SOFTWARE LICENSE AGREEMENT
Rev I
THIS SOFTWARE LICENSE AGREEMENT (this "Agreement") is made as of December 4,
1998, by and between HEWLETT-PACKARD COMPANY, a Delaware corporation ("HP"), and
LYNX REAL-TIME SYSTEMS INC., a California corporation ("Licensor").
1. DEFINITIONS
1.1 "Program" shall mean Licensor's software programs including Operating
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System, Tools and Source Code as listed and described in Exhibit A
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hereto, including all Program Enhancements, Upgrades, Versions and
localized versions thereto as further set forth below. Certain
software tools called utilities, which may be part of a public domain
software collection, are included in the Program as a convenience to
Licensee at no charge.
1.2 "Enhancements" shall mean modifications or improvements such as error
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corrections or bug fixes with respect to the functionality or
performance of the Program, which Licensor may provide for the
Program.
1.3 "Revision" shall mean a version of the Program, which contains Program
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Enhancements and is designated by Licensor by a number on the right of
the decimal point (e.g. Version 1.X)
1.4 "Version" shall mean a version of the Program which contains
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substantial and significant Enhancements, or other substantial change
in functionality or performance as compared to the previous version
(if any), and which is designated by Licensor by a number on the left
of the decimal point (e.g. Version X.0).
1.5 "Documentation" shall mean such manuals and other standard end-user
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and technical documentation that Licensor ordinarily makes available
with a Program, including amendments and revisions thereto.
1.6 "Complete Copy" of a Program shall include (i) a master copy of the
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Program in object code form which substantially satisfies all
functional specifications set forth in the Documentation, (ii) all
Documentation and technical manuals for the Program in manuscript and
mutually agreeable digital form and (iii) any other available
documentation and information regarding the Program which HP
reasonably requests to accomplish evaluation and use of the Program as
contemplated herein.
1.7 "HP Product" shall mean any HP hardware product as set forth in
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Exhibit B.
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1.8 "Per Copy Fee" shall mean the amount set forth in Exhibit B payable to
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Licensor by HP for the right to distribute and sublicense a copy of
the Program and associated user Documentation as contemplated herein.
1.9 "Lynx/HP Product Development Agreement" shall mean the Lynx/HP Product
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Development Agreement covering the LynxOS Kernel Porting effort and
the tools porting effort for the GNU-based tools (C/C++, TotalDB (GDB)
& DDD), TotalView and TimeScan.
1.10 "Run Time Software" shall mean that portion of the Program that will
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ship with the HP Product. They can include the Core Lynx OS, TCP/IP,
NFS Client, NFS Client/Server, Streams and Updates.
1.11 Royalty Generating Unit means a HP Product, which contains the "Run
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Time Software" that is shipped for revenue by HP, its subsidiaries,
divisions, affiliates or third party subcontractors.
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
2. DELIVERY AND ACCEPTANCE
2.1 Delivery. Licensor agrees to deliver to HP a Complete Copy of each
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Program listed in Exhibit A per the milestone schedule in the
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Lynx/HP Product Development Agreement or within ten (10) days after
receipt of purchase order for any other software product supplied by
Lynx.
2.2 Acceptance. For Lynx product offerings not covered under the Lynx/HP
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Product Development Agreement, HP shall have thirty (30) days from the
date of receipt of a Complete Copy of the Program to evaluate the
Program for substantial conformity with specifications, and either
accept, return for rework, or reject the Program. HP shall be entitled
to test and evaluate any Program by whatever means it deems
appropriate consistent with Licensor's rights in the Program, and
Licensor hereby grants to HP any licenses necessary for HP to perform
its evaluation. If HP returns a Program for rework, Licensor agrees to
correct the listed defects and resubmit the Program for re-evaluation
under the same acceptance procedure. In the event HP rejects a
Program, it shall give Licensor written notice of rejection stating
the reasons for its unacceptability. No payment shall be payable to
Licensor until the Program has been accepted by HP in writing or HP
fails to reject the Program within such 30-day period at which time
the Program will have been deemed accepted.
For the Lynx custom LynxOS Kernel and Tools porting effort, acceptance
will be governed by the Lynx/HP Product Development Agreement.
3. RIGHTS GRANTED AND RESTRICTIONS
3.1 License to the Run Time Software Code. Subject to the terms and
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conditions set forth herein, Licensor hereby grants to Hewlett
Packard's LaserJet Solution's Group, its subsidiaries, divisions and
affiliates, a non-exclusive, non-transferable, worldwide license to
use, reproduce, display, and distribute the Run Time Software in
object code format as bundled with the HP Product. Such bundling
requirement shall not apply in case of Enhancements, Revisions or new
Versions of the Run Time Software distributed to existing HP Run Time
Software customers. Such license shall include the right of HP to
sublicense distributors, resellers, and other third parties (including
subcontractors) to achieve the foregoing. Subcontractors must have
agreed in writing to be bound by all applicable terms and conditions
of this Agreement, including in particular Sections 3, 6 , 9 and
10.11. Distributors and resellers are subject to HP's end user
agreement.
3.2 License to the Development Systems and Tools Object Code. Subject to
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the terms and conditions set forth herein, Licensor hereby grants to
Hewlett Packard's LaserJet Solution's Group, its subsidiaries,
divisions and affiliates and third party subcontractors, a non-
transferable and non-exclusive, license to use the Program in object
code format as needed to develop the HP Product. The number of
Licenses in use at any one time may not exceed the number of
Development Systems and Tools licensed by HP pursuant to Exhibit B. In
connection with such use, HP shall have the right to make a reasonable
number of copies of the Program for normal back up and archival
purposes. HP its subsidiaries, divisions and affiliates and third
party subcontractors shall not modify, translate, reverse engineer,
decompile, disassemble or copy (except for back-up copy of the
Program) the Program.
3.3 License to the Program Source Code. Subject to the terms and
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conditions set forth herein, Licensor hereby grants to Hewlett
Packard's LaserJet Solution's Group a non-transferable and non-
exclusive license to use the source code format (including all
applicable documentation) of the Run Time Software for support,
maintenance and update of the HP Product and associated
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software. HP shall have the right to make one (1) copy of the Program
Source code in machine readable form, for backup purposes, provided
that HP reproduces all proprietary notices on the copy; and physically
transfers the Program Source Code from one computer to another,
provided that the Program Source Code is used, [*], by [*] than [*]
([*]) users at a single site and is not used on more than one computer
at a time. Hewlett Packard's LaserJet Solution's Group may use pre-
approved third party subcontractors to achieve the foregoing. Approval
of such third party subcontractors shall not be unreasonably withheld
provided that such subcontractors shall have agreed in writing to be
bound by all applicable terms and conditions of this Agreement,
including in particular Sections 3, 6 and 9.
3.4 Trademarks. Neither party is granted any right or interest to the
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trademarks, marks or trade names (collectively, "Marks") of the other
party. Neither party may use the other's Marks without the prior
written consent of the other party. Notwithstanding the foregoing,
Licensor agrees that HP may, in its discretion, use Licensor's name
and the Program name in identification of the existence of the Program
as bundled with the HP Product.
3.5 Exemption. Exempted from this Agreement is any software program that
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has been copied or derived from GNU software developed by the Free
Software Foundation, Inc. That Software falls under either the GNU
General Public License or the GNU Library General Public License, as
in the case of libg++. The Lynx user's documentation shows which
software is copyrighted by the Free Software Foundation. HP has the
right to obtain a machine-readable copy of the source code for the
Lynx distributed GNU software at a price that covers the cost of
handling.
3.6 Licensed Program. HP shall not be an owner of any copies of the
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licensed Program, but, rather, is licensed pursuant to this agreement
to use such copies. HP acknowledges and agrees that, as between HP and
Licensor, all right, title, and interest in the Program and any part
thereof, including, without limitation, all rights to patent,
copyright, trademark and trade secret rights and all other
intellectual property rights therein and thereto, and all copies
thereof, in whatever form, including any written documentation and all
other material describing such Program, shall at all times remain
solely with Licensor.
3.7 Licensee Modification. Notwithstanding the forgoing, Licensee shall
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retain all right, title and interest in and to modifications to the
Program made by Licensee pursuant to the license in Section 3 above,
subject always to Licensor's ownership rights in the underlying
Program.
4. PROGRAM MAINTENANCE AND SUPPORT
4.1 Maintenance and Support.
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(a) Licensor agrees to provide HP with ongoing maintenance and
support for the Program and other software supplied under this
Agreement as set forth in Exhibit C hereto. Licensor agrees to
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maintain such number of qualified personnel as is necessary to
provide such timely and knowledgeable maintenance and support
service. Annual minimum support fee requirements are defined in
Exhibit B.
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(b) Notwithstanding any termination of this Agreement, Licensor
agrees to maintain and support the Program distributed by HP for
at least [*] ([*]) years after such Program is included in a HP
Product for distribution hereunder, provided that HP maintains an
annual support dollar minimum of $[*] or enters into a [*]
agreement.
4.2 Technical Assistance and Training. Licensor agrees to provide to HP
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such technical assistance and training to HP personnel as may be
reasonably requested in order for HP to use, reproduce, bundle and
distribute the Program as contemplated herein, as further set forth in
Exhibit D.
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[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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4.3 Functionality Enhancements. It is expected that the Licensor shall
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through the duration of this agreement continually enhance the
Program's functionality (enhancements, revisions and versions) to
remain among the leaders in their given field of technology as part of
their normal course of business. Licensor will conduct quarterly
meetings with HP to review their technology roadmap and delivery dates
for such roadmap. At these meetings, HP will be able to provide input
on the Licensor's technology roadmap. Licensor shall consider making
commercially reasonable efforts in meeting the technology needs of HP
for which HP has substantial dependency. HP and Licensor shall
mutually agree on acceptance testing for any and each new program
functionality. HP may, however, from time to time request significant
functionality enhancements to the Program which are outside of the
Licensor's technology roadmap or the roadmap's time frames. Licensor
agrees to develop these enhancements if both parties agree to the
enhancement proposal, which may provide for additional NRE payments by
HP to Licensor. [*] Prior to commencing work, Licensor will provide HP
with a written estimate of the total fee for the proposed enhancement
and the final fee shall not exceed the estimate by more than fifteen
percent (15%) unless mutually agreed to by HP and Licensor.
5. PAYMENT
5.1 Royalty. In consideration for the rights and licenses granted
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to HP under this Agreement, HP agrees to pay Licensor a Per Copy Fee
royalty for each copy of the Run Time Software that HP distributes as
bundled with the HP Product (net after returns), in the amount set
forth in Exhibit B. Enhancements to the Run Time Software's
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functionality (enhancements, revisions and versions) are [*] as set
forth in Exhibit B. Such royalty will [*] the right to [*] appropriate
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Documentation. [*]. The "Run Time Update Right" fee detailed in
Exhibit B gives HP the right to update existing Run Time Software
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customers with the latest Revision or new Version of the Run Time
Software. [*]. Other fees for LynxOS Development System Licenses and
LynxOS Source Code Licenses including annual maintenance and support
are also detailed in Exhibit B.
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5.2 Payment. A Per Copy Fees will accrue on the date that a Royalty
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Generating Unit is shipped or in the case of a Revision or new Version
of the Run Time Software shipped to existing customers, when that
distribution occurs. All accrued Per Copy Fees will be paid by HP to
Licensor within thirty five (35) days after the end of each HP fiscal
quarter, which ends on the last day of each January, April, July and
October. Payments will be accompanied by a report stating the number
of copies of the Run Time Software, Revision or new Version
distributed in the relevant quarter, and the calculation for the
royalty payment. All other Fees will be paid to Licensor within forty
(40) days after receipt of invoice. All such invoices shall reference
a valid purchase order number issued by HP.
5.3 Audit. Upon fifteen (15) days prior written notice to HP, Licensor
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may, at its own expense, appoint a nationally recognized independent
auditor, to whom HP has no reasonable objection, to audit and examine
such records at HP's offices during normal business hours, solely for
the purpose of confirming the accuracy of royalty payments hereunder.
Such auditor shall be subject to an appropriate non-disclosure
agreement executed prior to any such audit. Such audit may be made no
more often than once every twelve calendar month period. Should an
audit discover any errors or omissions by HP amounting to more than 5%
of the amount due during any given period audited, HP shall reimburse
Licensor for the cost of the audit.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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5.4 [*]. Licensor warrants that the amounts payable hereunder by HP are
[*] than [*] of licenses for those versions of the Run Time Software
for shipment in [*].
5.5 Taxes. Licensor shall be solely responsible for taxes on amounts paid
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to Licensor by HP under this Agreement, including all state and local
use, sales, property (ad valorem) and similar taxes, provided that HP
provides Licensor with an appropriate reseller certificate.
6. WARRANTY AND INDEMNIFICATION
6.1 General Warranty. Licensor warrants that it owns or has licensed all
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rights to each Program and accompanying Documentation, including all
portions thereof (except as described in section 3.5), and that such
interests are free of any and all restrictions, settlements, judgments
or adverse claims. Licensor warrants it has full power and authority
to grant HP the rights granted herein including the right to use,
reproduce and distribute each Program and appropriate Documentation
worldwide and to authorize third parties to do the same.
6.2 Program Warranty. Licensor warrants that each Program will operate in
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accordance with and substantially conform to the specifications set
forth in the Product Description and Specifications as set out in
Exhibit A of the Lynx/HP Product Development Agreement or as
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subsequently modified by mutual agreement of the parties. In the event
of a non-compliance, HP's remedy is to have the issue resolved under
the "Maintenance and Support" of Exhibit C.
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6.3 Date Processing Compliant. Licensor warrants that the Lynx OS Run Time
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Software is date processing compliant for issues arising within the
term of this agreement (i.e. Year 2000). Date processing compliant
programs will perform without error, loss of data or loss of
functionality arising from any failure to process, calculate, compare
or sequence date data accurately. In addition, date processing
compliant products will not cause any associated products or systems
in which they may be used to fail in any of described above. A
specific year 2000 Compliance Warranty will remain in effect through
December 31, 2000, notwithstanding any other warranty period specified
in this Agreement. In the event of a non-compliance, HP's remedy is to
have the issue resolved under the "Maintenance and Support" of Exhibit
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C.
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6.4 [*] Should any claim or breach arise under 6.1, 6.5 or 6.6, HP
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shall have the [*] to [*] of any [*] under this Agreement. HP agrees
to place the same in [*] or [*]
6.5 No Infringement. Licensor warrants that the Program, Documentation,
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trademarks, copyrights and trade names related to the Program do not
violate or infringe any patent, copyright, trade secret or other
proprietary right of any third party and that Licensor is not aware of
any facts upon which such a claim for infringement could be based.
6.6 Infringement Indemnity. Licensor will indemnify, hold harmless and
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defend any claim, suit, or proceeding brought against HP or its
customers insofar as it is based on a claim that the Program or
Documentation, or any part thereof, furnished by Licensor under this
Agreement constitutes an infringement of any third party's patent,
copyright, trademark, trade name, or unauthorized trade secret use;
provided that Licensor is notified promptly in writing of such claim,
and given authority, information and assistance (at Licensor's
expense) to handle the defense and/or settlement of any such claim,
suit or proceeding. Licensor agrees to pay all damages and costs
awarded therein against HP and its customers.
In case any Program or Documentation or any part thereof in such suit
is held to constitute an infringement and its use is enjoined,
Licensor shall, at its own expense and at its option, either procure
for HP and its customers the right to continue use or, if applicable,
replace the same with a non-infringing program and documentation of
equivalent function and performance, or modify them so they become
non-infringing without detracting from function or performance.
Notwithstanding the foregoing, Licensor shall have no responsibility
for claims arising from (i) modifications of the Program made by HP if
such claim would not have arisen but for such
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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modifications, or (ii) combination or use of the Program with HP
Products if such claim would not have arisen but for such combination
or use.
6.7 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PROGRAM
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IS PROVIDED "AS IS". LICENSOR MAKES NO OTHER WARRANTIES, EITHER
EXPRESS OR IMPLIED, REGARDING THE PROGRAM, ITS MERCHANTABILITY OR ITS
FITNESS FOR ANY PARTICULAR PURPOSE EXCEPT AS PROVIDED FOR IN THE
SPECIFICATIONS IN EXHIBIT A. LICENSOR DOES NOT WARRANT THAT USE OF THE
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PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE PROGRAM WILL
OPERATE WITH THE COMBINATION OF HARDWARE AND SOFTWARE SELECTED BY HP.
7. TERM AND TERMINATION
7.1 Term. Unless otherwise terminated earlier under this Section 7, this
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Agreement shall commence as of the date first set forth above, and
shall continue for a period of five (5) years after such date. This
Agreement will renew automatically for additional one (1) year periods
unless written notice is given by one party to the other as to its
intention not to renew this Agreement at least thirty (30) days prior
to the end of the initial or any subsequent term.
7.2 Termination for Breach. Either party may terminate this Agreement by
----------------------
written notice to the other party if the other party breaches any
material provision of this Agreement and such breach is not cured
within sixty (60) days after written notice thereof is received by the
breaching party. This Agreement is predicated on "HP-Lynx Product
Development Agreement" being successfully completed. Failure to
complete the "HP-Lynx Product Development Agreement" shall be
considered breach and grounds to terminate this SOFTWARE LICENSE
AGREEMENT. Failure to comply with support obligations under this
Agreement will be considered breach and grounds to terminate this
Software License Agreement.
7.3 Effect of Termination. Notwithstanding any termination of this
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Agreement, all licenses granted to end users prior to the date of
termination for use of the Run Time Software shall survive. In the
event that this Agreement is terminated by HP due to breach by
Licensor, the licenses granted to HP under Section 3 shall survive so
long as HP continues to pay Licensor the applicable Per Copy Fees
under Section 5.
7.4 Survival. Notwithstanding any termination of this Agreement, the
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following provisions of this Agreement shall survive for the relevant
period of time set forth therein, if any: Sections 3.5, 3.6 (Rights
Granted and Restrictions), 4.1 (Support), 5.1, 5.2, 5.3 (Payment), 6
(Warranty and Indemnification), 8 (Limited Liability), 9 (Confidential
Information) and 10 (Other Provisions).
8. LIMITED LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST
PROFITS, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES ARISING FROM ANY
CLAIM OR ACTION HEREUNDER, BASED ON CONTRACT, TORT OR OTHER LEGAL
THEORY, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL EITHER PARTY BE LIABLE
TO THE OTHER PARTY FOR DAMAGES FOR ANY CAUSE WHATSOEVER IN AN AMOUNT
IN EXCESS OF THE AMOUNTS PAYABLE TO LICENSOR UNDER THIS AGREEMENT AND
THE HP/LYNX PRODUCT DEVELOPMENT AGREEMENT. THIS SECTION 8 REPRESENTS
REASONABLE ALLOCATION OF RISK.
9. CONFIDENTIAL INFORMATION
9.1 The Program. All Programs in object code form and related
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Documentation provided to HP hereunder are deemed non-confidential,
and HP is not under any obligation to Licensor to restrict access to
or use of such Programs in object code form or related Documentation,
provided HP otherwise complies with the terms of this Agreement.
9.2 Confidential Information. During the term of this Agreement, either
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party may receive or have access to technical information, as well as
information about product plans and strategies, promotions, customers
and related non-technical business information which the disclosing
party considers to be confidential ("confidential information"). In
the event such information is disclosed, the parties shall first agree
to disclose and receive such information in confidence. If then
disclosed, the information shall (i) be marked as confidential at the
time of disclosure, or (ii) if disclosed orally but stated to be
confidential, be designated as confidential in a writing by the
disclosing party summarizing the confidential information disclosed
and sent to the receiving party within a reasonable period of time
after such oral disclosure. Notwithstanding any provision to the
contrary, all source code provided by either party to the other, and
all business information with respect to any unpublished or future
Licensor or HP products, are deemed confidential information for the
purposes of this Section 9.
9.3 Nondisclosure. Confidential information may be used by the receiving
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party only with respect to performance of its obligations under this
Agreement, and only by those employees of the receiving party who have
a need to know such information for purposes related to this
Agreement. The receiving party shall protect the Confidential
Information of the disclosing party by using the same degree of care
(but not less than a reasonable degree of care) to prevent the
unauthorized use, dissemination or publication of such Confidential
Information, as the receiving party uses to protect its own
confidential information of like nature. The receiving party's
obligation under this Section 9 shall be for a period of three (3)
years after the date of disclosure except for either parties' source
code which shall be held confidential in perpetuity. The foregoing
obligation shall not apply to any information which is: (i) already
known by the receiving party prior to disclosure; (ii) publicly
available through no fault of the receiving party; (iii) rightfully
received from a third party without a duty of confidentiality; (iv)
disclosed by the disclosing party to a third party without a duty of
confidentiality on such third party; (v) independently developed by
the receiving party prior to or independent of the disclosure; (vi)
disclosed under operation of law; or (vii) disclosed by the receiving
party with the disclosing party's prior written approval.
9.4 Notification. Each party agrees to notify the other promptly on the
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event of any breach of security under conditions in which it would
appear that any confidential information was prejudiced or exposed to
loss. Each party shall, upon request of the other, take all other
reasonable steps necessary to recover any compromised confidential
information disclosed to or placed in the possession of each party by
virtue of this Agreement. Each party shall individually bear the cost
of taking any such steps.
9.5 Remedies. Each party acknowledges that any breach of any of its
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obligations under this section 9 is likely to cause or threaten
irreparable harm to the other, and accordingly, agree that in such
event, the aggrieved party shall be entitled to equitable relief to
protect its interest therein, which will be limited to preliminary and
permanent injunctive relief for both HP and Licensor but will not
limit the aggrieved party from seeking expanded remedies from other
unrelated third parties.
10. OTHER PROVISIONS
10.1 Publicity. Each party agrees not to publicize or disclose the
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existence or terms of this Agreement to any third party (except as
allowed in this agreement in section 3) without the prior written
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consent of the other except as required by law. In particular, no
press releases shall be made without the mutual written consent of
each party.
10.2 Independent Contractors. The relationship of the parties under this
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Agreement is that of independent contractors, and neither party is
an employee, agent, partner or joint venturer of the other.
10.3 Relationship Managers. Each party designates the person(s) set
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forth in Exhibit E as the primary contact(s) of each party with
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respect to this Agreement, which person(s) may be redesignated by a
party by notice to the other.
10.4 Dispute Resolution. In the event of disagreement with respect to
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any aspect of this Agreement, the parties agree to discuss in good-
faith to reach an amicable resolution, and to escalate such
resolution process to the appropriate members of their respective
management organization who have the power and authority to achieve
a successful resolution.
10.5 Notice. Unless otherwise stated, all notices required under this
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Agreement shall be in writing and shall be considered given upon
personal delivery of the written notice or within forty eight (48)
hours after deposit in the U.S. Mail, certified or registered, and
addressed to the appropriate relationship manager as set forth in
Exhibit E.
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10.6 No Assignment. Neither party may assign or transfer any of the
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rights or responsibilities set forth herein, or change its control
of ownership, without the express written consent of the other party
(which consent shall not be unreasonably withheld or delayed) and
any purported attempt to do so shall be deemed void.
10.7 Governing Law. This Agreement is made under and shall be construed
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in accordance with the law of the State of California, without
reference to conflict of laws principles. Any claim or suit with
respect to this Agreement shall be brought in the jurisdiction in
which the non-complaining party resides.
10.8 Severability. The terms of this Agreement shall be applicable
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severally to each Program, if more than one, and any dispute
affecting either party's rights or obligations as to one or more
Program(s) shall not affect the rights granted hereunder as to any
other Program. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, then
the remaining provisions will nevertheless remain in full force and
effect, and the parties will negotiate in good-faith a substitute,
valid and enforceable provision which most nearly effects the
parties' intent in entering into this Agreement.
10.9 Headings. The captions and headings used in this Agreement are for
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convenience in reference only, and are not to be construed in any
way as terms or be used to interpret the provisions of this
Agreement.
10.10 No Distribution Obligation. Except as expressly provided herein, HP
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may in its sole discretion decide to distribute or not distribute
the Program as it deems appropriate. Nothing in this Agreement shall
be construed or interpreted as placing a "best efforts" standard
upon HP with respect to the use and distribution of the Program, or
placing any minimum obligation to pay Per Copy Fees.
10.11 Non-Restrictive Relationship. Nothing in this Agreement shall be
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construed to preclude HP from independently developing, acquiring
from other third parties, distributing or marketing software
programs or other products which may perform the same or similar
functions as the Programs provided under this Agreement. Except that
HP itself or other third parties they contract with to provide the
same or similar functions may not reverse engineer, decompile,
disassemble or use the Source Code provided under this Agreement to
develop such products or programs.
10.12 Modifications. This Agreement may be modified only by a writing
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signed by an authorized representative of each party.
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10.13 Waiver. Neither party's failure to exercise any of its rights
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hereunder shall constitute or be deemed a waiver or forfeiture of
any such rights.
10.14 Force Majeure. Nonperformance of either party will be excused to
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the extent that performance is rendered impossible by strike, fire,
flood, governmental acts or orders or restrictions or other similar
reason where failure to perform is beyond the control and not caused
by the negligence of the non-performing party, provided that the
non-performing party gives prompt notice of such conditions to the
other party and makes all reasonable efforts to perform.
10.15 Export Control. Each party agrees to comply with all applicable
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United States laws and regulations which may govern the export of
Program abroad, including the Export Administration Act of 1979, as
amended, any successor legislation, and the Export Administration
Regulations issued by the Department of Commerce.
10.16 Entire Agreement. This document represents the entire agreement
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between the parties as to the matters set forth herein and
supersedes all prior discussions, representations or understandings
between them.
10.17 Exhibits. Each of the following Exhibits referred to in this
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Agreement is incorporated in full in this Agreement wherever
reference to it is made:
EXHIBIT A PROGRAM DESCRIPTION
EXHIBIT B FEES
EXHIBIT C MAINTENANCE AND SUPPORT
EXHIBIT D TECHNICAL ASSISTANCE AND TRAINING
EXHIBIT E RELATIONSHIP MANAGERS
10.18 Counterparts. This Agreement may be executed in counterparts, each
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of which shall be deemed
an original.
Agreed:
HEWLETT-PACKARD COMPANY LYNX REAL-TIME SYSTEMS
By: /s/ Bruce Schrepple By: /s/ Inder M. Singh
Print Name: BRUCE SCHREPPLE Print Name: INDER M. SINGH
Title: CBLU Controller Title: CEO
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EXHIBIT A
PROGRAM DESCRIPTION and SPECIFICATONS
- By reference the specifications detailed in the HP/Lynx Product Development
Agreement Exhibit A are included in this Exhibit A.
--------- ---------
- Provide a LynxOS 3.0.0* functionally equivalent product that supports
the [*] or any [*] family member that Lynx supports#.
- Provide a LynxOS 3.0.0*functionally equivalent product that supports
the Intel X86*.
- Support HP-UX version 10.20* as a host for LynxOS 3.0.0* cross development
targeting the [*] or any [*] family member that Lynx supports#.
- Port the LynxOS SunoS 4.1.x*/5.x* Cross Development Kit (CDK) to HP-UX
10.20*. The capabilities, features, utilities, and operation on the
HP/UX should be similar to the SunOS CDK.
- Provide a LynxOS native CDK (Total View and Time Scan) for Intel X86* target
development.
* It is expected that the Licensor shall through the duration of this agreement
continually enhance the Program's functionality (enhancements, revisions and
versions) to remain among the leaders in their given field of technology as
part of their normal course of business and that the improved functionality is
covered under this Software License Agreement.
# This includes any [*] compliant CPU or CPU core that conforms to the [*]
instruction set architecture. CPU specific differences (i.e. caches, TLB, MMU,
etc.) within a [*] processor family may impact the CPU support portion of the
LynxOS source and/or BSP. If HP selects a [*] CPU not currently supported by
Lynx, HP has the option to perform the porting efforts itself or mutually agree
with Licensor on a business arrangement for the development work to support the
CPU.
[*] = Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
9
1) Products (object and source code)
Source Binary Operating System Components
--------------------------------------------------------------------------------
X X LynxOS 3.0.0 and follow-on OSs.
--------------------------------------------------------------------------------
X X LynxOS 3.0.M integrated into Lynx MAIN product release.
--------------------------------------------------------------------------------
X X LynxOS supporting [*] processors supported by Lynx
--------------------------------------------------------------------------------
X X Core LynxOS 3.0.0:
. Kernel binaries/libraries
. Applications RT-libraries
. Shared Objects
. POSIX 1003.1 - Operating System Definition API
. POSIX 1003.1b - Real-Time extensions API
. POSIX 1003.1c - Threads extensions (1003.4a Draft 4) API
. UNIX Multi-process model
. Multi-threaded support
. Deterministic Task Response
. Pre-emptible kernel
. Virtual memory addressing (HW MMU support)
. Demand-Paged Virtual Memory
. Real-Time scheduling
. Kernel and application threads
. Uniform global priorites
. Priority Inheritance
. Real-Time I/O
. Dynamically loadable device drivers. LynxOS drivers
model System V device drivers with standard entry points
(open, close, write, ioctl, ioinset, install, uninstall)
. UNIX-like hierarchical file system
. Advanced Interrupt Handling Technology
. Server message block (SMB) support for seamless
connectivity to the Windows world.
. Remote Procedure Call (RPC)
. ELF Object Format
. User Mode applications will have access to 64-bit data.
Libraries will not be changed to pass or manipulate
long-long data types. Support will include the ability
for gdb to view and modify the long-long data type.
Additional functionality will be added to libc to print
long-long data via stdio.
. SVR4-Style (no dlopen and friends) libraries and
capabilities as in LynxOS 3.0.0.
--------------------------------------------------------------------------------
X X TCP/IP stack conforming to BSD 4.4 Lite release with both
Client and Server support, including: telent, ftp, tftp,
ppp, cslip, slip.
--------------------------------------------------------------------------------
X X NFS Client
--------------------------------------------------------------------------------
X X NFS Client / Server
--------------------------------------------------------------------------------
X X System V release 3.2 STREAMS support and conforming TLI
library support and access to TCP-IP stack using the TLI
interface
--------------------------------------------------------------------------------
[*] = Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
10
--------------------------------------------------------------------------------
Source Binary Development Tool Components
--------------------------------------------------------------------------------
X X LynxOS 3.0.M Porting Kit for [*] & other
[*] processors supported Lynx.
--------------------------------------------------------------------------------
X X HP-UX Cross Development Kit (binary) targeting the
[*] & other [*] processors supported Lynx.
--------------------------------------------------------------------------------
X X Cygnus 97R1 GNU tool chain with Total/db and SKDB
executable on an HP-UX 10.20 host.
--------------------------------------------------------------------------------
X TotalView for [*] on HP-UX 10.20 host.
--------------------------------------------------------------------------------
X TimeScan for [*] on HP-UX 10.20 host.
--------------------------------------------------------------------------------
[*] = Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
11
EXHIBIT B
FEES
Lynx Run-Time License Royalty Cost
------------------------------------
Lynx Run Time Royalty Table
-------------------------------------------------------------------------------
Per Unit Price @ [*]
-------------------------------------------------------------------------------
Core Lynx OS
* [*] $[*] $[*]
# [*] $[*] $[*]
--------------------------------------------------------------------------------
TCP/IP
* [*] $[*] $[*]
# [*] $[*] $[*]
--------------------------------------------------------------------------------
NFS Client
* [*] $[*] $[*]
# [*] $[*] $[*]
--------------------------------------------------------------------------------
NFS Client/Server
[*] $[*] $[*]
# [*] $[*] $[*]
--------------------------------------------------------------------------------
STREAMS
* [*] $[*] $[*]
# [*] $[*] $[*]
--------------------------------------------------------------------------------
Run time Update Right & * [*] $[*] $[*]
# [*] $[*] $[*]
--------------------------------------------------------------------------------
* [*] is defined as any model [*] laser jet printer product that is developed
and deployed by HP LSG - Boise, at this PPM or greater.
# [*] is defined as any model color laser jet printer product that is developed
and deployed by HP LSG - Boise.
@ [*] means that once the [*] volume times the per [*] equals the [*] equals the
in each HP fiscal quarter that [*] royalty payments are required during that
HP fiscal quarter.
HP has the option to use it's own solution and [*] fees, as long as the HP
solution does not include any Lynx intellectual property.
& The "Run Time Update Right" gives HP the right to update existing Run Time
Software customers with the latest Revision or new Version of the Run Time
Software. HP has the option to employ the "Run Time Update Right" by paying this
additional amount on each HP product as it ships them or they may choose not to
pay for the "Run Time Update Right" at time of shipment but can still update
any portion of the installed base in the future by paying an additional Core
Lynx OS fee at the time of update for each individual update.
Lynx Open Development Environment Cost
--------------------------------------
The price for the LynxOS Open Development Environment which includes the listed
LynxOS feature set and associated GNU-based Cross Development Environment is as
follows:
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
12
LynxOS Development System License Pricing
Software License Agreement - Hewlett-Packard Co. and Lynx Real-Time Systems Inc.
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