SOFTWARE LICENSING AGREEMENT
SOURCE CODE LICENSE AND DERIVATIVE PRODUCT DISTRIBUTION
Agreement # S-1163
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THIS Agreement (the "Agreement") is made and entered into in San Jose,
California, and is effective as of June 8, 1999 ("Effective Date") between Lynx
Real-Time Systems, Inc., a California corporation with principal offices at 2239
Samaritan Drive, San Jose, CA 95124 ("Lynx"), and Rockwell Collins, Inc., a
Delaware corporation, with offices at 400 Collins Road, NE, Cedar Rapids, IA
52498 ("Licensee").
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE
AS FOLLOWS:
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1. DEFINITIONS
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1.1 "Source Code" shall mean NFS Client and Server ("NFS"), and LynxOS
3.0.1 Development Operating System ("LynxOS"), which both include human-readable
code for version 3.0.1 and any later releases provided for Licensee by Lynx
under the Priority Software Support Agreement . LynxOS contains source code for
the PowerPC, and also includes test suites, electronic (FrameMaker) versions of
the LynxOS Documentation, and media.
1.2 "Software Tools" shall mean Total View, TimeScan, and Insure++, in
object code only (not source code) and any later releases provided for Licensee
by Lynx under the Priority Software Support Agreement effective June 8, 1999.
1.3 "ODE" means Open Development Environment, which includes LynxOS as
well as various other tools (but not including Software Tools). Certain tools
called utilities, which may be part of a public domain software collection, may
be included in the ODE as a convenience to Licensee at no charge. Such
utilities, if licensed by Licensee, shall be licensed under separate agreement.
1.4 "LynxOS" means the binary code format of LynxOS 3.0.1 Development
Operating System (and any later releases provided for Licensee by Lynx under the
Priority Software Support Agreement effective June 8, 1999.
1.5 "NFS" shall mean the binary code format of NFS Client and Server
version 3.0.1 and any later releases provided for Licensee by Lynx under the
Priority Software Support Agreement effective June 8, 1999.
1.6 "Binary Distributables" means the binary code format (not the source
code format) of LynxOS and NFS, including any modifications made by Licensee.
1.7 "Derivative Product" means a product developed and marketed by
Licensee which a) is based on the LynxOS, NFS or ODE; b) the Licensee adds
additional software which runs as part of LynxOS and NFS, and provides
additional or modified functionality; c) the end-user of the system cannot
directly access LynxOS or NFS and run general programs on LynxOS or NFS; d) the
system is marketed for a specialized application, provided by the modifications
added by Licensee, and not marketed or used as a general purpose computer or
workstation; and e) may or may not include functional applications layers.
1.8 "Agreement" shall mean this SOFTWARE LICENSING AGREEMENT SOURCE CODE
LICENSE AND DERIVATIVE PRODUCT DISTRIBUTION, together with Exhibit A-SOURCE CODE
SOFTWARE LICENSE & DERIVATIVE PRODUCT DISTRIBUTION EXHIBIT, Exhibit B-PRODUCT
LIST & PRICING SCHEDULE, Exhibit C -END-USER SUBLICENSE RESTRICTIONS, Exhibit D-
LICENSED USERS and Exhibit E-PROPRIETARY NOTICE.
1.9 "Sale or Selling. All references in this Agreement to the "sale" or
"selling" of products shall mean the granting of a license as defined in this
Agreement.
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.
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1.10 "Documentation" means all the manuals and other related user
documentation normally provided by Lynx for use with the Source Code, Software
Tools and/or ODE.
2. GRANT OF LICENSE
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2.1 License. Subject to the terms and conditions of this Agreement, Lynx
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hereby grants Licensee the rights as defined in Exhibit A, attached hereto.
Licensee and Lynx agree to the restrictions, obligations and other terms set
forth in Exhibit A.
3. PAYMENT & COMPENSATION
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3.1 Fees & Royalties. Licensee shall pay fees, if any, and royalties
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according to the terms of Exhibits A & B. Upon execution of this Agreement, Lynx
will invoice Licensee for all applicable fees as defined in Exhibit B. In
addition, Lynx shall invoice Licensee for additional Source Code, Software Tools
or ODE ordered by Licensee and for any other amounts due to Lynx hereunder as
such amounts are incurred. Licensee agrees to pay all invoices, with the
exception of royalties, which are discussed in subsection 3.3 below, within
forty-five (45) days after Licensee receives all items included on such invoice.
3.2 Taxes. All duties and taxes payable in the country of manufacture of
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the Source Code, Software Tools or ODE due under the laws of that country shall
be borne by Lynx. Lynx is liable for and shall pay all taxes, impositions,
charges and exactions imposed on or measured by this Agreement except those
Licensee specifically agrees or is required by law to pay and which are
separately stated on Lynx's invoice. Prices shall not include any taxes,
impositions, charges and exactions for which Licensee has furnished an exemption
certificate.
3.3 Reports. Licensee shall, within forty-five (45) days of the end of
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each calendar quarter, deliver to Lynx a report detailing the number of copies
of Binary Distributables made and the number of Derivative Products distributed
by Licensee during the previous calendar quarter, and setting forth the
aggregate royalties due and owing to Lynx thereon. A payment for the amount of
aggregate royalties owed shall be sent by Licensee to Lynx within forty-five
(45) days of the end of each calendar quarter. All payments hereunder will be in
U.S. Dollars, without deductions of any kind. Royalty payments made by Licensee
under this Agreement will be non-refundable to Licensee, except as otherwise
stated in Section 11.1 herein.
3.4 Audit Rights. Licensee agrees to make and to maintain until the
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expiration of five (5) years after the payment in question under this Agreement
is due, sufficient books, records and accounts regarding Licensee's copying for
internal use and distribution of Derivative Products in order to calculate and
confirm Licensee's royalty obligations hereunder. Lynx shall have the right not
more than once every twelve (12) months to examine such books, records and
accounts during Licensee's normal business hours to verify Licensee's reports on
the amount of payments made to Lynx under this Agreement, and Licensee's
compliance with the terms and conditions of this Agreement. If any such
examination discloses a shortfall in the royalties due to Lynx hereunder,
Licensee shall reimburse Lynx for the full amount of shortfall. Should an audit
discover any errors or omissions by Licensee amounting to more than five percent
(5%) shortfall of the amount due during the given calendar quarter, Licensee
shall reimburse Lynx for the reasonable costs of such audit. Any audit shall be
performed by a mutually acceptable accounting auditor. Such audit may also
include Lynx technical personnel, as approved by Licensee.
4. PROPRIETARY RIGHTS
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4.1 Source Code, Software Tools and ODE. Licensee shall not be an owner of
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any copies of the Source Code, Software Tools or ODE, but, rather, is granted
particular rights pursuant to this Agreement. Licensee acknowledges and agrees
that, as between Licensee and Lynx, all right, title and interest in the Source
Code, Software Tools and ODE, 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 Source Code, Software Tools and ODE, shall at all times
remain solely with Lynx and its Licensor(s), except as otherwise stated in
Section 8.1 herein.
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4.2 Licensee Modifications. Notwithstanding the foregoing, Licensee shall
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retain all right, title and interest in and to modifications to the Source Code,
Software Tools and ODE made by Licensee pursuant to the license granted herein
above, subject always to Lynx's ownership rights in the underlying Source Code,
Software Tools and ODE.
5. CONFIDENTIALITY
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5.1 General. Lynx represents and Licensee agrees that the Source Code,
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Software Tools and ODE constitute the confidential and proprietary trade secrets
of Lynx or its licensors, and that Licensee's protection thereof is essential to
this Agreement and is a condition of Licensee's use and possession of the Source
Code, Software Tools and ODE. Licensee represents and Lynx agrees that the
Derivative Product and the design information related to the Derivative Product
are confidential and proprietary trade secrets of Licensee, subject always to
Lynx's or its licensors' ownership and proprietary trade secret rights in the
underlying Source Code, Software Tools and ODE, and that Lynx's protection
thereof, is essential to this Agreement. Licensee shall retain in strict
confidence any and all elements of the Source Code, Software Tools and ODE and
use the Source Code, Software Tools and ODE only as expressly licensed herein.
Licensee agrees that it will under no circumstances distribute or in any way
disseminate or disclose the Source Code, Software Tools and ODE to third
parties, except as expressly provided in this Agreement. Lynx shall retain in
strict confidence any and all elements of the Derivative Product and the design
information related to the Derivative Product.
In addition, both parties acknowledge that by reason of their relationship to
each other they will have access to certain information and materials concerning
the other's business, plans, customers, technology, and/or products that is
confidential and of substantial value to that party, which value would be
impaired if such information were disclosed to third parties. Each party agrees
that it will not use in any way for its own account or the account of any third
party, nor disclose to any third party, any such confidential information
revealed to it by either party, and will take every reasonable precaution to
protect the confidentiality of such information. Upon request by either party,
the other party will advise whether or not it considers any particular
information or materials to be confidential. In the event of termination of this
Agreement, there will be no use or disclosure by either party of any
confidential information. Neither party will at any time manufacture or have
manufactured any devices, components or assemblies or any other items tangible
or intangible, utilizing any of the other party's confidential information. The
parties shall be relieved of their obligation of confidentiality to the extent
that:
a) such information was in the public domain at the time it was disclosed or
has become in the public domain through no fault of the receiving party;
b) such information is already in the possession of the receiving party
without obligation of confidentiality prior to the receipt from the
disclosing party;
c) such information is independently developed by the receiving party without
any breach of confidentiality;
d) such information is rightfully received by the receiving party;
e) such information is released for disclosure by one party with the other
party's written consent; or
f) is disclosed pursuant to the order or requirement of a court,
administrative agency, or other governmental body, provided however, that
the receiver shall provide prompt notice thereof to the discloser to enable
the discloser to seek a protective order or otherwise prevent or restrict
such disclosure.
5.2 Notification. Each party agrees to notify the other promptly in the
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event of any breach of its security under conditions in which it would appear
that the Source Code, Software Tools and ODE, the Derivative Products or the
confidential information were prejudiced or exposed to loss. Each party shall,
upon request of the other, take all other reasonable steps necessary to recover
any compromised Source Code, Software Tools and ODE, Derivative Products or
confidential information disclosed to or placed in the possession of the other
party by virtue of this Agreement. The cost of taking such steps shall be borne
solely by party responsible for the breach.
5.3 Remedies. Licensee acknowledges that any breach of any of its
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obligations to protect the Source Code as
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described under this Section 5, may cause or threaten irreparable harm to Lynx,
and accordingly, Licensee agrees that in such event, Lynx shall be entitled to
seek equitable relief to protect its interest therein, including but not limited
to preliminary and permanent injunctive relief, as well as money damages.
6. WARRANTY & DISCLAIMER
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6.1 LYNX REPRESENTS AND WARRANTS THAT LYNX OWNS ALL RIGHTS AND TITLE TO
THE SOURCE CODE, SOFTWARE TOOLS AND ODE OR OTHERWISE HAS SUFFICIENT RIGHTS TO
GRANT LICENSEE THE LICENSES GRANTED HEREIN. LYNX FURTHER WARRANTS THAT, FOR A
PERIOD OF NINETY (90) DAYS FROM THE EFFECTIVE DATE, THE MEDIA ON WHICH THE
SOURCE CODE, SOFTWARE TOOLS AND ODE IS FURNISHED UNDER NORMAL USE WILL BE FREE
FROM DEFECTS IN MATERIALS AND WORKMANSHIP. LYNX'S ENTIRE LIABILITY, AND
LICENSEE'S EXCLUSIVE REMEDY, UNDER THIS WARRANTY WILL BE, AT LYNX'S OPTION, TO
REPLACE THE MEDIA.
6.2 LYNX WARRANTS THAT, AS OF THE EFFECTIVE DATE, ALL THE SOURCE CODE,
SOFTWARE TOOLS AND ODE WILL WORK WITH EACH OTHER AS DESCRIBED IN THE
DOCUMENTATION PROVIDED WITH THE SOURCE CODE, SOFTWARE TOOLS AND ODE, AND AS
STATED IN THE FOLLOWING:
LYNX REPRESENTS AND WARRANTS THAT THE ODE WILL WORK WITH EACH INDIVIDUAL
SOFTWARE TOOL (TOTAL VIEW, TIME SCAN AND INSURE ++). LYNX DOES NOT INTEND FOR
THE SOFTWARE TOOLS TO WORK TOGETHER AND LYNX, THEREFORE, DOES NOT WARRANT THAT
THEY WILL. EXCEPT FOR THE EXPRESS, LIMITED WARRANTIES SET FORTH IN THIS
AGREEMENT, THE SOURCE CODE, SOFTWARE TOOLS AND ODE ARE PROVIDED WITHOUT WARRANTY
OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND LYNX HEREBY
DISCLAIMS ALL WARRANTIES OTHER THAN THOSE EXPRESS, LIMITED WARRANTIES SET FORTH
IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LYNX DOES NOT WARRANT THAT
USE OF THE SOURCE CODE, SOFTWARE TOOLS AND ODE WILL BE UNINTERRUPTED OR ERROR
FREE, WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THEY WILL OPERATE WITH THE
COMBINATION OF HARDWARE AND SOFTWARE SELECTED BY LICENSEE, EXCEPT AS DESCRIBED
ABOVE.
6.3 LYNX warrants that the Software Tools and ODE, when used in accordance
with all Lynx supplied documentation are designed to accurately process
date/time calculations (including, but not limited to, calculating, comparing
and sequencing) from, into and between the twentieth and twenty-first centuries,
between the years 1999 and 2000 and during a leap year and that the products and
services provided by Lynx will operate during each such time period without
error or detraction of functionality or performance relating to date data.
In the event that the Software Tools or ODE is not Year 2000 Ready, Lynx will
provide to Licensee an appropriate enhancement (at no extra cost) for the
affected Lynx product as described in the Priority Software Support Agreement
effective June 8, 1999 by and between the parties. Lynx's subsequent releases of
the affected Lynx product will also include the enhancement.
Lynx further represents and warrants that, if applicable:
a) that the Software Tools and ODE will not abnormally end or provide invalid
or incorrect results as a result of date data, specifically including date
data, which represents or references different centuries or more than one
century;
b) that the Software Tools and ODE have been designed to ensure Year 2000
compatibility, including, but not limited, to date data century
recognition, calculations, which accommodate same century and multi-century
formulas an date values, and date data interface values that reflect the
century.
c) that the Software Tools and ODE will manage and manipulate data involving
dates, including single century
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formulas, multi-century formulas and leap year, and will not cause an
abnormally ending scenario within the application or generate incorrect
values or invalid results involving such dates.
d) that the Software Tools and ODE provide all date-related interface
functionalities and data fields including the century indication.
7. TERM AND TERMINATION
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7.1 Term. This Agreement shall become effective upon the Effective Date
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and shall remain in effect for a term of [*] ([*]) years, whereupon this
Agreement shall terminate without notice unless the parties agree in writing to
extend the term of this Agreement prior to such expiration.
7.2 Termination. This Agreement may be terminated by either party upon
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written notice if the other party (i) Breaches any term or condition of this
Agreement and fails to remedy the breach within sixty (60) days (or within such
other time as the parties may agree) after being given notice thereof; (ii)
becomes the subject of any voluntary or involuntary proceeding under the U.S.
Bankruptcy Code or state insolvency proceeding and such proceeding is not
terminated within sixty (60) days of its commencement, (iii) ceases to be
actively engaged in business. Additionally, Licensee shall have the right to
terminate this Agreement upon ninety (90) days written notice to Lynx.
7.3 Effect of Termination. Should this Agreement expire or be terminated
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for any reason,
(a) the licenses granted to Licensee hereunder shall terminate
provided that Licensee may continue to distribute Binary Distributables as part
of those Derivative Products in production upon the expiration of this Agreement
(but not including new models, upgrades, line extensions, updates or any new
products of any kind) for so long as such Derivative Products are supported by
Licensee. Such right shall terminate with respect to each Derivative Product
upon Licensee's discontinuation or replacement of each such Derivative Product
in distribution upon expiration of this Agreement;
(b) end users sublicensed hereunder shall be permitted continued use
of the Derivative Product according to the terms of their sublicense agreements;
(c) all distribution agreements with Sub distributors shall terminate
concurrent with termination of this Agreement; and
(d) Licensee shall promptly return or destroy all copies of the
Source Code, Software Tools and ODE, including those in the possession of
Licensee's Sub distributors, provided that Licensee may retain a reasonable
number of copies of Source Code, Software Tools and ODE for use in supporting
Derivative Products pursuant to (a) above.
7.4 Survival of Certain Terms. The provisions of Sections 3, 4, 5, 6, 7,
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9, 10, 11, and 12 will survive the termination of this Agreement for any reason.
In addition, termination of this Agreement shall not release Licensee from its
liability to pay to Lynx any royalties which shall have accrued to Lynx at the
time such termination becomes effective, or which accrue to Lynx after the
notice of termination is given. All other rights and obligations of the parties
will cease upon termination of this Agreement.
8. TRADEMARK LICENSE
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8.1 Use. During the term of this Agreement, Licensee shall have the right
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to indicate to the public that it utilizes the Binary Distributables in its
computer hardware, and to advertise such utilization under the trademarks,
marks, and trade names that Lynx may adopt from time to time ("Lynx's
Trademarks"). Licensee shall reproduce any of Lynx's Trademarks marked in or on
the Binary Distributables on each copy made by Licensee. Nothing herein shall
grant to Licensee any right, title or interest in Lynx's Trademarks, and
Licensee shall have no right to sublicense the rights to use Lynx's trademarks
to Sub distributors or another third party. At no time during or after the term
of this Agreement shall Licensee challenge or assist others to challenge Lynx's
Trademarks existing as of the Effective Date.
8.2 Approval of Representations. All representations of Lynx's Trademarks
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that Licensee intends to use shall first be submitted to
[*] = 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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Lynx for approval (which shall not be unreasonably withheld) of design, color,
and other details or shall be exact copies of those used by Lynx. Lynx agrees to
approve or disapprove of any representation of Lynx's Trademarks within fifteen
(15) business days of receipt of samples of such representation, provided
failure of Lynx to respond within such fifteen (15) business day period shall be
determined an approval. Licensee may not use any representation of Lynx's
Trademarks unless they have been so approved by Lynx and only as approved by
Lynx. If any of Lynx's Trademarks are to be used in conjunction with another
trademark on or in relation to the Licensee Products, then Lynx's mark shall be
presented equally legibly and equally prominently, but nevertheless separated
from the other so that each appears to be a mark in its own right, distinct from
the other mark.
9. INDEMNIFICATION
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Lynx hereby agrees to indemnify and hold harmless Licensee, its affiliates and
their respective successors and assigns, and its and their respective directors,
officers, agents and employees, from and against any and all direct damages and
reasonable attorneys' fees and costs and expenses incident thereto to the extent
such direct damages arise from (a) any defect in the design, workmanship or
material of any Source Code, Software Tools and ODE delivered by Lynx to
Licensee hereunder that was not caused by Licensee's modifications to the Source
Code, Software Tools and ODE, and/or (b) any negligence (whether active or
passive) or willful misconduct of Lynx, its contractors of any tier or its or
their directors, officers, agents, or employees up to $1 Million maximum, of
direct damages. In addition, Lynx shall indemnify and hold harmless Licensee,
its affiliates and their respective successors and assigns, and its and their
respective directors, officers, agents and employees, except for sole negligence
of Licensee, its directors, officers, agents and employees, from and against any
and all indirect, consequential, special and other damages (other than direct
damages), claims, liabilities, losses, causes of action and judgments brought by
any person, corporation, governmental entity or other entity not a party to this
Agreement, whether arising from injury or death to persons or loss or damage to
property or otherwise, up to the maximum value of all payments made under this
Agreement. This indemnity shall survive the termination or expiration of this
Agreement for a period of five (5) years.
10. MAINTENANCE
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Any obligation Lynx may have to provide support, updates or maintenance to
the Licensee shall be pursuant to a separate Support Agreement between the
parties. Licensee shall have the sole obligation to support all Derivative
Product(s) distributed by Licensee.
11. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY
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11.1 Indemnity. Lynx hereby indemnifies Licensee, its successors, assigns,
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agents, customers, and users of the articles against all loss, damage, or
liability, including costs and expenses, including attorneys' fees, which may be
incurred on account of any suit, claim, judgment, or demand involving
infringement or alleged infringement of any copyright, trademark, patent, trade
secret or any other intellectual property rights in the manufacture, use, or
disposition of any articles supplied hereunder in any form or media provided
that Licensee provides Lynx with (i) prompt written notice of such claim or
action, (ii) control and authority over the defense or settlement of such claim
or action, provided that Licensee may offer assistance in connection therewith
at Licensee's cost, and (iii) full information and reasonable assistance to
defend and/or settle any such claim or action. In addition to the remedies for
indemnification stated above, if a temporary or final injunction is entered, or
Lynx believes, in its sole discretion, is likely to be entered prohibiting
Licensee from exercising its right to use the Source Code, Software Tools and
ODE granted hereunder, Lynx, at its sole option and expense, may either (a)
procure for Licensee the right to use and distribute the Source Code, Software
Tools and ODE as provided herein, (b) replace the Source Code, Software Tools
and ODE with other non-infringing products; (c) suitably modify the Source Code,
Software Tools and ODE so that it is not infringing; or (d) accept return of the
Source Code, Software Tools and ODE and refund the amortized value of such
Source Code, Software Tools and ODE to Licensee. Lynx will use its commercially
reasonable efforts to resolve any such claims by executing subsections a, b and
c above and subsection d shall be the resolution of last resort. Notwithstanding
the foregoing, Lynx shall have no liability pursuant
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to this Section 11.1 for any cost or expense incurred by Licensee prior to
Lynx's assumption of control and authority of the investigation and defense of
such suit, claim or demand as set forth above.
11.2 Limitations. Notwithstanding the provisions of Section 11.1 above,
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Lynx assumes no liability for infringement claims arising from (i) combination
of the Source Code, Software Tools or ODE with other products not provided by
Lynx, or (ii) the modification of the Source Code, Software Tools or ODE unless
such modification was made by Lynx.
11.3 Disclaimer. THE FOREGOING PROVISIONS OF THIS SECTION 11 STATES THE
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ENTIRE LIABILITY AND OBLIGATIONS OF LYNX AND THE EXCLUSIVE REMEDY OF LICENSEE,
WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT BY THE SOURCE CODE, SOFTWARE
TOOL OR ODE OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER
INTELLECTUAL PROPERTY RIGHT.
12. GENERAL PROVISIONS
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12.1 Independent Contractors. The relationship of Lynx and Licensee
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established by this Agreement is that of independent contractors, and nothing
contained in this Agreement shall be construed to constitute the parties as
partners, joint venturers, co-owners or otherwise as participants in a joint or
common undertaking. All financial obligations associated with each party's
business are the sole responsibility of that party. All sales and other
agreements between Licensee and its customers are Licensee's exclusive
responsibility and shall not affect Lynx's obligations under this Agreement.
Each party, pursuant to this subsection shall be solely responsible for, and
shall indemnify, defend, and hold the other harmless of any costs, liabilities
and expenses against all claims, damages, and lawsuits arising from the acts and
omissions of the other, its employees, servants, agents or any of them.
12.2 Governing Law. This Agreement shall be interpreted and governed by
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the laws of the State of California, without reference to conflict of laws
principles, but including the provisions of the Uniform Commercial Code of
California. This Agreement specifically excludes the provisions of the 1980
United Nations Convention on Contracts for the International Sale of Goods and
the U. N. Convention on the Limitation Period in the International Sale of
Goods, as amended by Protocol.
12.3 Jurisdiction. For any disputes arising out of this Agreement the
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parties consent to the personal and exclusive jurisdiction of, and venue in, the
state or federal courts within Los Angeles County, California.
12.4 Modification. No modification to this Agreement, nor any waiver of
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any rights, shall be effective unless assented to in writing signed by the
parties.
12.5 Assignment. This Agreement and any rights and obligations provided
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hereunder are not assignable without the prior written consent of the other. Any
attempt at assignment without such consent shall be invalid and of no force and
effect. In the case of any permitted assignment or transfer of or under this
Agreement, this Agreement or the relevant provisions shall be binding upon, and
inure to the benefit of, the successors, executors, heirs, representatives,
administrators, and assigns of the parties hereto.
12.6 Governmental Consent. Licensee represents and warrants that no
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consent, approval or authorization of or designation, declaration or filing with
any governmental authority is required in connection with the valid execution of
this Agreement.
12.7 Compliance with U.S. Export and Re-export Controls. The parties and
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their agents and employees shall not disclose, transfer, export, or re-export,
directly or indirectly, item or information provided to it by the other party
(or direct products thereof) provided under this Agreement to any destination,
end user, or end use prohibited under the U.S. Export Administration Regulations
or any other applicable export control laws, without the prior written approval
of the U.S. Department of Commerce or other relevant agency. Lynx shall be
responsible for obtaining the required export licenses or other approvals from
the government of the country of the country of origin for items it is
responsible for delivering under this
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Agreement. This clause shall survive termination or lapse of the Agreement.
12.8 U.S. Government Restricted Rights. The Source Code, Software Tools
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and ODE are provided with RESTRICTED RIGHTS. Use, duplication or disclosure of
the Software and accompanying documentation by the Government is subject to
restrictions as set forth in subparagraph (c)(1)(ii) of the Rights clause in
Technical Data and Computer Software clause at DFARS 252.227-7013 or in
subparagraphs (c)(1) and (2) of the Commercial Computer Software -- Restricted
Rights at 48 CFR 52.227-19, as applicable. Contractor/ Manufacturer is Lynx
Real-Time Systems, Inc., 2239 Samaritan Drive, San Jose, California 95124.
12.9 Severability. If any provision of this Agreement is held to be
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invalid by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect. The parties agree to re-negotiate
in good faith any term held invalid and to be bound by the mutually agreed
substitute provision.
12.10 No Waiver. Any and all failures, delays, or forbearances of either
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party in insisting upon or enforcing at any time or times any of the provisions
of this Agreement, or to exercise any rights or remedies under this Agreement,
shall not be construed as a waiver or relinquishment of any such provisions,
rights or remedies in those or any other instances; rather, the same shall be
and remain in full force and effect. A waiver of a breach of any provision
hereof shall not constitute a waiver of any other breach.
12.11 Notices. Any notices required to be given under this Agreement
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shall be in writing and addressed to the respective party at the address shown
below or such other address as may be provided by each party from time-to-time.
Notices shall be effective when received and shall be sent by certified or
registered mail, return receipt requested, by electronic means when acknowledged
by the receiving party or by overnight courier.
Rockwell Collins, Inc.
400 Collins Road, NE,
Cedar Rapids, IA 52498
Attn: Subcontracts Manager
Lynx Real-Time Systems, Inc.
2239 Samaritan Drive
San Jose, CA 95124
Attn: Contract Administration Manager
12.12 Dispute Resolution The parties will attempt to settle any claim or
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controversy arising out of this Agreement through good faith negotiations and
mutual cooperation. If those attempts fail, then the dispute will be first
submitted to a mutually acceptable neutral advisor for mediation. Neither party
may unreasonably withhold acceptance of such an advisor, and selection of the
advisor shall be made within forty-five (45) days after written notice by one
party demanding such resolution. The cost of such mediation shall be shared
equally by both parties. Any dispute, which cannot be resolved between the
parties within one hundred eighty (180) days of the date of the initial demand
by either party for such mediation, shall be finally determined by the courts.
The use of such a procedure shall not be construed to affect adversely the
rights of either party under the doctrines of laches, waiver or estoppel.
Nothing in this paragraph shall prevent either party from resorting to judicial
proceedings if: (A) good faith efforts to resolve a dispute under these
procedures have been unsuccessful; or (B) interim resort to a court is necessary
to prevent serious and irreparable injury to a party or to others. This section
shall not apply to claims or disputes relating to intellectual property rights.
12.13 Rights and Remedies The rights and remedies provided both parties
-------------------
pursuant to this Agreement shall be cumulative and in addition to any other
rights and remedies provided by law or equity. A waiver of a breach of any
provision hereof shall not constitute a waiver of any other breach.
12.14 Compliance with Laws Both parties warrant that it will comply with
--------------------
all federal, state, and local laws, including, but not limited to, any statute,
rule, regulation, judgment, decree, order or permit applicable to their
performance under this Agreement
12.15 Release of News Information and Advertising Except as permitted
-------------------------------------------
under this Agreement, neither party shall, without the prior written consent of
the other party: (a) make any news release, public announcement, denial or
confirmation of all or any part of the subject matter of this Agreement, or (b)
in any manner
8
advertise or publish the fact that the parties have entered into this Agreement.
12.16 Gratuities Seller warrants that neither it nor any of its
----------
employees, agents or representatives has offered or given any gratuities to
Buyer's employees, agents or representatives with a view toward securing this
Agreement or securing favorable treatment with respect thereto.
12.17 Entire Agreement. This Agreement, constitutes the entire and
----------------
exclusive Agreement between the parties hereto with respect to the subject
matter hereof and supersedes and cancels all previous registrations, agreements,
commitments and writings in respect of the subject matter hereof.
LYNX REAL-TIME SYSTEMS, INC.
By: /s/ Bhupi Singh
---------------------------
Print Name: Bhupi Singh
-------------------
Title: V.P. Finance and CFO
------------------------
Date: 6/9/99
------------------------
ROCKWELL COLLINS, INC.
By: /s/ Cynthia A. Shaw
---------------------------
Print Name: Cynthia A. Shaw
-------------------
Title: Subcontract Specialist
------------------------
Date: June 8, 1999
------------------------
9
EXHIBIT A
SOURCE CODE SOFTWARE LICENSE & DERIVATIVE PRODUCT DISTRIBUTION
EXHIBIT
________________________________________________________________________________
This Exhibit A is attached to, made part of and governed by the SOFTWARE
LICENSING AGREEMENT SOURCE CODE LICENSE AND DERIVATIVE PRODUCT DISTRIBUTION
effective June 8, 1999 by and between Lynx Real-Time Systems, Inc., a California
corporation with principal offices at 2239 Samaritan Drive, San Jose, CA 95124
("Lynx"), and Rockwell Collins, Incorporated, a Delaware corporation, with
offices at 400 Collins Road, NE, Cedar Rapids, IA 52498 ("Licensee").
License. Subject to the terms and conditions of this Agreement, Lynx hereby
--------
grants to Licensee a nontransferable, world-wide and non-exclusive license to:
1) use the Source Code, Software Tools and ODE for internal development
purposes;
2) modify and prepare Derivative Products from the Binary Distributables;
3) produce copies of the Binary Distributables and to use and distribute
copies of the Binary Distributables in accordance with this Agreement. Licensee
may create a Derivative Product for resale, internal use and/or distribution,
subject to the payment of royalties and the other terms and conditions hereof.
Licensee may:
a. have up to the number of simultaneous users as the number of copies
licensed for each product: the Source Code, Software Tools and ODE;
b. make one (1) copy of the Software Tools and ODE in machine readable form
and one (1) copy of the Source Code for backup purposes, provided that
Licensee reproduces all proprietary notices on the copy; and
c. physically transfer the Source Code, Software Tools and ODE from one
computer to another, provided that the Source Code, Software Tools and ODE
are used, simultaneously, by no more than the number of users licensed for
each product and pursuant to the restrictions described in the Source Code
License Restrictions section of Exhibit B.
Any purchase order providing for the purchase of Source Code, Software Tools or
ODE shall reference this Software License and Derivative Product Distribution
Agreement on its face.
Licensee is authorized to grant sublicenses to end-users for the use of
Derivative Products, provided that each sub-licensee enters into a written
agreement ("Sublicense Agreement") which contains provisions no more broad than
those set forth in Exhibit C hereto.
Licensee may grant to a third party ("Distributor") a right to make and/or
sublicense copies of the Derivative Products provided that each Distributor
enters into a written agreement ("Distributor Agreement") which includes terms
and conditions no more broad than those set forth in Exhibit C hereto.
Licensee shall use its best efforts to enforce the agreements with Distributors
and customers specified in this Sub-licensing Agreement.
License Fee. Licensee agrees to pay the Source Code, Software Tools and ODE
-----------
license fees as defined in Exhibit B. There is no initial license fee for re-
distribution of Derivative Products.
Royalties. In consideration of the rights granted Licensee hereunder, for each
---------
copy of the Binary Distributables used, sold or distributed by Licensee or its
Distributors, Licensee shall pay Lynx a per copy royalty as set forth in Exhibit
B attached hereto. Royalties due on copies of a Derivative Product distributed
through Sub-distributors shall be due upon transfer of the Derivative Product by
Licensee to the Sub-distributor.
Third Party Contractors. Licensee may appoint a third party contractor
------------------------
("Contractor") to assist Licensee in Licensee's modification of the Source Code,
Software Tools or ODE as authorized hereunder; provided that any such
Contractor's access to and use of the Source Code, Software Tools and ODE shall
only be permitted pursuant to a signed written agreement between Licensee and
such Contractor granting such Contractor rights no broader than those granted
Licensee in this Agreement and
10
including provisions incorporating the additional requirements set forth below:
(a) Any claim, demand or right of action arising on behalf of a Contractor from
furnishing to it or use by it of Source Code, Software Tools and ODE shall be
solely against Licensee. This provision in no way restricts any rights Licensee
may have against Lynx pursuant to this Agreement, under law or in equity.
(b) Contractor may not retain any copy of the Source Code, Software Tools and
ODE or any modification or derivative work thereof and, upon completion of the
project for which Contractor was permitted access to the Source Code, Software
Tools and ODE or termination of this Agreement, then (i) all copies of Source
Code, Software Tools and ODE furnished to such Contractor or made by such
Contractor and (ii) all copies of any modifications or derivative works made by
such Contractor based on such Source Code, Software Tools and ODE shall be
returned to Licensee or destroyed including any copies stored in any computer
memory or storage medium. A written document executed by an authorized
representative of Licensee shall be provided to Lynx certifying that the
Contractor has returned or destroyed all copies of the Source Code, Software
Tools and ODE in its possession or control.
(c) Unless Contractor obtains a license for the Source Code, Software Tools and
ODE from Lynx, Contractor may not acquire any ownership interest in any
modification or derivative work prepared by such Contractor based upon or using
Source Code, Software Tools and ODE licensed to Licensee under this Agreement.
Modifications. Modifications made by Licensee shall be the property of
--------------
Licensee; subject in each case to Lynx's ownership of the Source Code, Software
Tools and ODE provided; however, that any portion of the Source Code, Software
Tools and ODE included in the Derivative Products remains subject to the
provisions of this Agreement, and shall bear the proprietary notice set forth in
Exhibit E.
Reservation. Lynx reserves all rights and licenses not expressly granted to
------------
Licensee.
ADDITIONAL OBLIGATIONS:
-----------------------
Delivery. Within fifteen (15) days after Lynx receives the purchase order for
---------
the Source Code, Software Tools and ODE specified in Exhibit B, Lynx will
furnish to Licensee one (1) copy of such Source Code, Software Tools and ODE in
the media identified in Exhibit B.
11
EXHIBIT B
PRODUCT LIST & PRICING SCHEDULE
-------------------------------
This Exhibit B is attached to, made part of and governed by the SOFTWARE
LICENSING AGREEMENT SOURCE CODE LICENSE AND DERIVATIVE PRODUCT DISTRIBUTION
effective June 8, 1999 by and between Lynx Real-Time Systems, Inc., a California
corporation with principal offices at 2239 Samaritan Drive, San Jose, CA 95124
("Lynx"), and Rockwell Collins, Incorporated, a Delaware corporation, with
offices at 400 Collins Road, NE, Cedar Rapids, IA 52498 ("Licensee").
Source Code Pricing
The source product includes only the source, documentation, source media,
and support material. Cygnus and other Free Software Foundation source code
can be provided at no charge in accordance with the GNU licensing
agreement. Cygnus and other Free Software Foundation source code is not
licensed to Licensee under this Agreement.
Software Licensing Agreement - Lynx Real-Time Systems Inc. and Rockwell Collins Inc.
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