distributor enter
into an agreement for the PC implementation, within thirty (30) days of
the execution thereof SGI and Licensee will jointly issue a press
release in the form mutually agreed upon by the parties.
-2-
21
SILICON GRAPHICS, INC. ACCELGRAPHICS, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxx
----------------------------- -----------------------------
Xxxx Xxxxxx Xxxxxxx X. Xxxx
--------------------------------- ---------------------------------
NAME (PRINT OR TYPE) NAME (PRINT OR TYPE)
V.P. & Chief Engineer President & CEO
--------------------------------- ---------------------------------
TITLE TITLE
11/15/96 11/12/96
--------------------------------- ---------------------------------
DATE DATE
-3-
22
EXHIBIT 1
APPROVED PC PLATFORMS
Microsoft Windows 95 on:
Intel X86/Pentium
DEC Alpha
Motorola Power
Microsoft Windows NT on:
Intel X86/Pentium
DEC Alpha
Motorola Power PC
-4-
23
EXHIBIT 2
OPENGL(R) PROMOTIONAL GUIDELINES
1. TRADEMARK USE REQUIREMENTS. Any use by Licensee of Trademarks shall conform
to the then-current version of SGI's OpenGL Trademark Guidelines document and
SGI's Logo Style Guidelines document, both of which SGI shall make available to
Licensee via the World Wide Web page at
xxxx://xxx.xxx.xxx/xxxx/xxxxxxxx.xxxx.xxxx. Licensee shall submit to SGI for its
prior written approval any materials of Licensee in which Trademarks are used,
except for time-critical marketing collateral that is on tight deadlines such as
press releases, data sheets, and direct mailers. For such collateral, Licensee
will use the usage-guidelines supplied by SGI but will proceed without obtaining
prior approval (except that press releases which mention SGI will be subject to
prior approval). SGI is free to audit usage of Trademarks on an on-going basis
and, upon request, Licensee will provide SGI with samples of collateral for
purposes of conducting such audits. If SGI determines that Licensee is not using
the Trademarks correctly, SGI has the right to demand prior approval on all
items, including the above mentioned time critical materials. Licensee will then
provide three (3) business days prior notice to SGI on such documents. Licensee
agrees that during these three (3) business days SGI may show cause for
modification of collateral with respect to references to Trademarks. If SGI
chooses not to respond, Licensee will be free to proceed without gaining prior
approval.
2. PRESS RELEASES. Within thirty (30) days after the Effective Date, Licensee
shall issue a press release announcing that Licensee has entered a license
agreement for OpenGL with SGI, and describing Licensee's plans for distribution
and support of OpenGL Compatible products.
3. WORLD WIDE WEB (WWW) SITES.
Licensee shall create and maintain a direct hyperlink from its primary external
WWW site to a web page that features information about Licensee's OpenGL
Compatible product offerings. Such web page shall be consistent in content and
prominence with any other web page of Licensee that includes information
regarding similar products provided by Licensee. Licensee shall further create
and maintain a direct hyperlink from its primary external WWW site to SGI's
OpenGL WWW page at xxxx://xxx.xxx.xxx/Xxxxxxxxxx/XxxxXX using the OpenGL 1ogo
specified in SGI's OpenGL Logo Style Guidelines document as the hyperlink
graphic. Alternatively, such link may be provided by Licensee in its OpenGL
related web page. Licensee shall submit to SGI for its prior written approval a
copy of Licensee's proposed WWW OpenGL page.
Licensee agrees and acknowledges that SGI may create a hyperlink from SGI's
OpenGL WWW page to Licensee's OpenGL web page.
4. MARKETING COLLATERAL, DOCUMENTATION AND ADVERTISING MATERIALS. All marketing
collateral, documentation and advertising materials of Licensee related to
Licensee's OpenGL Compatible product, including data sheets, brochures, manuals
and promotion items or the like, shall conform to the then-current version of
SGI's OpenGL Trademark and Logo Style Requirements document where it makes
references to OpenGL.
-5-
24
5. TRADE SHOWS. Licensee shall prominently display the applicable OpenGL 1ogo in
any trade show booth of Licensee in which Licensee provides information about
Licensee's OpenGL Compatible product.
6. DEVELOPER CONFERENCES. SGI understands that Licensee does not currently offer
developer's conferences. However, if Licensee offers developer's conferences in
the future, Licensee shall offer at least one OpenGL training course during
Licensee's primary developer's conference within one (1) year after beginning
such conferences. SGI will, at Licensee's expense and under mutually acceptable
terms and conditions, assist Licensee in acquiring user training expertise and
materials.
7. PRODUCT PACKAGING. Licensee shall prominently display the OpenGL 1ogo on any
media that Licensee uses to distribute its OpenGL Compatible product, and on any
related packaging materials.
SGI understands that Licensee does not currently prepare external packaging for
its OpenGL Compatible Products. However, if Licensee prepares any packaging for
any of its products that are designed to operate with, or which incorporates,
Licensee's OpenGL Compatible product, all external packaging for such product
shall display the OpenGL 1ogo.
8. PARTICIPATION IN PROMOTIONAL ACTIVITIES. Licensee agrees that SGI may issue
press releases and distribute marketing collateral that include Licensee's name
and OpenGL Compatible product descriptions. SGI agrees to use Licensee's trade
names and trademarks in accordance with Licensee's reasonable written
guidelines, if made available to SGI in advance.
-6-
25
Exhibit 3
OpenGL(R) Logo Style Guidelines
The attached OpenGL Logo Style Guidelines are current as of the date of the
Agreement to which they are attached. Any use by Licensee of Trademarks shall
conform to the then current version of SGI's Logo Style Guidelines document,
which SGI shall make available to Licensee via the World Wide Web page at
xxxx://xxx.xxx.xxx/xxxx/xxxxxxxx.xxxx.xxxx.
-7-
26
[NEED INSERT GRAPHICS LOGO STYLE PAGES]
-8-
27
Exhibit 4
OpenGL(R) Trademark Usage Guidelines
The attached OpenGL Trademark Usage Guidelines are current as of the date of the
Agreement to which they are attached. Any use by Licensee of Trademarks shall
conform to the then-current version of SGI's Trademark Usage Guidelines
document, which SGI shall make available to Licensee via the World Wide Web page
at xxxx://xxx.xxx.xxx/xxxx/xxxxxxxx.xxxx.xxxx.
-9-
28
SILICON GRAPHICS, INC.
OPENGL(R) TRADEMARK GUIDELINES
Silicon Graphics' trademarks are the principal means by which Silicon Graphics
identifies itself, its products and activities to the public, and by which the
public, in turn, has come to recognize our company, products and activities. Our
great success is due in part to the favorable recognition we have received under
our company name, and product trademarks such as OpenGL(R), Challenge(R), Indigo
2 TM, MIPS(R), OnyxTM, IRIS(R), and IRIXTM.
To attain this recognition, Silicon Graphics invests considerable resources into
creating, promoting and protecting its trademarks.
As an OpenGL licensee, you must use the OpenGL(R) trademark in accordance with
the following Guidelines, as provided by your license agreement. These
Guidelines are intended to assure proper use of the OpenGL trademark, to
preserve its distinctiveness and enhance its value for our mutual benefit.
1. USE THE OPENGL TRADEMARK IN ITS PROPER FORM.
The OpenGL trademark must always appear as: OpenGL. Leave no space between
"Open" and "GL." The O, G and L must always be capitalized; the p, e, and n in
lower case. Do not display the xxxx in any unusual typeface, or in any other
manner that might blur its distinctiveness.
2. IDENTIFY THE OPENGL TRADEMARK WITH THE (R) TRADEMARK NOTICE.
The "(R)" trademark notice indicates that the OpenGL trademark is registered
with the U.S. Patent and Trademark Office. As discussed below, always use the
"(R)" with the OpenGL trademark in the OpenGL trademark's first and most
prominent appearance in any material.
Place the "(R)" notice immediately following the OpenGL trademark, without any
space in between the xxxx and the notice (i.e., OpenGL(R)). Always place the
notice before the generic term that should follow the trademark (e.g., OpenGL(R)
application programming interface), as it acts as a dividing line between the
trademark and the proper name of the product or service to which the xxxx
relates.
3. USE THE (R) TRADEMARK NOTICE WITH THE TRADEMARK'S FIRST AND/OR MOST PROMINENT
APPEARANCE(S) IN ANY MATERIAL.
To best serve its purpose, the trademark notice must always accompany the
trademark's first and/or most prominent appearance in a document, program, on
packaging, etc. You need not use the notice each time the xxxx appears
thereafter.
-10-
29
4. ATTRIBUTE PROPERLY OPENGL, AND ALL OTHER SILICON GRAPHICS TRADEMARKS USED, IN
SEPARATE TRADEMARK ATTRIBUTION SECTION.
Each document in which the OpenGL trademark appears must contain a trademark
attribution sentence identifying OpenGL as a Silicon Graphics registered
trademark as follows:
OpenGL is a registered trademark of Silicon Graphics, Inc.
The notice must also include any other Silicon Graphics trademarks that appear
in the text:
OpenGL, Silicon Graphics, Indigo, and the Silicon Graphics Logo are registered
trademarks, and Challenge and Onyx are trademarks, of Silicon Graphics, Inc.
The attribution sentence should appear below the, document's copyright notice,
typically opposite the title page of a book, or at the end of a dam sheet or
marketing brochure.
5. USE THE OPENGL TRADEMARK ACCURATELY.
As an OpenGL licensee, you must use the OpenGL trademark to indicate accurately
Silicon Graphics' OpenGL technology, specifications, and related products and
services, and/or your products' or services' compliance or compatibility
therewith.
You may not use the trademark for any other purpose. Do not use the trademark to
imply that Silicon Graphics endorses, or is connected with, your company, except
to the extent provided by your OpenGL license agreement with Silicon Graphics.
6. DO NOT USE THE OPENGL TRADEMARK AS PART OF ANY OTHER TRADEMARK OR COMPANY
NAME.
OpenGL licensees may not incorporate the OpenGL trademark into licensees' own
trademarks, service marks, or trade names. This includes both the xxxx as a
whole, and any portion thereof (such as "GL") that others would associate with
the OpenGL trademark.
Licensees must separate the OpenGL trademark from the licensee's trademark with
wording sufficient to distinguish it clearly. Use it only as an indication of
compatibility, distinct from the licensee's product or company name.
Examples
Incorrect
- Joe's OpenGL Accelerator(TM)
- Super Duper OpenGL(TM)
- OpenGL Master Blaster(TM)
-11-
30
Correct
- Joe's Accelerator(TM) for OpenGL(R)
- Super Duper(TM) for OpenGL(R)
- Master Blaster(TM) for OpenGL(R)
7. ALWAYS USE THE OPENGL TRADEMARK PROPERLY IN TEXT.
The OpenGL trademark indicates products and services connected with Silicon
Graphics' OpenGL technology. To preserve its distinctiveness and purpose, please
follow the following rules when using the xxxx in text:
- Always use the OpenGL trademark as an adjective, not a noun.
- Never hyphenate the OpenGL trademark.
- Never pluralize the OpenGL trademark.
- Never render the OpenGL trademark possessive by use of an apostrophe.
- Never combine the OpenGL trademark with any other designation.
Examples
Incorrect
- Acme now offers the OpenGL(R).
- Bftzplk(TM) is OpenGL-compatible.
- We harness OpenGL's power.
Correct
- Acme now offers the OpenGL(R) API.
- Bftzplk(TM) is compatible with the OpenGL(R) API. or Bflzplk(TM) is OpenGL(R)
API-compatible.
- We harness the power of OpenGL(R) technology, or We harness the OpenGL(R)
API's power.
8. PLEASE CALL SILICON GRAPHICS WITH ANY QUESTIONS ABOUT THESE GUIDELINES.
Silicon Graphics is happy to assist you with matters addressed by these
GuideLines, or other questions about Silicon Graphics trademarks. Feel free to
contact Silicon Graphics Trademark Counsel Xxx Xxxxxxxx by phone (000-000-0000)
or mail (Silicon Graphics, 0000 Xxxxx Xxxxxxxxx Xxxx., Mail stop 00-000,
Xxxxxxxx Xxxx, XX 00000).
Only Silicon Graphics Trademark Counsel can grant authorization for trademark
uses and related issues not in accord with these GuideLines. Silicon Graphics
field offices or other personnel do not have this authority. Accordingly, where
such permission or exceptions are sought, they must be brought to the attention
of Silicon Graphics Trademark Counsel.
-12-
31
THIRD AMENDMENT TO THE OPENGL(R) LICENSE AGREEMENT
The OpenGL License Agreement (the "License Agreement") between AccelGraphics,
Inc. ("Licensee", successor in interest to Kubota Pacific Computer, Inc., Kubota
Corporation and Kubota Graphics Corporation) and Silicon Graphics, Inc. ("SGI"),
dated June 30, 1992, as amended, is hereby modified by the terms and conditions
set forth in this Third Amendment (the "Third Amendment"), dated December 9,
1996. Capitalized terms used in this Third Amendment shall have the meaning
defined in the License Agreement.
WHEREAS, Kubota Pacific Computer, Inc. and SGI originally entered into the
Licensee Agreement;
WHEREAS, Kubota Corporation and Kubota Graphics Corporation agreed to assume or
guarantee certain obligations of Kubota Pacific Computer, Inc. under Addendum
Number One to the OpenGL License Agreement;
WHEREAS, Licensee agreed to assume the obligations of Kubota Corporation and
Kubota Graphics Corporation under the First Amendment to permit Licensee to
develop, market and distribute in binary form an implementation of OpenGL for
the PC platform; and
WHEREAS, Licensee and SGI agreed to modify the Licensee Agreement under the
Second Amendment to OpenGL License Agreement to permit Licensee to develop,
market and distribute in binary form an implementation of OpenGL for the PC
platform; and
WHEREAS Licensee and SGI now desire to modify certain terms of the License
Agreement so that Licensee can obtain a Level III OpenGL license.
NOW, therefore, in consideration of the promises set forth below the parties
agree to the following:
1. SGI hereby grants to Licensee a Level III License pursuant to Section
3.3 of the License Agreement. Effective as of the date of this Third
Amendment, all terms, conditions, rights and restrictions contained in
Section 3.3 of the License Agreement shall apply to Licensee. For
example Licensee may distribute SGI Source or Licensee Source to Level
II licensees in the manner specified by Section 3.3 of the License
Agreement.
2. [* * * * *].
-13-
32
3. Unless explicitly modified herein, all terms, conditions, and
provisions of the License Agreement, as amended, shall continue
unchanged and in full force and effect. for example, all requirements
of Section 4.0 (Trademark License and Conformance Certification) as
amended by item 2 of the Second Amendment to OpenGL License Agreement
shall continue to apply.
SILICON GRAPHICS, INC. ACCELGRAPHICS, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxx
---------------------------- -------------------------------
Xxxxx Xxxxx Xxxxx X. Xxxx
-------------------------------- -----------------------------------
NAME (PRINT OR TYPE) NAME (PRINT OR TYPE)
V.P. SGI Chief Financial Officer
-------------------------------- -----------------------------------
TITLE TITLE
12/17/96 12/10/96
-------------------------------- -----------------------------------
DATE DATE
-14-
33
ATTACHMENT A
Agreement No:
License Level:
------------------------------------------------------------------------------------------------------------------------------
Per Copy
Distribution
Fee
OpenGL(TM) for Derived
Item Description of Items License Fee Products
------------------------------------------------------------------------------------------------------------------------------
1 OpenGL/GL/X Server Protocol/GLU Release 1.0 Specification [* *] [* *]
------------------------------------------------------------------------------------------------------------------------------
2 OpenGL GL/X Client Side Library Source Code [* *]
------------------------------------------------------------------------------------------------------------------------------
3 OpenGL Sample X Server Extension Source Code [* *]
------------------------------------------------------------------------------------------------------------------------------
4 OpenGL Release 1.0 Utility Library Source Code [* *]
------------------------------------------------------------------------------------------------------------------------------
5 OpenGL Release 1.0 Hard Copy and Machine Readable Documentation [* *]
------------------------------------------------------------------------------------------------------------------------------
6 OpenGL Release 1.0 Compliance Suite Test Source Code [* *]
------------------------------------------------------------------------------------------------------------------------------
7 OpenGL Fortran/ADA Binding Source Code [* *]
------------------------------------------------------------------------------------------------------------------------------
8 OpenGL Sample Programs [* *]
------------------------------------------------------------------------------------------------------------------------------
9 OpenGL Release 1.0 Sample Implementation Source Code [* *]
------------------------------------------------------------------------------------------------------------------------------
10 OpenGL Optimization and Porting Guide [* *]
------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
SOURCE MACHINE(S) SCHEDULE
-----------------------------------------------------------------------------------------------------------------------------
Source Machine
Item Model Type and Description S/N
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
Description of Licensee Products:
Licensee (by/date):
SGI (by/date):
34
ADDENDUM NUMBER ONE TO THE
OPENGL(TM) LICENSE AGREEMENT
The OpenGL(TM) License Agreement (the "Agreement") between Kubota Pacific
Computer, Inc. ("KPC") and Silicon Graphics, Inc. ("SGI") of even date with this
Addendum Number One ("Addendum") is hereby modified by the terms and conditions
set forth in this Addendum below. Capitalized terms used in this Addendum shall
have the meaning defined in the Agreement. Unless explicitly modified herein,
all terms, conditions and provisions of the Agreement shall continue in full
force and effect.
WHEREAS, KPC and SGI have entered into the above-referenced Agreement;
WHEREAS, the parties have agreed to extend the rights, duties and obligations
under the Agreement to the parent company of KPC, Kubota Corportion ("Kubota"),
a corportion with a place of business at 00-0, Xxxxxxxxxxxxxxx 0-xxxxx,
Xxxxxx-xxxxx Xxxxxx Computer, Inc. ("KCI"), a corporation with a place of
business at Xxxxx 000, XXXXX; 0-0-0 Xxxxxxxx Xxxxxxxx-xx, Xxxxx 000 XXXXX.
NOW, therefore, in consideration of the promises set forth below the parties
agree to the following:
1. SGI hereby consents to allow Kubota and KCI to participate in and avail
themselves of all the rights and benefits provided for in the Agreement,
provided that:
(i) Kubota agrees to perform all duties and obligations and observe all
the terms and conditions of the Agreement; and
(ii) KPC and Kubota guarantee KCI's performance of all the duties and
obligations set forth in the Agreement.
2. In the event of any inconsistency between this Addendum and the Agreement,
the terms and conditions of this Addendum shall prevail, notwithstanding
anything to the contrary in the Agreement.
SILICON GRAPHICS, INC. KUBOTA PACIFIC COMPUTER, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ X.X. Xxxxxx
------------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx X.X. Xxxxxx
----------------------------------------- -----------------------------------
Name (Print or Type) Name (Print or Type)
Director, MTI Software Licensing CFO
----------------------------------------- -----------------------------------
Title Title
12/17/92 6/30/93
----------------------------------------- -----------------------------------
Date Date
KUBOTA CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Xxxxxxxx Xxxxxx
-----------------------------------
Name (Print or Type)
General Manager, Office of Computer
-----------------------------------
Business Kubota Corp.
-----------------------------------
Title
-----------------------------------
Date
