TECHNOLOGY LICENSE AND DISTRIBUTION AGREEMENT
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EXHIBIT 10.8
TECHNOLOGY LICENSE
AND
DISTRIBUTION AGREEMENT
This Technology License and Distribution Agreement (the "Agreement") is
entered into this ___ day of December, 1995 (the "Effective Date") between Sun
Microsystems, Inc., acting by and through its Java Products Group ("SUN") with
its principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx 00000 and Symantec Corporation, a Delaware corporation with its
principal place of business at 00000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000-0000 ("Licensee").
RECITALS
WHEREAS SUN wishes to license its JAVA(TM) programming language and
related technology, while maintaining compatibility among JAVA language based
products; and
WHEREAS SUN wishes to protect and promote certain trademarks used in connection
with JAVA technology; and
WHEREAS Licensee wishes to develop and distribute products based upon SUN's
JAVA technology;
NOW THEREFORE, SUN and Licensee enter into this Technology Licensing and
Distribution Agreement on the following terms.
1.0 DEFINITIONS
1.1 "Applet Application Programming Interface or AAPI" means the public
application programming interface to the Technology, including all public class
libraries and interfaces.
1.2 "Applet" means a Java application which (i) runs on the AAPI and (ii)
consists of Java byte codes executable by the Java Runtime interpreter (but
does not include or incorporate the Java Runtime interpreter or Applet Classes).
1.3 "Applet Classes" means the Java classes listed in Exhibit A.
1.4 "Documentation" means users' manuals and programmers' and system
guides which SUN provides for use with the Technology and which are more
particularly identified in Exhibit A.
1.5 "Derivative Work(s)" means: (i) for material subject to copyright or
mask work right protection, any work which is based upon one or more
pre-existing works of the Technology, such as a revision, modification,
translation, abridgement, condensation, expansion, collection, compilation or
any other form in which such pre-existing works may be recast, transformed or
adapted, (ii) for patentable or patented materials, any adaptation, subset,
addition, improvement or combination of the Technology, and (iii) for material
subject to trade secret protection, any new material, information or data
relating to and derived from the Technology, including new material which may
be protectable by copyright, patent or other proprietary rights, and, with
respect to each of the above, the preparation, use and/or distribution of
which, in the absence of this Agreement or other authorization from the owner,
would constitute infringement under applicable law. Derivative Works
specifically excludes Product(s), Value Added Open Packages, and
Licensee-implemented modifications to the Platform-Dependent Part of the Java
Runtime Interpreter.
1.6 "Intellectual Property Rights" means all intellectual property rights
worldwide arising under statutory or common law, and whether or not perfected,
including, without limitation, all (i) patents, patent applications and patent
rights; (ii) rights associated with works of authorship including copyrights,
copyright applications, copyright registrations, mask work rights, mask work
applications, mask work registrations; (iii) rights relating to the protection
of trade secrets and confidential
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information; (iv) any right analogous to those set forth in this Section 1.6
and any other proprietary rights relating to intangible property (other than
trademark, trade dress, or service xxxx rights); and (v) divisions,
continuations, renewals, reissues and extensions of the foregoing (as and to
the extent applicable) now existing, hereafter filed, issued or acquired.
1.7 "Java Compiler" means the Java programs more particularly identified
as "Technology: Compiler" in Exhibit A.
1.8 "Java Runtime Interpreter" means the program which implements the
Java Virtual Machine, as specified in the Java Virtual Machine Specification.
The Java Runtime Interpreter consists of the Shared Part and the
Platform-Dependent Part.
1.9 "Platform Dependent Part" means those source code files of the
Technology which are not in a "share" directory or subdirectory thereof as
provided by SUN and which must be compiled with the Shared Part to produce the
Java Runtime Interpreter.
1.10 "Product(s)" means Licensee's current and future services and/or
product(s) which implement, integrate and/or embody in whole or in part, the
Technology and/or Licensee-developed Derivative Works thereof, for the
platforms specified in Exhibit C or any additional platforms developed by
Licensee or supplied by third parties. A current list of Product(s) is
specified in Exhibit B which may be amended by Licensee to add Product(s) from
time to time. "Product" must represent a significant functional and value
enhancement to the Technology such that the primary reason for a customer to
license such Product is other than the right to receive a license to the
Technology. "Product" must operate in conjunction with the Technology and shall
not include or be marketed as a technology which replaces or substitutes for
the Technology.
1.11 "Shared Part" means those source code files of the Technology which
are in any "share" directory or subdirectory thereof as provided by SUN which
must be compiled with the Platform Dependent Part to produce the Java Runtime
Interpreter.
1.12 "Source Code" means the human readable version, in whole or in part,
of the Technology supplied to Licensee and any corresponding comments and
annotations.
1.13 "Technology" means the Java Runtime Interpreter, the Java Compiler
and the Applet Classes developed by SUN, as more particularly identified in
Exhibit A, and Upgrades thereto.
1.14 "Trademarks" means ad names, logos, designs, characters, and other
designations or brands used by SUN in connection with the Technology.
1.15 "Upgrades" means any bug fixes, modifications, variations,
enhancements, or dot releases of the Technology for the platform(s) specified
in Exhibit C, which SUN generally licenses as part of the Technology. The term
"Upgrades" does not include parts of the Technology to additional platform(s).
1.16 "Value Added Open Packages" means additional Java classes developed
by Licensee which represent extensions to the AAPI, and which are made
available to third parties in either source or binary form to use in the
development of additional software which outputs Java bytecodes and/or runs in
the context of a Java compatible Runtime Interpreter environment.
2.0 LICENSE GRANTS
2.1 Source Code License
a. Subject to the terms and conditions contained in this Agreement,
SUN hereby grants to Licensee, and Licensee hereby accepts, under the
Intellectual Property Rights of SUN, a perpetual, worldwide, non-exclusive,
non-transferable license, without the right to sublicense (except as
specified in Section 2.1b(iii), to access, use, modify, reproduce and view
the Technology in Source Code form, solely for the purpose(s) of porting,
developing, compiling to binary form and supporting Product(s), Value Added
Open Packages, and Licensee-implemented modifications to the Platform
Dependent Part. Licensee shall have no right to modify the interface or the
functional behavior of the Java Runtime Interpreter or the Applet Classes
and explicitly shall not have the right to modify or create a subset of the
AAPI.
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Licensee may use the Source Code of the Shared Part of the Java Runtime
Interpreter to develop Product(s), Value Added Open Packages, and
Licensee-implemented modifications to the Platform Dependent Part, but if
it uses such Source Code, it must use all of it without modification.
Except as specified in Section 2.1b(iii) and 2.1(d), Licensee shall have
no right to distribute the Source Code of the Technology or of Derivative
Works, whether alone or as incorporated with Product(s), Value Added Open
Packages, Licensee-implemented modifications to the Platform Dependent
Part or Upgrades.
b. Porting.
(i) Licensee may port the Platform Dependent Part to platforms other
than those specified in Exhibit C.
(ii) SUN will work with Licensee to identify any changes which are
necessary to the Shared Part of the Java Runtime Interpreter to allow
porting it to other platforms, and SUN will use reasonable efforts to make
changes necessary to the code for the Shared Part.
(iii) Licensee may sublicense and deliver a copy of the Source Code
of the Technology to third parties only in association with the delivery
and sublicensing of Licensee Products, and solely for the purposes of
enabling such third party to port or localize Products for Licensee. Any
such sublicense shall be made subject to terms and conditions relating to
ownership, use, compatibility, and confidentiality of the Technology
substantially similar to those contained herein.
c. Bug Fixes. Licensee will inform Sun promptly, and no later than it
informs any third party, of any bugs identified in the Technology, and to
the extent that Licensee elects to correct such bugs, Licensee will make
such bug fixes promptly available to Sun free of all restrictions as they
are implemented.
d. In the event that SUN distributes a development environment for
commercial use, certain libraries of which are made available in Source
Code form, free of charge to licensees by way of an electronically
executable license via the Internet, Licensee may distribute such
unmodified Source Code integrated into commercial quality Product(s), but
only in a manner consistent with SUN's then-current business practices and
subject to SUN's then-current licensing terms.
2.2 Binary Code License
a. SUN hereby grants and Licensee hereby accepts a non-exclusive,
worldwide, fully paid up license to use an unlimited number of copies of
the Technology in binary form, for Licensee's internal use during the term
of this Agreement.
b. Worldwide Distribution. Licensee may distribute the Product(s), Value
Added Open Packages, Licensee-implemented modifications to the Platform
Dependent Part, Upgrades and associated Documentation provided to Licensee
by SUN in binary form worldwide and may use such distribution channels as
Licensee deems appropriate, including distributions, resellers, dealers
and sales representatives (collectively, "Distributors"), provided,
however, that such Distributors shall not modify the Technology or any
portions thereof, and shall be obligated to abide by the relevant terms in
this Agreement governing use, distribution, compatibility, and
confidentiality.
2.3 Documentation
a. SUN hereby grants to Licensee, and Licensee hereby accepts, under
SUN's Intellectual Property Rights, a non-exclusive, non-transferable
license (i) to use and distribute the unmodified Documentation, (ii) to use
and modify the Documentation to create technically accurate unaltered
subsets of the documentation which shall include all the relevant SUN
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copyrights, notices and marks, (iii) to translate the Documentation into
other languages, and (iv) to distribute such translated or modified
Documentation in connection with distribution of the Product(s). Licensee
may also use a pointer to the SUN Documentation on the Internet in
connection with distribution of the Product(s).
2.4 Compatibility
a. Java Compatibility
(i) Initially, the AAPI shall be that which is reflected in the Technology
as identified in Exhibit A, by the bytecode specification in the
Documentation entitled "Java Virtual Machine Specification" and by the
Java language specification in the Documentation entitled "Java Language
Specification." Subsequently, the AAPI may be modified by SUN and SUN will
give Licensee written notice thereof.
(ii) From time to time, SUN will make publicly available test suites at no
cost for validating that the portion of Licensee's Product which interprets
Java bytecodes complies with the then-current Specification of the AAPI as
defined by SUN as of the date of that test suite ("Java Test Suite"). SUN
shall not publish more than four (4) versions of such Java Test Suites in
any one (1) calendar year, without the consent of Licensee, which consent
shall not be unreasonably delayed or denied. SUN shall use reasonable
efforts to review any changes to such Java Test Suites as much in advance
as possible with Licensee, but failure of SUN to do so shall not constitute
a breach of this Agreement and shall not invalidate any such Java Test
Suite published by SUN. Changes to Java Test Suites to correct errors shall
not be counted against the limitation to four (4).
(iii) Each revision of a Product released by Licensee must pass the Java
Test Suite that was current one hundred twenty (120) days before First
Customer Shipment of such Product. Licensee shall not release or
distribute to any third party the portion of Licensee's Product that
interprets Java bytecodes, which does not successfully pass such Java Test
Suite.
(iv) If Licensee provides SUN with written notice of the existence of a
bug in a current Java Test Suite, then Licensee shall be released from
compatibility with the minimum portion of such Java Test Suite necessary
to avoid the impact of such bug, until such time as Sun provides to
Licensee a corrected or new Java Test Suite.
(v) Branding and Trademarks. Licensee shall use a logo specified by SUN
that indicates compatibility with the Java Test Suites (the "Java
Compatibility Logo") in a trademark manner on all Licensee Product(s)
distributed hereunder. The terms and conditions governing the parties'
agreement as to trademarks, logos, and branding shall be governed by the
Trademark License entered into herewith, attached as Exhibit F hereto, and
incorporated by reference herein.
b. Compiler Compatibility
(i) Any Product(s) that performs a compiling function must continue to
compile the complete Java Language as described in the Java Language
Specification, and be able to generate fully-interpretable
machine-independent bytecodes for the Java Virtual Machine.
(ii) From time to time, SUN will make publicly available test suites at no
cost for validating that the portion of Licensee's Product which compiles
the Java Language complies with the then-current Java Language
specification and bytecode specification as defined by SUN as of the date
of that test suite ("Java Language Test Suite"). Without the consent of
Licensee, which consent shall not be unreasonably delayed or denied, SUN
shall not supply more than four (4) versions of such Java Language Test
Suites in any one (1) calendar year. SUN shall use reasonable efforts to
review any changes to such Java Language Test Suites as much in advance as
possible with Licensee, but failure of SUN to do so shall not constitute a
breach of
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this Agreement and shall not invalidate any such Java Language Test Suite
supplied by SUN. Changes to Java Language Test Suites to correct errors
shall not be counted against the limitation to four (4).
c. Upgrades. Licensee shall promptly announce and ship Product(s) based
on Upgrades to the Technology as delivered by SUN during the term of this
Agreement. Licensee shall correct any incompatibility with the AAPI, as
determined by the applicable Java or Java Language Test Suite, which
arises from integrating such Upgrade, whether such incompatibility is
detected before or after FCS of the affected Product(s). If Licensee
discovers that a new Product or a new version of a Product is incompatible
before the Product enters beta stage, Licensee shall not ship such
incompatible Product(s) without first correcting the incompatibility.
2.5. Value Added Open Packages
(i) Licensee shall deliver to SUN free of all restrictions the
specification for the application programming interface for Value Added
Open Package as early as is reasonably possible but in no event later than
the date on which it first provides such specification or an
implementation thereof to any third party. Included in such specification
shall be an appropriate test suite sufficiently detailed to allow SUN and
third parties to produce implementations compatible with the
specification. Licensee shall use its reasonable commercial efforts to
clarify and correct the specification or the test suite upon written
request by SUN and failure to do so within sixty (60) days after such
request shall constitute breach of this Agreement.
(ii) Licensee shall notify SUN as soon as it has made any general
disclosure (i.e., not subject to confidentiality obligations) of such
specification, or first releases a Product implementing such
specification, after which SUN shall have no obligation of confidentiality
whatsoever with respect to such specification. Licensee agrees that it
will take no steps whatsoever to prevent SUN or any third party from
creating implementations based on such specification, provided that such
implementations do not violate Licensee's patents, copyrights (except that
Licensee agrees that it will not enforce copyright or patent claims that
relate to interface or compatibility) or trade secrets in the
implementation of the Value Added Open Packages.
(iii) Licensee shall confine the names of all Value Added Open Packages to
names beginning with "COM.Licensee" or such other convention as SUN may
reasonably require and shall not modify or extend the public class or
interface declarations whose names begin with "java", "COM.sun" or their
equivalents in any subsequent naming convention. Licensee will make
reasonable commercial efforts to ensure that other commercial software
packages which it redistributes conform to this convention.
(iv) Licensee hereby grants and SUN hereby accepts a non-exclusive,
worldwide, fully-paid-up license to use an unlimited number of copies of
the Value Added Open Packages, in binary form, for SUN's internal use,
such use including but not limited to demonstration rights. Licensee
agrees to reasonably negotiate in good faith with SUN the terms of a
commercial license for the source code of the Value Added Open Packages.
The parties agree that the fees and other terms and conditions of this
Agreement are a reasonable standard against which to judge such a license
on a proportionate basis comparing the scope and complexity of the portion
of the Value Added Open Package being licensed to the scope and complexity
of the Technology.
2.6 Ownership
a. Ownership by SUN. SUN retains all right, title and interest in the
Technology, including Derivative Works, Documentation, Upgrades, bug
fixes, and Trademarks, and associated Intellectual Property Rights, but
excluding Product(s), Value Added Open Packages and Licensee-implemented
modifications to the Platform-Dependent Part of the Java Runtime
Interpreter, subject to SUN's underlying rights in the Technology and
associated Intellectual Property Rights. Licensee agrees to execute (in
recordable form where appropriate) any instruments and/or documents as
SUN may reasonably request to verify and maintain SUN's
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ownership rights, or to transfer any part of the same which may vest in
Licensee for any reason. Licensee further agrees to promptly deliver to SUN
any Derivative Works of the Technology created by Licensee pursuant to and
during the term of this Agreement. SUN shall have no obligations of
confidentiality to Licensee for such Derivative Works, nor shall SUN be
obligated to incorporate any such Derivative Works into the Technology.
b. Ownership by Licensee. Licensee retains all right, title and interest
in the Product(s), Value Added Open Packages, and Licensee-implemented
modifications to the Platform-Dependent Part of the Java Runtime
Interpreter, created by Licensee pursuant to and during the term of this
Agreement, subject to SUN's underlying rights in the Technology and
associated Intellectual Property Rights identified in Section 2.6a. In the
event that the parties desire to undertake joint development activities,
the parties agree to negotiate and enter into a separate joint development
agreement for such activities.
2.7 Protection of SUN's Rights. Licensee shall use, modify and practice
the Technology and manufacture, market, distribute and sell Product(s), Value
Added Open Packages, and Licensee-implemented modifications to the
Platform-Dependent Part of the Java Runtime Interpreter only in a manner
consistent with the terms of this Agreement, and only in a manner reasonably
designed not to jeopardize or prejudice SUN's Intellectual Property Rights,
including trademarks, trade dress and service marks, and other proprietary
rights.
2.8 No Right To Sublicense or Transfer. Except as specifically provided
in Section 2.1b(iii) above, Licensee shall have no right to sublicense or
transfer any of the rights or licenses granted in this Agreement.
2.9 No Other Grant. Each party agrees that this Agreement does not grant
any right or license, under any Intellectual Property Rights of the other
party, or otherwise, except as expressly provided in this Agreement, and no
other right or license is to be implied by or inferred from any provision of
this Agreement or by the conduct of the parties.
2.10 Contractors. Licensee may retain third parties to furnish services to
it in connection with its development and manufacture of Product(s); provided,
however, that all such third parties who perform work in furtherance of such
activities shall execute appropriate documents: (i) acknowledging their
work-made-for-hire status, (ii) affecting assignments of all Intellectual
Property Rights with respect to such work to Licensee or SUN, as appropriate,
and (iii) undertaking obligations of confidentiality respecting such work. SUN
may, upon its request, review any such form documents and agreements proposed
for use by Licensee prior to any such use of contractors for development or
manufacture of the Product(s).
2.11 Value Added Requirement. Licensee will distribute the Technology only
as part of a Product and not on a stand-alone basis.
2.12 Pre-Release. Licensee may release Product(s) based on the pre-FCS
Technology licensed by SUN hereunder only for beta testing purposes, except
that Licensee is hereby authorized to release a beta version of the Technology
integrated into Licensee's C++ 7.2 for Windows 95/NT as a patch on the Internet
(the "Patch"), provided, that such Patch: (i) shall be beta quality software,
(ii) shall meet all the compatibility requirements specified in this Agreement
and (iii) will not require payment of a royalty to SUN until December 31, 1996.
Thereafter, any subsequent release(s) of Product(s) incorporating the Patch
will be deemed Product(s) hereunder and subject to payment of royalties as
specified in Exhibit B.
3.0 SUPPORT AND UPGRADES
3.1 During the Support Period (as defined below), SUN shall provide to
Licensee under the terms and conditions of this Agreement, Upgrades for
the platforms specified in Exhibit C when and if any such Upgrades are made
available by SUN to any commercial licensee similarly situated.
3.2 SUN shall assign the equivalent of one (1) half-time engineer to be
available via phone, electronic mail and/or scheduled appointment during
regular business hours to support Licensee,
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from the Effective Date through the fifth (5th) anniversary of Licensee's
receipt of the "First Customer Shipment" version of any of the platforms
identified in Exhibit C (the "SUN FCS Date") (the "Support Period"). The
selection of the support engineer shall be at Sun's sole discretion. Licensee
may designate a maximum of three (3) contacts to interface with the SUN support
engineer.
3.3 Upon the request of Licensee, SUN agrees to reasonably negotiate in
good faith for additional support through a separate support agreement.
4.0 PAYMENT
4.1 Royalties. In consideration of the rights granted Licensee in this
Agreement, Licensee shall pay to SUN the royalties set forth in Exhibit C.
Payment of royalties shall be made quarterly, shall be due thirty (30) days
following the end of the calendar quarter to which they relate and shall be
submitted with a written statement certifying the number of Products sold and
showing the calculation of royalties due.
4.2 Support and Upgrade Fees. During the Support Period, Support and
Upgrades shall be provided to Licensee at no charge.
4.3 Taxes. All payments required by this Agreement shall be made in
United States dollars, are exclusive of taxes, and Licensee agrees to bear and
be responsible for the payment of all such 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).
4.4 Records. Licensee shall maintain account books and records consistent
with Generally Accepted Accounting Principles appropriate to Licensee's
domicile, as may be in effect from time to time, sufficient to allow the
correctness of the royalties required to be paid pursuant to this Agreement to
be determined.
4.5 Audit Rights. SUN shall have the right to audit such accounts upon
reasonable prior notice. The right to audit may be exercised through an
independent auditor or SUN's choice (the "Auditor"). The Auditor shall be bound
to keep confidential the details of the business affairs of Licensee and to
limit disclosure of the results of any audit to only the sufficiency of the
accounts and the amount, if any, of any additional payment or other payment
adjustment that should be made. Such audits shall not occur more than once each
year (unless discrepancies are discovered in excess of the five percent (5%)
threshold set forth in Section 4.6, in which case two consecutive quarters per
year may be audited). Except as set forth in Section 4.6 below, SUN shall bear
all costs and expenses associated with the exercise of its rights to audit.
4.6 Payment Errors. In the event that any errors in payments shall be
determined, such errors shall be corrected by appropriate adjustment in payment
for the quarterly period during which the error is discovered. In the event of
an underpayment of more than five percent (5%) of the proper amount owed, upon
such underpayment being properly determined by the Auditor, Licensee shall
reimburse SUN the amount of said underpayment and the reasonable charges of the
Auditor in performing the audit that identified said underpayment, and interest
on the overdue amount at the maximum allowable interest rate from the date of
accrual of such obligation.
5.0 ADDITIONAL AGREEMENT OF PARTIES
5.1 Notice of Breach or Infringement. Each party shall notify the other
immediately in writing when it becomes aware of any breach or violation of the
terms of this Agreement, or when Licensee becomes aware of any potential or
actual infringement by a third party of the Technology or SUN's Intellectual
Property Rights therein.
5.2 Notices. Licensee shall not remove any copyright notices, trademark
notices or other proprietary legends of SUN or its suppliers contained on or in
the Technology or Documentation. Each unit of Product(s) containing the
Technology distributed by Licensee shall include in Licensee's documentation,
or in other terms and conditions of sale, notices substantially similar to
these contained on and in the Technology. Licensee or its Distributors shall
require an end user license
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agreement for each unit of Product(s) shipped and Licensee shall provide SUN
with a copy of such form agreement for review and approval. If Licensee or its
Distributors use a package design or label for the Product(s), such package
design or label shall include an acknowledgement of SUN as the source of the
Technology and such other notices as specified in Exhibit F. In addition,
Licensee shall comply with all reasonable requests by SUN to include SUN's
copyright and/or other proprietary rights notices on the Product(s),
documentation or related materials, including but not limited to the notices
and acknowledgements as specified in Exhibit F.
5.3 Applet Tags. Any Product that reads or writes hypertext markup
language (HTML) or standard generalized markup language (SGML) shall use the
Document Type Definition ("DTD") as specified in Exhibit E when referencing the
Applet tag, unless another DTD is defined for the Applet tag by an industry
standard.
5.4 End User Support. Licensee is not authorized to make any
representation or warranty on behalf of SUN to its end users or third parties.
Licensee shall provide technical and maintenance support service for its
distributors and end user customers in accordance with Licensee's standard
support practices. SUN shall not be responsible for providing any support to
Licensee's distributors or customers for the Technology or the Product(s).
5.5 Marketing. Licensee will cooperate with SUN on mutually agreeable
marketing and promotional activities relating to the Technology. Licensee's
initial press announcement concerning execution of this Agreement must be
reviewed by SUN prior to its release.
5.6 Use of Licensee's name. Licensee hereby authorizes SUN to use
Licensee's name in advertising, marketing, collateral, customer tests and
customer success stories prepared by or on behalf of SUN for the Technology,
provided that Licensee will have the right to approve the use of its name, such
approval not to be unreasonably withheld or delayed.
6.0 LIMITED WARRANTY AND DISCLAIMER
6.1 Limited Warranty. SUN represents and warrants that the media on which
the Technology is recorded will be free from defects in materials and
workmanship for a period of ninety (90) days after delivery. SUN's sole
liability with respect to breach of this warranty is to replace the defective
media. Except as expressly provided in this Section 6.1, SUN licenses the
Technology and Documentation to licensee on an "AS IS" basis.
6.2 General Disclaimer. EXCEPT AS SPECIFIED IN THIS AGREEMENT, ALL
EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, ARE HEREBY DISCLAIMED.
6.3 Logo Disclaimer. SUN MAKES NO WARRANTIES OF ANY KIND RESPECTING THE
COMPATIBILITY LOGO(s), INCLUDING THE VALIDITY OF SUN'S RIGHTS IN THE
COMPATIBILITY LOGO(s) IN ANY COUNTRY, AND DISCLAIMS ANY AND ALL WARRANTIES THAT
MIGHT OTHERWISE BE IMPLIED BY APPLICABLE LAW, INCLUDING WARRANTIES AGAINST
INFRINGEMENT OF THIRD PARTY TRADEMARKS.
6.4 Limitation. The warranties set forth in this Article 6.0 are
expressly subject to Section 9.0 (Limitation of Liability).
7.0 CONFIDENTIAL INFORMATION
7.1 Confidential Information. For the purposes of this Agreement,
"Confidential Information" means the Technology and that information which
relates to (i) SUN hardware or software, (ii) Licensee hardware or software,
(iii) the customer lists, business plans and related information of either
party, and (iv) any other technical or business information of the parties,
including the terms and conditions of this Agreement. In all cases, information
which a party wishes to be treated as "Confidential Information" shall be
marked as "confidential" or "proprietary" (or with words of similar import) in
writing by the disclosing party on any tangible manifestation of the
information transmitted in connection with the disclosure, or, if disclosed
orally, designated as "confidential" or "proprietary"
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(or with words of similar import) at the time of disclosure. SUN has no
obligation of confidentiality to Licensee with respect to Derivative Works and
the specifications of the Value Added Open Packages.
7.2 Preservation of Confidentiality. The parties agree that all
disclosures of Confidential Information (as defined under Section 7.1 above)
shall be governed by and treated in accordance with the terms of the
Confidential Disclosure Agreement (the "CDA") attached hereto as Exhibit D and
incorporated herein by reference, modified as follows:
(a) the definition of "Confidential Information" shall be as set
forth in section 7.1 above notwithstanding any definition set
forth in the CDA;
(b) the use of Confidential Information shall be limited to the
scope of the licenses provided in this Agreement; and
(c) the obligations of confidentiality expressed in the CDA shall
extend three (3) years beyond termination of this Agreement,
except with respect to Sun Source Code which shall be held
confidential in perpetuity.
8.0 LIMITED INDEMNITY
8.1 The parties acknowledge that the Technology is in pre-release form and
that SUN shall not be liable for any defects or deficiencies in the Technology
or in any Product, process or design created by, with or in connection with the
Technology whether or not such defects and/or deficiencies are caused, in whole
or in part, by defects or deficiencies in the design or implementation of the
Technology. Upon FCS of the Technology by SUN, Sun will provide to Licensee a
limited indemnity as described in Sections 8.2-8.5 below.
8.2 SUN will defend, at its expense, any legal proceeding brought against
Licensee, to the extent it is based on a claim that use of the FCS or
subsequent version(s) of the Technology, (excluding pre-release versions) ("FCS
Technology") is a direct infringement of a Berne Convention copyright, and will
pay all damages awarded by a court of competent jurisdiction attributable to
such claim, provided that Licensee: (i) provides notice of the claim promptly
to SUN; (ii) gives SUN sole control of the defense and settlement of the claim;
(iii) provides to SUN, at SUN's expense, all available information, assistance
and authority to defend; and (iv) has not compromised or settled such
proceeding without SUN's prior written consent.
8.3 Should any FCS Technology or any portion thereof become, or in SUN's
opinion be likely to become, the subject of a claim of infringement for which
indemnity is provided under Section 8.2, SUN shall, as Licensee's sole and
exclusive remedy, elect to: (i) obtain for Licensee the right to use such FCS
Technology; (ii) replace or modify the FCS Technology so that it becomes
non-infringing; or (iii) accept the return of the Technology and grant Licensee
a refund of the License Fee and royalties, as depreciated on a five year
straight-line basis.
8.4 SUN shall have no liability for any infringement or claim which
results from: (i) use of other than a current unaltered version of the FCS
Technology, if such version was made available to Licensee; (ii) use of the FCS
Technology in combination with any non-Sun-provided equipment, software or
data; or (iii) SUN's compliance with designs or specifications of Licensee.
8.5 THIS ARTICLE STATES THE ENTIRE LIABILITY OF SUN WITH RESPECT TO
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE TECHNOLOGY. SUN SHALL
HAVE NO LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
OF LICENSEE OR ANY THIRD PARTY AS A RESULT OF USE, LICENSE, OR SALE OF
TECHNOLOGY.
8.6 Indemnity by Licensee. Licensee shall defend and indemnify SUN from
any and all claims brought against SUN by third parties, and shall hold SUN
harmless from all corresponding damages, liabilities, costs and expenses,
(including reasonable attorneys' fees) incurred by SUN arising out of or in
connection with Licensee's use, reproduction or distribution of the Technology
or Product(s).
9.0 LIMITATION OF LIABILITY
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9.1 Limitation of Liability. Except for express undertakings to indemnify
under this Agreement and/or breach of Sections 2.4, 2.5, 7.0 or 9.2:
a. Each party's liability to the other for claims relating to this Agreement,
whether for breach or in tort, shall be limited to one million dollars
($1,000,000).
b. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH OR ARISING OUT
OF THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC
ADVANTAGE), NO MATTER WHAT THEORY OF LIABILITY, EVEN IF THE EXCLUSIVE REMEDIES
PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF
EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH
DAMAGES. FURTHER, LIABILITY FOR SUCH DAMAGE SHALL BE EXCLUDED, EVEN IF THE
EXCLUSIVE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL
PURPOSE. The provisions of this Section 9.0 allocate the risks under this
Agreement between Sun and Licensee and the parties have relied upon the
limitations set forth herein in determining whether to enter into this
Agreement.
9.2 High Risk Activities. The Technology is not fault-tolerant and is not
designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments requiring fail-safe performance, such as in
the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons systems,
in which the failure of the Technology or Product(s) could lead directly to
death, personal injury, or severe physical or environmental damage ("High Risk
Activities"). SUN specifically disclaims any express or implied warranty of
fitness for High Risk Activities. Licensee will not knowingly use, distribute
or resell the Technology or Products for High Risk Activities and will ensure
that its customers and end-users of its Products are provided with a copy of
the notice specified in the first sentence of this Section 9.2.
10.0 TERM AND TERMINATION
10.1 Term. The term of this Agreement shall begin on the Effective Date
and shall continue for a period of five (5) years, or until terminated as
provided below. Each year for five (5) consecutive years following expiration
of the initial five (5) year term, at Licensee's sole option, Licensee may
extend the term of this Agreement for one (1) additional year. Licensee shall
indicate its intent to extend the Agreement by written notice to SUN within
thirty (30) days prior to the expiration of the preceding term. Termination is
permitted either for breach of this Agreement, upon thirty (30) days written
notice to the other party and an opportunity to cure within such thirty (30)
day period, or upon any action for infringement of Intellectual Property Rights
relating to the Technology by Licensee against SUN or any of SUN's licensees of
the Technology.
10.2 Effect of Expiration. Upon expiration of this Agreement, SUN shall
retain use, under the terms of this Agreement, of the Intellectual Property
Rights received hereunder, and Licensee shall be authorized to: (i) distribute
Product(s) containing the version of the Technology incorporated therein at the
time of expiration, subject to Licensee's continued compliance with the Test
Suites current at the time of expiration, and payment of royalties, and (ii)
retain one (1) copy of the Technology in Source Code form to support customers
having copies of Product(s) distributed by Licensee prior to the expiration
hereof. All other rights of Licensee shall terminate upon such expiration.
10.3 Effect of Termination. In the event of termination of this Agreement
by SUN in accordance with Section 10.1 above, Licensee shall promptly: (i)
return to SUN all copies of the Technology and Derivative Works thereof in
tangible or electronic form, Documentation, and Confidential Information
(collectively "SUN Property") (excluding Value Added Open Packages and
Licensee-implemented modifications to the Platform Dependent Part) in
Licensee's possession or control; or (ii) permanently destroy or disable all
copies of the SUN Property in Licensee's possession or control, except as
specifically permitted in writing by SUN; and (iii) provide SUN with a written
statement certifying that
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Licensee has complied with the foregoing obligations. All rights and licenses
granted to Licensee shall terminate upon such termination.
10.4 No Liability for Expiration or Lawful Termination. Neither party
shall have the right to recover damages or to 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 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
TERMINATION IS IN MATERIAL BREACH OF THIS AGREEMENT.
10.5 No Waiver. The failure of either party to enforce any provision of
this Agreement shall not be deemed a waiver of that provision. The rights of
SUN under this Section 10.0 are in addition to any other rights and remedies
permitted by law or under this Agreement.
10.6 Survival. The parties' rights and obligations under Sections 2.0,
4.0, 5.2, 5.3, 6.0, 7.0, 8.0, 9.0, 10.0, and 11.0 shall survive expiration or
termination of this Agreement, excluding in the event of breach by Licensee,
Licensee's rights under Section 2.0, which shall terminate.
10.7 Irreparable Harm. The parties acknowledged that breach of Sections
2.0, 5.2, 5.3, 7.0, 9.2, or 11.6 may cause irreparable harm, the extent of which
would be difficult to ascertain. Accordingly, they agree that, in addition to
any other legal remedies to which a non-breaching party might be entitled, such
party may seek immediate injunctive relief in the event of a breach of the
provisions of such Articles.
11.0 MISCELLANEOUS
11.1 Notices. All notices must be in writing and delivered either in
person or by certified mail or registered mail, postage prepaid, return receipt
requested, to the person(s) and address specified below. Such notice will be
effective upon receipt.
SUN Licensee
Sun Microsystems, Inc. Symantec Corporation
000 Xxxxxxxx Xxxxxx 00000 Xxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Associate General Counsel Attn: General Counsel
Java Products Business
11.2 Partial Invalidity. If any term or provision of this Agreement is
found to be invalid under any applicable statute or rule of law then, that
provision notwithstanding, this Agreement shall remain in full force and effect
and such provision shall be deleted unless such a deletion would frustrate the
intent of the parties with respect to any material aspect of the relationship
established hereby, in which case, this Agreement and the licenses and rights
granted hereunder shall terminate.
11.3 Complete Understanding. This Agreement and the Exhibits hereto
constitute and express the final, complete and exclusive agreement and
understanding between the parties with respect to its subject matter and
supersede all previous communications, representations or agreements, whether
written or oral, with respect to the subject matter hereof. No terms of any
purchase order or similar document issued by Licensee shall be deemed to add
to, delete or modify the terms and conditions of this Agreement. This Agreement
may not be modified, amended, rescinded, canceled or waived, in whole or part,
except by a written instrument signed by the parties.
11.4 Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions of this
Agreement in any other language shall be for accommodation only and shall not
be binding on the parties to this Agreement. All communications and notices
made or given pursuant to this Agreement, and all documentation and support to
be provided, unless otherwise noted, shall be in the English language.
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11.5 Governing Law. This Agreement is made under and shall be governed by
and construed under the laws of the State of California, regardless of its
choice of laws provisions.
11.6 Compliance with Laws. The Technology, including technical data, is
subject to U.S. export control laws, including the U.S. Export Administration
Act and its associated regulations, and may be subject to export or import
regulations in other countries. Licensee agrees to comply strictly with all such
regulations and acknowledges that it has the responsibility to obtain such
licenses to export, re-export or import the Technology or Product(s) as may be
required after delivery to Licensee.
Licensee shall make reasonable efforts to notify and inform its employees
having access to the Technology of Licensee's obligation to comply with the
requirements stated in this Article.
11.7 Disclaimer of Agency. The relationship created hereby is that of
licensor and licensee and the parties hereby acknowledge and agree that nothing
herein shall be deemed to constitute Licensee as a franchisee of SUN. Licensee
hereby waives the benefit of any state or federal statutes dealing with the
establishment and regulation of franchises.
11.8 Delivery. As soon as practicable after the Effective Date, SUN shall
deliver to Licensee one (1) copy of each of the deliverables set forth in
Exhibit A. Licensee acknowledges that certain of the deliverables are in various
stages of completion and agrees to accept the deliverables as and to the extent
completed as of the date of delivery and "AS IS." In the event any deliverable
is already in the possession or custody of Licensee, such item(s) shall, to the
extent used in connection with the rights granted in Section 2.0 above, be
subject to the terms of this Agreement, notwithstanding any pre-existing
agreement or understanding between Licensee and SUN with respect to such items.
11.9 Assignment and Change in Control. This Agreement may not be assigned
by either party without the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed, except that SUN may
assign this Agreement to a majority-owned subsidiary.
11.10 Construction. This Agreement has been negotiated by SUN and
Licensee and by their respective counsel. This Agreement will be fairly
interpreted in accordance with its terms and without any strict construction in
favor of or against either party.
11.11 Force Majeure. Except for the obligation to pay money, neither
party shall be liable to the other party for non-performance of this Agreement,
if the non-performance is caused by events or conditions beyond that party's
control and the party gives prompt notice under Section 11.1 and makes all
reasonable efforts to perform.
11.12
The following are included herein by reference as integral parts of this
Agreement:
o Exhibit A - Description of Technology and Documentation
o Exhibit B - Identification of Licensee Product(s)
o Exhibit C - Schedule of Royalties
o Exhibit D - Confidential Disclosure Agreement
o Exhibit E - Document Type Definition
o Exhibit F - Trademark License
11.13 Section References. Any reference contained herein to an article of
this agreement shall be meant to refer to all subsections of the article.
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11.14 No Competitive Restrictions. The Parties agree that nothing in this
Agreement is intended to prohibit Licensee from independently developing or
acquiring technology that is the same as or similar to the Technology, provided
that Licensee does not do so in breach of Exhibit D to this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
SUN: Licensee:
Sun Microsystems, Inc.
By: /s/ XXXX XXXXXXX By: /s/ XXXXX XXXXX
--------------------------- --------------------------
Name: Xxxx Xxxxxxx Name: Xxxxx Xxxxx
------------------------ ------------------------
(Print or Type) (Print or Type)
Title: CFO/VP Title: VP
----------------------- -----------------------
Date: 12/11/95 Date: 12/11/95
----------------------- -----------------------
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EXHIBIT A
DESCRIPTION OF TECHNOLOGY AND DOCUMENTATION
To the extent that SUN has not already delivered any of the following listed
items to Licensee as of the Effective Date of the Agreement to which this
Exhibit A is attached, SUN shall deliver each of the following items to
Licensee under the terms of the Agreement.
I. TECHNOLOGY: JAVA APPLET ENVIRONMENT
The Java Applet Environment consists of the following source code:
A. All the java files from the following Java Applet Packages:
java.lang Language Classes
xxxx.xx Stream I/O
xxxx.xxx Networking Classes
java.util General utilities
java.applet Applet Classes
java.awt Abstract Window Toolkit
java.awt.image Image Handling Classes
java.awt.peer Implementation Classes for awt
B. The source code for the Java Runtime Interpreter, which implements the Java
Virtual Machine, consisting of the Shared Part, identified as those files which
are in any "share" directory or subdirectory thereof, and the
Platform-Dependent Part, identified as other files which are compiled with the
"share" files to produce the Runtime Interpreter program.
II. TECHNOLOGY: COMPILER
The compiler consists of the development tools necessary for the creation,
modification, debugging, and analysis of Java Applets and Java classes. This
includes the debugger, profiler, native method stub generator, Applet viewer
and other software that is generally made available free of charge in binary
form as part of the compiler technology. This includes but is not limited
to the following source code:
java.tools.asm Assembler
java.tools.debug Debugging Classes
java.tools.java Parser helper Classes
java.tools.javac Compiler
java.tools.javadoc Documentation Generator
java.tools.tree Parse Tree Classes
java.tools.tty TTY Access to the Debugger
II. DOCUMENTATION:
Java Language Specification
Java API Documentation
Java Virtual Machine Specification
Java Programmer's Guide
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EXHIBIT B
IDENTIFICATION OF LICENSEE PRODUCT(S)
1. Language Products
Symantec C++ environment for Windows and Macintosh with Java support
Version of the SCALE database access software for the Java language
2. Vector Products
Visual Rapid Application development tool for Windows and Macintosh
for the Java language (Vector), and any subsequent or follow-on
products or versions thereof regardless of the name of such product
or version given by Licensee.
3. Browser Product
CyberJack (Internet browser)
4. General and Other Product(s)
Comsuite (suite of communications products)
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EXHIBIT C
SCHEDULE OF ROYALTIES
1) Royalties: Licensee shall pay to SUN the following royalties for the
following categories of Product(s):
until December 31, 1996, [*] for Language Products described in
Exhibit B; after December 31, 1996, [*] of the Language Product(s)
distributed by or for Licensee
[*] of the Browser Product(s) distributed by or for Licensee
[*] of the General Product(s), and other non-cited Product(s)
distributed by or for Licensee
[*] from the Vector Product(s) [*] thereafter. Licensee shall have the
right to buyout the royalty obligation for the Vector Products by [*].
In the event that Licensee proposes to transfer substantially all of
its rights in the Vector Product line to a third party, Licensee shall
[*], less any royalties paid by Licensee at the time of such payment
and such third party shall not be obligated to pay per copy royalties
to SUN for distribution of the Vector Product(s).
2) Platforms: (check applicable platforms)
SPARC/Solaris _________________________
Win32 _________________________
MacOS (68K, PowerPC) _________________________
Where such versions are not complete as of the Effective Date, the fee covers
the first commercial version shipped by SUN for that platform.
* Confidential treatment requested for redacted portion which has been filed
separately with the Securities and Exchange Commission.
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EXHIBIT D
CONFIDENTIAL DISCLOSURE AGREEMENT
(to be attached)
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EXHIBIT E
DOCUMENT TYPE DEFINITION
In order to ensure interoperability between all Java compliant browsers, SUN
needs to define the exact notation of applets in HTML documents. The format of
the APPLET tag is chosen to be implementation language independent and SGML
compliant. SGML compliance is important if the APPLET tag is to be accepted as
part of the HTML standard in the future.
Example:
The applet tag has the following attributes:
CODEBASE The base url of the applet. The applet's code is located relative to
this URL. If this attribute is not specified, it defaults to the
document's URL.
CODE The file in which the applet is located. This file is relative to
base url of the applet, it cannot be absolute.
ALT Alternate text which can be displayed by text only browsers.
NAME The symbolic name of the applet. This name can be used by applets in
the same page to locate each other.
WIDTH Required attribute which specifies the initial width of the applet in
pixels.
HEIGHT Required attribute which specifies the initial height of the applet in
pixels.
ALIGN The alignment of the applet, similar to the img tag.
VSPACE The vertical space around the applet, similar to the img tag.
HSPACE The horizontal space around the applet, similar to the img tag.
Note that the position of the applet in the page is determined by the width,
height, align, vspace and hspace attributes just like the img tag.
Applets can access the above attributes using the getParameter0 method call
defined in the Applet class. All attribute/parameter names are automatically
folded to lower case. Applets that require parameters in addition to the
predefined ones need to use the param tag. It is unfortunately not legal in SGML
for a tag to have an arbitrary list of attributes. That is why additional applet
parameters explicitly using the PARAM tag have to be named. For example:
In addition to the ALT tag, Licensee can include additional text and markup
before the applet end tag. Java compliant browsers will ignore this text, but
browsers that do not understand the applet tag will display it instead of the
applet. For example:
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If Licensee were using a Java enabled browser, Licensee would see an animation
instead of this static image.
Below is the formal SGML DTD for the APPLET and PARAM tags.
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TRADEMARK LICENSE
The following terms and conditions governing Java compatibility branding and
trademarks generally ("License") are incorporated by reference into the
Technology License and Distribution Agreement ("TLDA") between SUN and
Licensee, attached hereto. Where this License is more specific than or
inconsistent with the TLDA, the terms of this License shall govern. Otherwise,
the TLDA shall apply. The parties agree that:
1. DEFINITIONS
1.1. "Branded Product" means all online software or tangible copies or
units of any version of Licensee's Products being distributed in association
with any Compatibility Logo.
1.2. "Compatibility Logo" means the Java-compatible logo supplied by SUN
to Licensee from time-to-time. The current version of the logo is depicted at
the end of this License.
1.3. "Licensee's Products" means only the products described in Exhibit
B of the TLDA.
2. GRANT OF LICENSE
SUN grants to Licensee a non-exclusive, non-transferable, personal, paid-up,
royalty-free license, within the Territory in Section 3, to use the
Compatibility Logo ("License") as provided herein with respect to each of
Licensee's Products that fully meet the certification requirements of Section
4. Licensee is granted no other right, title, or license to the Compatibility
Logo or any other SUN trademark, and is specifically granted no right or
license to sublicense the Compatibility Logo or any other SUN trademarks. This
License shall apply and pass through to Licensee's distributors who distribute
Licensee's Products as transferred by Licensee (i.e., without any modifications
to the Product, product packaging, documentation or other materials)
("Distributors"). Licensee shall provide notice of this License to and enforce
its terms with Distributors. SUN shall be entitled to enforce the terms of this
License directly against any Distributor in the event Licensee fails to do so.
All subsequent references herein to "Licensee" shall include and apply to
"Distributors".
3. TERRITORY
Licensee shall not use any Compatibility Logo on or in Licensee's Products
distributed via tangible media (e.g., CD or diskettes) or on any other tangible
materials (e.g., user documentation) in countries other than those listed below
("Territory"), unless SUN expressly agrees in writing beforehand to extend the
Territory (which Sun may refuse to do in its sole discretion). This territorial
restriction shall not apply to on-line distribution of Licensee's Products over
the Internet. Licensee shall pay all costs, including fees for legal services,
registrations, recordals, and foreign language translations associated with any
extension of the Territory requested by Licensee. SUN may eliminate any country
from the Territory if it determines in its sole judgment that use or continued
use of the Compatibility Logo in such country may subject SUN or any third party
to legal liability, or may jeopardize the Compatibility Logo or any SUN
trademark in that or any other country. In such event, Licensee shall promptly
cease all use of the Compatibility Logo in such countries upon written notice
from SUN.
Australia
Austria
Belgium
Benin
Netherlands
Luxembourg
Brazil
Burkino Faso
Cameroon
Canada
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Central African Republic
Chad
Chile
China (P.R.C.)
Columbia
Congo
Czech Republic
Denmark
Egypt
France
Gabon
Germany
Greece
Guinea
Hong Kong
Hungary
India
Indonesia
Israel
Italy
Ivory Coast
Japan
Mali
Malaysia
Mauritania
Mexico
New Zealand
Niger
Norway
Philippines
Portugal
Russia
Senegal
Singapore
South Korea
Spain
Sweden
Switzerland
Taiwan
Thailand
Togo
Turkey
Ukraine
UAE
U.K.
United States
Venezuela
4. CERTIFICATION
License applies only to versions of Licensee's Products that have successfully
passed the Java Test Suites made available by SUN to Licensee pursuant to the
TLDA, and which otherwise fully comply with all other compatibility and
certification requirements of the TLDA. Upon thirty (30) days written notice by
SUN no more than two (2) times per calendar year, Licensee shall permit SUN to
inspect and test any Branded Products at a mutually-agreeable location to ensure
that they meet the compatibility requirements of the TLDA. Upon request by SUN,
Licensee shall promptly make any
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modifications to any version of a Branded Product necessary for it to meet such
compatibility requirements.
5. LOGO AND TRADEMARK USAGE
Licensee shall use the Compatibility Logo only as specified in any guidelines or
policies made by SUN concerning the appearance, placement or use of the
Compatibility Logo ("Logo Guidelines"). Licensee shall: (i) use only approved
logo artwork provided by Sun, (ii) for tangible media, display the Compatibility
Logo on external product packaging, documentation, and media (disk, CD-ROM,
tape, etc.); (iii) for online versions of Licensee's Product, display the
Compatibility Logo on web pages featuring information about the Product in GIF
images that point to the current Sun Java page (xxxx://xxxx.xxx.xxx) via
hypertext link; (iv) for both tangible-media and online versions, display the
Compatibility Logo on "splashscreens" appearing upon launch of Licensee's
Product, if any, and in general product information screens (e.g., "About",
"Help", "Info"); (v) display the Compatibility Logo on tangible marketing
collateral featuring Licensee's Products, including advertisements and
datasheets; and (vi) not display Compatibility Logo more prominently or larger
than Licensee's company name/logo and product name/logo, wherever displayed.
Licensee shall comply with the current versions of the Sun Trademark & Logo
Policies and the Java/HotJava Trademark Guidelines
[xxxx://xxxx.xxx.xxx/xx_xxxxxxxxxx.xxxx], including but not limited to using the
Java xxxx as an adjective followed by generic descriptions, marking the Java
xxxx with a (TM) symbol, and attributing the Java xxxx as a trademark of Sun
Microsystems, Inc. in a legend on packaging, splashcreens, web page, and other
collateral and materials. Licensee may not include any Sun trademark (e.g., Sun,
Java, HotJava, Solaris, etc.) in Licensee's company, business or subsidiary
names, or in the name of any of Licensee's products, services, technologies, or
web pages. Licensee shall promptly modify any usage and any material that does
not conform to the Logo Guidelines, the Sun Trademark & Logo Policies, or the
Java/HotJava Trademark Guidelines upon notice from Sun specifying the
non-conformance. Licensee shall notify its distributors and customers of any
such non-conformance as to materials or products already distributed, as may be
reasonably requested by Sun.
6. PROTECTION OF TRADEMARKS AND LOGOS
Sun is the sole owner of the Compatibility Logos (including the marks depicted
therein) and all goodwill associated therewith. Licensee's use of the
Compatibility Logos inures solely to the benefit of Sun. Licensee shall not do
anything that might harm the reputation or goodwill of the Compatibility Logo.
Licensee shall not challenge Sun's rights in or attempt to register the
Compatibility Logo, or any other name or xxxx owned by Sun or substantially
similar thereto. Licensee shall take no action inconsistent with Sun's rights in
the Compatibility Logo. If at any time Licensee acquires any rights in, or
registrations or applications for, the Compatibility Logo by operation of law or
otherwise, it will immediately upon request by Sun and at no expense to Sun,
assign such rights, registrations, or applications to Sun, along with any and
all associated goodwill. Licensee shall assist Sun to the extent reasonably
necessary to protect and maintain the Compatibility Logo worldwide, including
but not limited to giving prompt notice to Sun of any known or potential
infringement of the Compatibility Logo, and cooperating with Sun in the
preparation and execution of any documents necessary to record this License as
may be required by the laws or rules of any country. Sun may at its option
commence, prosecute or defend any action or claim concerning the Compatibility
Logo in the name.
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AMENDMENT NO. 1
TO THE
TECHNOLOGY LICENSE AND DISTRIBUTION AGREEMENT
BETWEEN SUN MICROSYSTEMS, INC. AND SYMANTEC CORPORATION
This Amendment Number One (the "Amendment No. 1") to the Technology
License and Distribution Agreement dated December 11, 1995 (the "Agreement") by
and between Sun Microsystems, Inc. and Symantec Corporation ("Licensee"), is
entered into this _____ day of _________, 1999 (the "Effective Date") by and
between the same parties.
RECITALS
WHEREAS Sun and Licensee entered into an Agreement for the purpose of licensing
the Java(TM) Applet Environment and the Java(TM) Compiler; and
WHEREAS Licensee desires to develop and distribute products based upon Sun's
Java(TM) Servlet Development Kit (JSDK), Version 2.0 technology,
NOW THEREFORE, in consideration for the mutual covenants contained herein, the
parties further agree as follows:
1.0 DEFINITIONS
The existing Section 1.13 of the Agreement is deleted and replaced with the
following revised Section 1.13:
1.13 "Technology" means each specific Java(TM) technology (excluding
Tools) licensed by Sun under the Agreement and described in Exhibit A, in
addition to that technology more fully described in the Exhibit G attached to
this Amendment No. 1.
The following new definitions are added to the Agreement:
1.17 "Java(TM) Servlet Development Kit, Version 2.0" means version 2.0
only of the Java(TM) Servlet Development Kit (hereafter "JSDK") described in
specifications from Sun, as may be revised by Sun during the Term as described
in Exhibit G.
1.18 "Java(TM) Test Suites" means the applicable test suites associated
with each Technology, as may be revised by Sun during the Term.
2.0 LICENSE GRANTS
Section 2.0 - LICENSE GRANTS of the Agreement is amended by the addition of the
following subsections:
2.1e. Sublicensing of JSDK Source Code.
Licensee may sublicense, solely for the Field(s) of Use identified in
Exhibit G, and deliver a copy of the Source Code and any Documentation
bundled with Products for JSDK only (i) to third parties only in
association with the sublicensing of Licensee Products in source code
form, and (ii) solely for the purpose of enabling such third party to
provide support and Bug Fixes for Products. Such arrangements must be
under a written agreement consistent with the terms contained herein and
any such third party shall be granted no rights to modify, distribute or
sublicense the JSDK Source Code. Licensee shall provide Sun notice of any
such third party licensee.
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2.13 Compatibility Requirements.
(i) Unless otherwise specified in an Exhibit, from time to time
during the term of the Agreement, Sun will make available to Licensee at
no cost, Java Test Suites for validating that the portion of Licensee's
Product which interprets Java bytecodes is compatible with the
then-current version of the applicable Technology and Standard Extensions.
(ii) Products must fully comply with the Documentation specified in
the Exhibit for the corresponding Technology and each release of a Product
by Licensee must pass the most current applicable Java Test Suite that was
available from Sun one hundred twenty (120) days before FCS of such
version of the Product. In the event that Licensee elects to use a version
of the Technology and/or Standard Extension(s) that is newer than that
which is required under this Section 2.13, then Licensee agrees to pass
the Java Test Suite that corresponds to such newer version.
(iii) If Licensee provides Sun with written notice of the existence
of a bug in a current Java Test Suite, then Licensee shall be released
from compatibility with the minimum portion of such Java Test Suite
necessary to avoid the impact of such bug, until such time as Sun provides
to Licensee a corrected or new Java Test Suite.
(iv) Upon request by Sun, Licensee shall promptly make any
modifications to any Product necessary for it to meet the compatibility
requirements set out in this Section 2.13.
3.0 MISCELLANEOUS
The existing Section 11.0 of the Agreement is modified to include a revised
Section 11.1 to change the Sun address as follows:
Sun
Sun Microsystems, Inc.
000 Xxx Xxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: V.P. Sales, Software and Technology
cc: General Counsel, Software and Technology
EXHIBITS.
The attached new Exhibit G is added to the Agreement to add the JSDK, version
2.0.
All other terms and conditions of the Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Sun Microsystems, Inc.: Licensee: APPROVED
[INIT]
----------
LEGAL DEPT
By: /s/ MALA S. CHANDRA By: /s/ [Signature Illegible]
----------------------------- ----------------------------------
Name: MALA S. CHANDRA Name: [Illegible]
--------------------------- --------------------------------
(Print or Type) (Print or Type)
Title: Director, Enterprise Java Title: Director, Business Development
-------------------------- -------------------------------
Date: 3/9/99 Date: March 9, 99
--------------------------- --------------------------------
2
25
EXHIBIT G
JAVA(TM) SERVLET DEVELOPMENT KIT, VERSION 2.0, JSDK
L DESCRIPTION OF TECHNOLOGY AND DOCUMENTATION:
A. Technology: Java(TM) Servlet Development Kit (JSDK), version 2.0
The Java(TM) Servlet Development Kit (JSDK), version 2.0, can be used to
develop and test server extensions based on the servlet API. Included is a
stand-alone server (called Servletrunner) that can be used to test servlets
before running them in a servlet-enabled web server.
The JSDK serves as the reference Implementation for the Java Servlet API 2.0.
This release will run on top of JDK 1.1.x as well as JDK 1.2
Package javax.servlet (redistributable as source / not modifiable)
GenericServlet.java
Servlet.java
ServletConfig.java
ServletContext.java
ServletException.java
ServletinputStream.java
ServletOutputStream.java
ServletRequest.java
ServletResponse.java
SingleThreadModel.java
UnavailableException.java
Package javax.servlet.http (redistributable as source / not modifiable)
Cookie.java
HttpServlet.java
HttpServletRequest.java
HttpServletResponse.java
HttpSession.java
HttpSessionBindingEvent.java
HttpSessionBindingListener.java
HttpSessionContext.java
HttpUtils.java
Package sun.servlet (not redistributable as source / modifiable)
ServletConnection.java
ServletLoader.java
3
26
Package sun.servlet.http (not redistributable as source/modifiable)
CacheControlHeader.java
HttpDate.jave
HttpInputStream.java
HttpOutputStream.java
HttpRequest.java
HttpRequestLine.java
HttpRequestListener.java
HttpResponse.java
HttpServer.java
HttpServerHandler.java
HttpServletConfig.java
HttpSessionImpl.java
HttpWriter.java
InvalidRequestException.java
MessageBytes.java
MessageString.java
MimeHeaderField.java
MimeHeaders.java
SessionContextImpl.java
Package sun.servlet.util (not redistributable as source/modifiable)
Ascii.java
Pool.java
Queue.java
QueueEmptyException.java
QueueFullException.java
Sources are provided for a Unix Shell script and Win32 exe to launch the
servletrunner. These files are modifiable.
B. Documentation
Source documentation is provided in the form of README.source's in the top
directory. User documentation is provided in the form of a README and a
servlet_tutorial.html file. The README and servlet_tutorial should not be
modified and should be distributed with the final distribution.
II. FIELD(S) OF USE AND PRODUCT LIST:
Field of Use: For bundling within VisualCafe Enterprise Suite only
Products: VisualCafe Enterprise Suite
4
27
Agreement Amending
Technology License and Distribution Agreement
Between
SUN MICROSYSTEMS, INC. and SYMANTEC CORPORATION
This Agreement ("Agreement") is made and entered into by and between SUN
MICROSYSTEMS, INC. ("Sun") and SYMANTEC CORPORATION ("Symantec") this 9th day of
September, 1999
Symantec and Sun entered into: (i) a Technology License and Distribution
Agreement dated December 11, 1995, as amended (the "TLDA"); and (ii) a letter
agreement dated March 28, 1997 granting Sun the right to distribute Symantec's
Just-in-Time Compiler (the "Letter Agreement"); and
The parties hereto desire to amend the TLDA and the Letter Agreement on the
terms and conditions noted herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. The capitalized terms used and not otherwise defined in this
Agreement shall have the same meaning as defined in the TLDA.
2. The TLDA is hereby amended to provide that Symantec shall have for the
term of the TLDA, a worldwide, non-exclusive, non-transferable right
and license with respect to the Java Applet Environment Version 1.2
and Upgrades thereto (collectively, the "JAE"), to: access, use [*]
the source code of the Shared Part of the Java Runtime Interpreter,
while maintaining compatibility as provided in Section 2.4 of the
TLDA, for the purposes of improving the performance of the JAE (the
"Improved JAE") and integrating the Improved JAE into Products; (ii)
distribute Products in binary code form containing the Improved JAE in
accordance with the terms of Section 2.2 a and b of the TLDA; (iii)
sublicense the Improved JAE in source code form, in accordance with
Sections 2.1(b)(iii) and 2.1(d) of the TLDA; and (iv) sublicense the
Improved JAE in source code form to Sun's other commercial source code
licensees of the JAE for the sole purpose of integrating the Improved
JAE into such licensees' products pursuant to the terms of their
respective commercial JAE source code licenses with Sun.
3. The Letter Agreement is amended to clarify that, effective as of
December 1, 1998, Sun has a perpetual, worldwide, non-exclusive,
non-transferable right and license, in accordance with Paragraph 4 of
the Letter Agreement, to: (i) distribute and sublicense Version 3.0
of Symantec's Just-in-Time Compiler (and any updates thereto; e.g.,
Versions 3.x.x) in binary form; and (ii) access and modify the source
code of Version 3.0 of Symantec's Just-in-Time Compiler (and any
updates thereto).
4. Sun acknowledges that: (i) Symantec intends to spinout its Internet
Tools Group as a separate company (the "Spinout"); and (ii) in
connection therewith, Symantec desires to transfer to the Spinout all
of Symantec's rights and obligations under the TLDA, Letter Agreement
and this Agreement. Sun agrees that if the Spinout is created within
12 months of the date of this Agreement, Sun shall consent to a one
* Confidential treatment requested for redacted portion which has been filed
separately with the Securities and Exchange Commission.
28
time assignment to and assumption by the Spinout of all rights and
obligations of Symantec under the TLDA, the Letter Agreement and this
Agreement, provided that the Spinout will not be directly or
indirectly owned or controlled by [*], or any entity directly or
indirectly owned or controlled by any of the forgoing companies, their
parents, subsidiaries, successors or assigns, at or prior to the time
of such assignment. The parties acknowledge and agree that Sun's
consent to the assignment of the TLDA to Spinout shall not affect any
subsequent assignment of the TLDA. Any such subsequent assignment or
change of control shall be governed by Section 11.9 of the TLDA. In
the event of a breach of this covenant, then the TLDA, the Letter
Agreement and this Agreement, with the exception of Sun's license to
Version 3.0 of the Just-in-Time Compiler, shall automatically
terminate. Any fees or royalties owing to Sun at the time of such
termination shall become immediately due for payment. The parties
agree that, effective upon any such assignment, the Spinout will be
bound by and will assume and discharge all obligations of Symantec
under the TLDA, the Letter Agreement and this Agreement. Sun hereby
acknowledges and agrees that any transfer of rights in the Vector
Product(s) to the Spinout shall not be deemed a transfer to a third
party for purposes of Exhibit C of the TLDA, provided that Spinout
obtains substantially all of Symantec's rights in the Vector
Product(s) in connection with such transfer.
5. Symantec agrees to provide a written statement indicating Products
sold, on a quarterly basis, pursuant to Section 4.1 of the TLDA
whether or not royalties are due. In addition, within 30 days after
the effective date of this Agreement, Symantec shall deliver to Sun a
full accounting of all royalties specified in Exhibit C of the TLDA
previously credited against the [*] royalty buy-out specified therein
as well as the [*] annual credit against royalties for the Symantec's
Just-in-time Compiler specified in the Letter Agreement.
6. This Agreement may be executed in counterpart originals. Except as
modified herein, the TDLA and the Letter Agreement remain in full
force and effect and unmodified.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be entered
into as of the date first written above.
SUN MICROSYSTEMS, INC. SYMANTEC CORPORATION
By /s/ [Signature Illegible] By /s/ [Signature Illegible]
---------------------------------- ----------------------------------
Title Interim VP/GM Java Software Title VP, Internet Tools
------------------------------- -------------------------------
* Confidential treatment requested for redacted portion which has been filed
separately with the Securities and Exchange Commission.
