EXHIBIT 10(f)
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Agreement No. RPD-5680
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REFERENCE DESIGN LICENSE AGREEMENT
THIS REFERENCE DESIGN LICENSE AGREEMENT (the "Agreement") is made effective
this 11th day of May , 1999 (the "Effective Date") by and
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between Sun Microsystems, Inc., a Delaware corporation with principal offices
located at 000 Xxx Xxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 ("Sun"), and
Pinnacle Data Systems, Inc., an Ohio corporation with principal offices located
at 0000 Xxxx Xxxx, Xxxxxxxx, Xxxx 00000 ("Licensee").
A. WHEREAS, the Microelectronics division of Sun ("SME") possesses
certain Licensed Technology (as defined below) relating to. the design,
development and manufacture of the Reference Design (as defined below); and
B. WHEREAS, Licensee desires to develop, manufacture and sell to a
specific customer Licensee Products (as defined below) based upon and using
Licensed Technology; and
C. WHEREAS, Sun desires to grant limited license rights to Licensee
for such purposes, all on the terms and subject to the conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth below, the parties hereto agree as follows:
1. DEFINITIONS.
1.1 "Affiliate" means a business entity or entities controlled
by, under common control with or controlling a party to this
Agreement.
1.2 "CCT" means SME's AXmp product excluding the I/O board
portion.
1.3 "Confidential Information" means (i) all technical
information which Sun discloses to Licensee under this
Agreement, (ii) that technical information of Licensee or
business information of either party which a party discloses
to the other pursuant to this Agreement which is designated
as "confidential" or "proprietary" (or with words of similar
meaning) in writing by the disclosing party, or if disclosed
orally, designated as "confidential" or "proprietary" (or
with words of similar meaning) at the time of disclosure,
(iii) any source code provided under this Agreement, and
(iv) the terms and conditions of this Agreement.
1.4 "Deliverables" means the items listed in Exhibit A.
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1.5 Derivative Technology" means technology and information
developed for use with or derived from the Licensed
Technology by Licensee, excluding the Licensed Technology.
1.6 "Designated Customer(s)" means the customer(s) identified in
Exhibit B. Designated Customer(s) may be added or deleted only
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with the prior written consent of Sun.
1.7 "Designated Equipment" means an equipment configuration
comprising a single central processing unit, whether or not
consisting of multiple microprocessors ("CPU"), as
identified in Exhibit A.
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1.8 "Designated Manufacturer" means the manufacturer identified
in Exhibit B.
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1.9 "Designated Site" means the location controlled by Licensee
and identified in Exhibit B where Licensee will use the
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Licensed Technology.
1.10 "Error Corrections" means changes or additions to the
Licensed Technology made solely to: (i) establish material
conformity to the published specifications for the Licensed
Technology; or (ii) eliminate or avoid the occurrence or
effect of an error in the License Technology.
1.11 "Intellectual Property Rights" means all intellectual
property rights worldwide (but specifically excluding
trademarks, service marks, trade dress, trade names, and
design patent rights) under statutory or common law or by
contract and whether or not perfected, including all (i)
patent rights; (ii) rights associated with works of
authorship including copyrights and mask work rights;
(iii) rights relating to the protection of trade secrets and
confidential information; (iv) any right analogous to those
set forth herein and any other proprietary rights relating
to intangible property, now existing, or hereafter filed,
issued or acquired.
1.12 "Licensee Product" means the product designed by or for
Licensee for the Designated Customer(s) which incorporates
the Licensed Technology and Derivative Technology and which
meets the specifications of the "DSC Fastbox Design".
1.13 "Licensed Technology" means the technology and information
contained within or provided in connection with the
Deliverables for the Reference Design.
1.14 "OBP/POST" means Sun's Open Boot PROM and Power On Self Test
software identified in Exhibit A.
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1.15 "Product Documentation" means those materials to be
identified in writing by Licensee constituting the subset of
the Licensed Technology which Licensee plans to distribute
for use with Licensee Product. Licensee must receive Sun's
written approval prior to any distribution of the Product
Documentation.
1.16 "Reference Design" means SME's AXmp I/O board and complex A
board.
1.17 "Upgrades" means any enhancements, improvements and/or
modifications to OBP/POST, other than Error Corrections,
made by or for Sun which, together with OBP/POST, Sun
classifies as a new version of OBP/POST.
2. OWNERSHIP.
2.1 Licensed Technology. Licensee acknowledges and agrees that,
as between the parties, Sun is and will remain the sole and
exclusive owner of all right, title and interest in the
Licensed Technology and all associated Intellectual Property
Rights and that Licensee acquires no rights therein other
than the license rights specifically granted in this
Agreement.
2.2 Derivative Technology. Subject to Sun's Intellectual
Property Rights in the Licensed Technology, Sun acknowledges
and agrees that Licensee is and will remain the sole and
exclusive owner of all right, title and interest in the
Derivative Technology and all associated Intellectual
Property Rights and that Sun acquires no rights therein
pursuant to this Agreement.
2.3 Jointly-Developed Technology. Although the parties do not
anticipate joint development of technology hereunder, in the
event of joint development, all right, title,
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and interest in all ideas, inventions or technology which are
made, created, developed, written, or conceived jointly by
personnel of both parties in the course of, arising out of,
or as a result of work done under this Agreement, and all
associated Intellectual Property Rights, will be owned
jointly by Sun and Licensee with each party having the
undivided right to exploit and grant licenses to such ideas,
inventions and technology and associated Intellectual
Property Rights without accounting to the other party for
remuneration received. The parties will negotiate in good
faith, on a case-by-case basis, rights to file and prosecute
patent applications.
2.4 Further Assurances. Each party will cooperate with the other
and take reasonable actions and execute necessary
agreements, instruments, and documents to perfect the
other's ownership interest in accordance with the
allocations set forth in this Section 2, including, without
limitation, the execution of necessary and appropriate
instruments of assignment.
3. GRANT OF LICENSES.
3.1 Licensed Technology. Subject to Licensee's payment
obligations as set forth in Section 7, Sun hereby grants to
Licensee a nonexclusive, nontransferable and worldwide
license under Sun's Intellectual Property Rights in the
Licensed Technology to (i) use, copy and modify the Licensed
Technology at the Designated Site for the purposes of
designing and developing the Licensee Product; provided,
however that Licensee may not modify the signal routings of
the Complex A portion of the Reference Design except for the
power connector and the signals to the CPU module; (ii) copy
and incorporate Licensed Technology (other than OBP/POST,
except as permitted in Section 3.2 below) into the Licensee
Product, (iii) make, have made and distribute the Licensee
Product designed with and/or incorporating (as herein
permitted) Licensed Technology, but such distribution may
only be to the Designated Customer(s), and (iv) use the
Licensed Technology to maintain and support Licensee
Products. No license is granted for any other purpose
and any other uses by Licensee, including but not limited to
Licensee designing, developing or distributing a product
incorporating all or a portion of the Licensed Technology or
Derivative Technology that is not designed to meet the "DSC
Fastbox Design" specifications or distributing the Licensee
Product to a person or entity other than the Designated
Customer(s), shall constitute a material breach of this
Agreement.
3.2 OBP/POST. Sun grants to Licensee a nonexclusive and
nontransferable license under Sun's Intellectual Property
Rights in OBP/POST to (i) use, modify and create derivative
works of the OBP/POST source code (ii) compile the OBP/POST
and/or derivative source code into object code, (iii) copy,
sublicense and distribute OBP/POST and Licensee's
derivatives thereof worldwide only in object code PROM
format and only for use in the Licensee Product. Licensee
shall use and modify source code of OBP/POST only on the
Designated Equipment at the Designated Site. Licensee shall
have no right to distribute OBP/POST except as provided in
this Section 3.2. Sun shall own all Error Corrections for
OBP/POST made by or for Licensee and Licensee shall promptly
upon completion deliver such error corrections to Sun.
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3.3 Distribution Rights - Product Documentation. Sun grants to
Licensee a nonexclusive, nontransferable and worldwide
license under Sun's Intellectual Property Rights in the
Product Documentation, to (i) modify and incorporate the
Product Documentation into materials that Licensee will
distribute with the Licensee Product ("Licensee
Materials"); and (ii) copy and distribute the Licensee
Materials with the Licensee
Product only in a manner consistent with Licensee's
obligations to protect Sun's Intellectual Property Rights
hereunder.
3.4 Independently Developed Technology License. Licensee grants
to Sun a non-exclusive, worldwide, fully-paid and
non-transferable license under License's Intellectual
Property Rights in the Derivative Technology to (i) use,
modify and create derivatives of information and technology
independently developed by or for Sun and derivatives
thereof ("Independently Developed Technology"), (ii) make,
have made, use and sell products using or incorporating
Independently Developed Technology, and (iii) sublicense
the rights set forth in subsections (i) and (ii) above.
4. LIMITATIONS AND OBLIGATIONS.
4.1 Limitations on License Grants/No Other Licenses. Except as
expressly provided in Section 3, Sun grants no other license,
and other uses by Licensee of the Licensed Technology, or any
part thereof, shall constitute a material breach of this
Agreement.
4.2 Proprietary Notices. Licensee shall reproduce and not
obliterate Sun's proprietary notices on any part of the
Licensed Technology without the written permission of Sun.
Notwithstanding the foregoing, Licensee shall remove all Sun
Microsystems, Inc. and Sun logos and revision and serial
numbers from the Layout Database included as part of the
Licensed Technology prior to using the Database in the
manufacture of the Licensee Product. Licensee must comply
with all reasonable requests by Sun to include Sun's
proprietary rights notices on any part of the Licensed
Technology, Licensee Product or related materials. No
license, right, title, or interest in any Sun Microsystems,
Inc. trademark, trade name, trade dress, design patent or
service xxxx is granted hereunder including, without
limitation, "UltraSPARC". Licensee may use only the
following, in its entirety, in connection with the marketing
of products (where "XYZ" is the name of the Licensee
Product): "XYZ is derived from designs licensed from Sun
Microsystems, Inc."
4.3 Use of Third Parties. Licensee may retain third parties to
furnish services to it in connection with its use of Licensed
Technology, development of Derivative Technology and design
and manufacture of the Licensee Product, only if reasonably
required in connection with permitted activities. Third
parties who perform work for Licensee must execute
appropriate documents with Licensee effecting assignments of
all rights with respect to such work to Licensee and
undertaking sufficient obligations of confidentiality
respecting the Licensed Technology. Sun may, upon its
request, review the form of such agreements proposed for use
by Licensee prior to use.
4.4 Manufacturing Limitations. Licensee may only utilize a
Designated Manufacturer to manufacture the Licensee Product.
Licensee may grant a sublicense to such
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Designated Manufacturer (on terms and conditions consistent
with Licensee's obligations hereunder including without
limitation, the provisions of Section 9) to use only that
Licensed Technology as is necessary to enable the
manufacturing facility to manufacture the Licensee Product.
The Designated Manufacturer must agree to return the
materials to Licensee upon termination of this Agreement or
termination of production of the Licensee Product. Licensee
may not provide source code for any Licensed Technology or
Derivative Technology to any such Designated Manufacturer
facilities without Sun's prior written consent.
5. DELIVERY OF TECHNOLOGY AND RISK OF LOSS.
Sun shall use reasonable efforts to deliver to Licensee one
(1) copy of each item of the Deliverables by the dates set
forth in Exhibit A. Sun shall deliver the Licensed Technology
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to a common carrier Ex Works, Sun's facilities. Licensee
assumes all risk of loss or damage upon delivery of such by
Sun to the common carrier.
6. TRAINING, TRANSFER SUPPORT AND ERROR CORRECTIONS.
6.1 Transfer Support and Training. Sun shall provide to Licensee
the transfer support and training set forth in Exhibit C. The
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transfer support specified in Exhibit C is provided only to
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Licensee and only to facilitate transfer of the Licensed
Technology and to clarify Licensee's understanding of the
Licensed Technology in order to assist Licensee in the design
and manufacture of Licensee Products.
6.2 Error Corrections. Subject to the limitations set forth
below, for a period of twelve (12) months following the
Effective Date, Sun shall provide Error Corrections to
Licensee promptly after first release by Sun. Sun has no
obligation to create any Error Corrections on behalf of
Licensee or otherwise (Sun's only obligation being to
supply Error Corrections which Sun or its Affiliates
independently creates for and implements on the Reference
Design). Additional or extended technical support may be
obtained from Sun under a separate support agreement.
7. PAYMENTS AND TAXES.
Licensee shall pay the training and support fees set forth in
Exhibit B. Training and support fees will be payable in U.S.
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dollars and without the necessity of receiving an invoice
from Sun. All payments required under this Agreement are
exclusive of taxes, and Licensee is responsible for the
payment of all taxes, including, but not limited to, all
sales, use, rental, receipt, personal property or other taxes
and their equivalents which may be levied or assessed in
connection with this Agreement (excluding only taxes based on
Sun's net income). In the event that, under the laws of the
applicable jurisdiction, Licensee is required to withhold any
taxes based on the fees payable pursuant to Exhibit B,
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Licensee may deduct the taxes from such fees and will furnish
Sun with written certification of such tax payment.
8. TERM AND TERMINATION.
8.1 Term. This Agreement shall commence as of the Effective Date
and expire seven (7) years thereafter; provided, that this
Agreement shall automatically renew for successive one (1)
year periods unless either party notifies the other of its
desire that this Agreement expire whereupon this Agreement
shall so expire thirty (30) days
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following such notification. Upon expiration of this
Agreement, Licensee shall immediately discontinue use of the
Licensed Technology and shall promptly return all copies of
the Licensed Technology in Licensee's possession to Sun.
Notwithstanding the foregoing, Licensee may retain only such
copies of Licensed Technology as are necessary to support its
existing customers for the Licensee Product, provided that
(i) Licensee agrees to treat such Licensed Technology in
accordance with the terms of this Agreement including,
without limitation, the terms of Section 9, and (ii) Licensee
agrees to promptly return such Licensed Technology when it is
no longer necessary to support Licensee's existing customers
for the Licensee Product. In addition, Licensee shall
permanently destroy or disable all electronically
reproducible copies of the Licensed Technology (including
that contained within the Derivative Technology) and all
other electronic documents containing all or any portion of
the Licensed Technology.
8.2 Termination. This Agreement may be terminated as follows:
8.2.1 By either party upon sixty (60) days' written notice
specifying breach if the other party fails to comply with any
of the material terms or conditions of this Agreement unless
within the period of notice, all specified breaches have been
remedied.
8.2.2 By Sun upon ten (10) days' written notice, if Licensee
violates the provisions of Sections 4 or 9.
8.3 Effect of Termination - Licensee's Breach. In the event of
termination of this Agreement due to a breach by Licensee,
the rights and licenses granted by Sun to Licensee will
immediately terminate and Licensee will have no further right
to use the Licensed Technology or to manufacture, market,
sell or sublicense the Licensee Product or Derivative
Technology. Within ten (10) days after termination Licensee
must return all copies of the Licensed Technology in
Licensee's possession or control. In addition, Licensee must
permanently destroy or disable all electronically
reproducible copies of the Licensed Technology (including
that contained within the Derivative Technology) and all
other electronic documents containing all or any portion of
the Licensed Technology. Promptly after destruction of all
hard-copy and electronically reproducible copies of the
Licensed Technology, a duly authorized officer of Licensee
must certify to Sun that Licensee has destroyed or returned
all copies of the Licensed Technology.
8.4 Effect of Termination - Sun's Breach. The grant of rights from
Sun to Licensee to the Licensed Technology made in this
Agreement will survive the termination of this Agreement as a
result of a breach by Sun as, and to the extent, necessary
for Licensee to continue manufacture and support of the
Licensee Product as then constituted for sale as herein
permitted. Such continuing rights are subject to Licensee's
continued compliance with the terms of this Agreement.
Nothing will require Sun to provide any Error Corrections
or support or maintenance to Licensee after termination.
8.5 Limitation of Liability. Neither party shall have the right
to recover damages or indemnification of any nature, whether
by way of lost profits, expenditures for promotion, payment
for goodwill or otherwise made in connection with the
business contemplated by this Agreement, due to the
expiration or permitted or lawful
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termination of this Agreement. EACH PARTY WAIVES AND RELEASES
THE OTHER FROM ANY CLAIM TO COMPENSATION OR INDEMNITY FOR
TERMINATION OF THE BUSINESS RELATIONSHIP UNLESS SUCH
TERMINATION IS IN BREACH OF THIS AGREEMENT.
8.6 Survival. Rights and obligations under this Agreement which
by their nature should survive, will remain in effect after
termination or expiration hereof.
9. CONFIDENTIAL INFORMATION.
9.1 Obligation. Except as provided in this Agreement, a receiving
party may not use, make, have made, distribute or disclose
any copies of Confidential Information it receives from the
disclosing party pursuant to this Agreement, in whole or in
part, without the prior written authorization of disclosing
party. Each party shall hold in confidence any Confidential
Information received from the other pursuant to this
Agreement and shall protect the confidentiality thereof with
no less than reasonable care, for the term of this Agreement
(but in no event less than five (5) years from the date of
receipt of the Confidential Information, except for source
code which shall be protected as in perpetuity).
9.2 Exceptions. Notwithstanding any provisions contained herein
concerning nondisclosure and non-use of the Confidential
Information, the obligations of Section 9.1 shall not apply
to any portion of the Confidential Information which a
receiving party can demonstrate:
(i) is now, or hereafter through no act or failure to act
on the part of receiving party becomes, generally known in
the electronics industry;
(ii) is known to receiving party at the time of receiving
such Confidential Information without an obligation of
confidentiality;
(iii) is hereafter rightfully furnished to receiving party
by a third party without restriction on disclosure; or
(iv) is independently developed by receiving party without
any use of the Confidential Information.
9.3 Employee Access. Confidential Information may only be
disclosed to employees having a need to know such
Confidential Information for purposes consistent with this
Agreement. Each party shall inform its employees having
access to the Confidential Information of the limitations,
duties and obligations regarding nondisclosure and copying
of any or all of the Confidential Information.
9.4 Notice of Violation. Each party agrees to provide notice to
the other immediately after learning of or having reason to
suspect a breach of any of the provisions of this Section 9.
10. DISCLAIMER OF WARRANTIES; AIRCRAFT PRODUCTS AND NUCLEAR APPLICATIONS.
10.1 Licensed Technology. Licensee acknowledges that the Licensed
Technology may be in the process of change or development.
Licensed Technology, Sun Confidential Information and
Training and Support is provided "AS IS".
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10.2 Disclaimer. SUN DOES NOT MAKE AND DISCLAIMS ANY EXPRESS OR
IMPLIED WARRANTIES OR CONDITIONS WITH RESPECT TO THE LICENSED
TECHNOLOGY AND RELATED MATERIALS AND TRAINING AND SUPPORT
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
NON-INFRINGEMENT OF THIRD PARTY RIGHTS, DESIGN,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
WARRANTIES ARISING FROM A COURSE OF DEALING OR PERFORMANCE OR
USAGE OF TRADE. No agent of Sun is authorized to incur
warranty obligations on behalf of Sun or modify the
limitations as set forth herein.
10.3 Aircraft Product and Nuclear Applications. Licensed
Technology is not designed or intended for use in on-line
control of aircraft, air traffic, aircraft navigation or
aircraft communications; or in the design, construction,
operation or maintenance of any nuclear facility. Sun
disclaims any express or implied warranty of fitness for such
uses. Licensee represents that it will not use Licensed
Technology or Derivative Technology and will I not use,
distribute or resell the Licensee Product for such purposes
and that it will use its best efforts to ensure that its
customers and end-users are provided with a copy of the
foregoing notice.
10.4 Product Liability. Licensee shall not, in connection with the
marketing of the Licensee Product represent, either directly
or indirectly, that Sun has certified or approved of the
form, fit, function, performance or compatibility thereof.
Licensee shall indemnify, release, defend and hold Sun
harmless from all claims, damages, losses, costs and
expenses, including reasonable attorneys' fees and expenses,
arising in defense of any claim of product liability in any
way relating to the Licensee Product, provided that Sun (i)
gives Licensee written notice of such claim, (ii) cooperates
with Licensee, at Licensee's expense, in the defense of the
claim, and (iii) gives Licensee the right to control the
defense and settlement of the claim, except that Licensee may
not enter into any settlement that affects Sun's rights or
interest without Sun's prior written approval. Sun has no
authority to settle any claim on behalf of Licensee.
11. LIMITATION OF LIABILITY.
11.1 Infringement. SUN IS NOT RESPONSIBLE FOR ANY LIABILITY
RELATED TO ANY CLAIM ALLEGING THAT THE USE OF LICENSED
TECHNOLOGY, USE, MANUFACTURE OR, SALE OF THE LICENSEE PRODUCT
INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD
PARTY.
11.2 General Limitation. Except for breach of Sections 4, 9, 10.3
or 10.4, and to the extent not prohibited by applicable law:
A. Each party's aggregate liability to the other for
claims relating to this Agreement, whether for breach or in
tort, shall be limited to the total of the payments made by
Licensee to Sun hereunder for the Licensed Technology.
B. Neither party will be liable for any indirect,
punitive, special, incidental or consequential damage in
connection with or arising out of this Agreement (including
loss of business, revenue, profits, use, data or other
economic advantage), however it arises, whether for breach or
in tort, even if that party has been previously advised of
the possibility of such damage.
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C. Liability for damages shall be limited and
excluded, even if any exclusive remedy provided for in this
Agreement fails of its essential purpose.
12. MISCELLANEOUS.
12.1 Notices. All written notices required by this Agreement must
be delivered in person or by means evidenced by a delivery
receipt and will be effective upon receipt.
12.2 Relationship. This Agreement is not intended to create a
relationship such as a partnership, franchise, joint venture,
agency, or employment relationship. Neither party may act in
a manner which expresses or implies a relationship other than
that of independent contractor, nor bind the other party.
12.3 Governing Law. Any action related to this Agreement will be
governed by California law and controlling U.S. federal law.
No choice of law rules of any jurisdiction will apply.
12.4 Attorney's Fees. In addition to any other relief, the
prevailing party in any action arising out of this Agreement
shall be entitled to attorneys' fees and costs.
12.5 Force Majeure. A party is not liable under this Agreement for
non-performance caused by events or conditions beyond that
party's control if the party makes reasonable efforts to
perform. This provision does not relieve Licensee of its
obligation to make payments then owing.
12.6 Available Relief. Nothing herein is to be construed as
limiting either party from seeking injunctive or other
equitable relief at any time. Licensee acknowledges and
agrees that (i) the restrictions on its use and disclosure of
Sun's Confidential Information and the restrictions and
limitations on the licenses granted to Licensee are
reasonable and necessary to protect legitimate interests,
(ii) in the event of a violation by Licensee of any of the
provisions of Sections 3, 4, or 9, remedies at law will be
inadequate and such violation will cause irreparable damages
to Sun within a short period of time, and (iii) Sun will be
entitled to injunctive relief against every violation of
these Sections.
12.7 Assignment. Neither party may assign or otherwise transfer
any of its rights or obligations under this Agreement,
without the prior written consent of the other party, except
that Sun may assign its right to payment and may assign this
Agreement to any of its Affiliates.
12.8 Waiver. Any express waiver or failure to exercise promptly
any right under this Agreement will not create a continuing
waiver or any expectation of non-enforcement.
12.9 Severability. If any provision of this Agreement is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any
way be affected or impaired thereby, and shall be
interpreted, to the extent possible, to achieve the purposes
as originally expressed in the invalid, illegal or
unenforceable provision.
12.10 Export Control. The Licensed Technology, Derivative
Technology and Sun Confidential Information are subject to
U.S. export control laws and may be subject
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to export or import regulations in other countries. Licensee
agrees to comply strictly with all such laws and regulations
and acknowledges that it has the responsibility to obtain
such licenses to export, re-export or import as may be
required after delivery to Licensee.
12.11 Entire Agreement. This Agreement, including the attached
Exhibits, is the parties' entire agreement relating to its
subject matter. It supercedes all prior or contemporaneous
oral or written communications, proposals, conditions,
representations and warranties and prevails over any
conflicting or additional terms of any quote, order,
acknowledgement, or other communication between the parties
relating to its subject matter during the term of this
Agreement. No modification to this Agreement will be binding,
unless in writing and signed by an authorized representative
of each party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
Sun Microsystems, Inc. Pinnacle Data Systems, Inc.
BY: /s/ Xxxxxxx X Xxxxxx BY: /s/ Xxxx Xxxx
NAME: Xxxxxxx X Xxxxxx NAME: Xxxx Xxxx
TITLE: VP TITLE: President/CEO
DATE: 5/11/99 DATE: 4/29/99
The Exhibits to this Agreement are:
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Exhibit A - Deliverables
Exhibit B - Licensee Designated Equipment, Designated Site, Designated
Customer(s), Designated Manufacturer and Training and Support Fees
Exhibit C - Transfer Support, Training and Maintenance
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EXHIBIT A
DELIVERABLES
Deliverables for the Reference Design - To be delivered within thirty (30) days
of the Effective Date, unless otherwise indicated.
Reference Design Deliverables:
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Reference Design board schematics database in Concept format, including the
components library Reference Design board layout file in Allegro (.brd) format,
including the layout routing rules BOM for Reference Design board in txt
format, including Sun part number and AVL information Xxxxxxxx Specification
ver. 1.0
CCT Interface pin assignment
AXmp OEM manual
Mechanical drawings: CCT cage, including the 1/0 board and pan assembly
mechanical design database in PRO-E format.
OBP/POST Deliverables:
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OBP/POST source code for the Reference Design
The above referred Delivery Date is a target date only. It is anticipated that
Sun will deliver the Deliverables to Licensee by the Delivery Date, however,
the actual date may change. Sun will provide Licensee with notice of any change
in Delivery Date.
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EXHIBIT B
LICENSEE DESIGNATED EQUIPMENT, DESIGNATED SITE, DESIGNATED CUSTOMER,
DESIGNATED MANUFACTURER AND TRAINING AND SUPPORT FEES
DESIGNATED EQUIPMENT. [ Sun UltraSPARC 143 Mhz ]
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CPU Part #501-2836, CPU SN #013859
HOSTID: 80a568 IP Address: 8 : 0 : 20 : 80 : a5 :68
DESIGNATED SITE: [ Main Engineering Lab ]
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0000 Xxxx Xxxx
Xxxxxxxx XX 00000
DESIGNATED CUSTOMER: Alcatel
DESIGNATED MANUFACTURER: Celestica in Toronto, Canada
TRAINING AND SUPPORT FEES:
The fees for the training and support services described in Exhibit C will be
$40,000, to be paid by Licensee to Sun as follows:
1. $10,000 To be paid at the start of the training and support
described in Exhibit C, or within thirty (30) days
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of the Effective Date, whichever happens first;
2. $10,000 To be paid within ninety (90) days of the Effective
Date;
3. $10,000 To be paid within one hundred sixty (160) days of
the Effective Date or Licensee's bring-up of the
Licensee Product, whichever happens first; and
4. $10,000 To be paid within twelve (12) months of the
Effective Date, or upon Licensee's purchase of One
Hundred Thousand Dollars ($100,000) worth of
components from SME, whichever happens first.
Address for Payment of Training and Support Fees:
Sun Microelectronics
A division of Sun Microsystems, Inc.
x/x Xxxx xx Xxxxxxx
Xxxx #00000
Xxx Xxxxxxxxx, XX 00000-0000
Account #12339-21709
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EXHIBIT C
TRANSFER SUPPORT, TRAINING AND MAINTENANCE
REFERENCE DESIGN TRANSFER SUPPORT: Sun shall provide Licensee with transfer
support for the Reference Design which may be provided by phone or electronic
mail. Licensee's right to receive transfer support shall commence only upon
delivery to the Licensee of the Licensed Technology and shall expire ninety
(90) days thereafter.
OBP/POST TRANSFER SUPPORT: Sun shall provide Licensee with initial transfer
support to further Licensee's understanding of OBP/POST which may be provided
by phone or electronic mail. Licensee's right to receive the initial transfer
support shall commence only upon Licensee's full completion of the initial
training set forth above and shall expire one hundred eighty (180) days after
completion of such initial training.
OBP/POST TRAINING: Training for OBP/POST shall be provided at Sun's San Jose,
California facilities. Licensee may designate up to five (5) of its personnel
to attend such training. Licensee shall pay all living and out-of-pocket
expenses for its personnel including, without limitation, all commuting and
other transportation costs. Upon Licensee's request, and subject to the
availability of its personnel, Sun shall provide the initial training at
Licensee's facilities; provided, that Licensee shall bear all reasonable travel
and living expenses for Sun's training and support personnel and shall include
three (3) travel days. In addition, Licensee shall provide suitable training
facilities at its sole cost and expense. Licensee's right to receive initial
OPB/POST training shall expire six (6) months after the Effective Date.
MAINTENANCE: During the first twelve (12) months this Agreement is in effect,
Sun shall provide Licensee Error Corrections and Upgrades to OBP/POST as they
are generally made available.
ADDITIONAL SUPPORT: Additional training and consulting services may be obtained
from Sun pursuant to the terms and conditions of a separate agreement.
-13-
REVISED AND AMENDED AS OF JUNE 25, 1999
LICENSEE DESIGNATED EQUIPMENT, DESIGNATED SITE, DESIGNATED CUSTOMER,
DESIGNATED MANUFACTURER AND TRAINING AND SUPPORT FEES
DESIGNATED EQUIPMENT. [ Sun UltraSPARC 143 Mhz ]
---------------------------
CPU Part #501-2836, CPU SN #013859
HOSTID: 80a568 IP Address: 8 : 0 : 20 : 80 : a5 :68
DESIGNATED SITE: [ Main Engineering Lab ]
-------------------------
0000 Xxxx Xxxx
Xxxxxxxx XX 00000
DESIGNATED CUSTOMER: Alcatel, Westwave Communications
DESIGNATED MANUFACTURER: Celestica in Toronto, Canada
TRAINING AND SUPPORT FEES:
The fees for the training and support services described in Exhibit C will be
---------
$40,000, to be paid by Licensee to Sun as follows:
1. $10,000 To be paid at the start of the training and support
described in Exhibit C, or within thirty (30) days
---------
$10,000 of the Effective Date, whichever happens first;
2. To be paid within ninety (90) days of the Effective
Date;
3. $10,000 To be paid within one hundred sixty (160) days of
the Effective Date or Licensee's bring-up of the
Licensee Product, whichever happens first; and
4. $10,000 To be paid within twelve (12) months of the
Effective Date, or upon Licensee's purchase of
One Hundred Thousand Dollars ($100,000) worth of
components from SME, whichever happens first.
Address for Payment of Training and Support Fees:
Sun Microelectronics
A division of Sun Microsystems, Inc.
x/x Xxxx xx Xxxxxxx
Xxxx #00000
Xxx Xxxxxxxxx, XX 00000-0000
Account #12339-21709
-14-
