{"id":42240,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/distribution-agreement-cybermedia-inc-and-phoenix-technologies.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"distribution-agreement-cybermedia-inc-and-phoenix-technologies","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/distribution-agreement-cybermedia-inc-and-phoenix-technologies.html","title":{"rendered":"Distribution Agreement &#8211; CyberMedia Inc. and Phoenix Technologies Inc."},"content":{"rendered":"<pre>\n                             DISTRIBUTION AGREEMENT\n\n\n        This Agreement is made as of this 8th day of September, 1996 by and\nbetween CyberMedia, Inc., a Delaware corporation with its principal offices at\n3000 Ocean Park Boulevard, Suite 2001, Santa Monica, California 90405\n(\"CyberMedia\"), and Phoenix Technologies Ltd., a Delaware corporation with its\nprincipal offices at 2770 De La Cruz Boulevard, Santa Clara, California 95050\n(\"Phoenix\"). CyberMedia and Phoenix may be referred to herein individually as a\n\"Party\" and collectively as the \"Parties.\"\n\n\n                                    RECITALS\n\n        A. CyberMedia designs, develops and markets a group of software products\nunder the primary trademarks \"First Aid\" and \"Oil Change\". Such software\nproducts are designed for the purpose of permitting the end user to correct\nproblems with the PC device without having to seek support from the manufacturer\nor others. CyberMedia markets its products primarily to end-users.\n\n        B. Phoenix designs, develops and markets standards-based system-level\nsoftware products, including basic input\/output system (BIOS) software. Phoenix\nmarkets its products primarily to manufacturers of personal computing devices,\nincluding PC desktop and server systems, laptop devices, special purpose\nPC-based systems or devices, motherboards and PC-related peripheral devices.\n\n        C. CyberMedia wants to expand the penetration of its products into the\nOEM market and believes Phoenix has the expertise to do so and Phoenix wants to\nutilize CyberMedia's expertise and the complementary nature of CyberMedia's\nsoftware products to be able to provide OEM customers with additional products.\n\n        D. CyberMedia and Phoenix desire to expand the capability and reach of\nCyberMedia's products by combining certain of Phoenix's current system-level\nsoftware and software to be developed with CyberMedia products. This product,\npreliminarily referred to as \"First Aid Plus Pack\" will be developed pursuant to\na development and license agreement to be negotiated and executed by the parties\nwithin 30 days after the Effective Date of this Agreement or as soon thereafter\nas possible.\n\n        NOW, THEREFORE, in consideration of the premises and the promises made\nherein, the parties hereto agree as follows:\n\n1.      DEFINITIONS\n\n        \"Coordinator\" means the CyberMedia employee or the Phoenix employee\nassigned from time to time by his or her respective employer, to coordinate\nmeetings, facilitate communication and serve as the focal point for the\nresolution of issues in connection with or which may arise under this Agreement.\n\n        \"Customization Tools\" means those software programs developed or\nlicensed by CyberMedia as of the Effective Date or during the Term for the\npurpose of customizing CyberMedia's Products which\n\n\n\nare licensed hereunder. The Customization Tools available as of the Effective\nDate are described in Exhibit A attached hereto.\n\n        \"CyberMedia Customer\" means any OEM which has signed an agreement with\nCyberMedia as of the Effective Date pursuant to which such entity is licensed to\ncopy, distribute or sublicense any of the CyberMedia Products. CyberMedia\nCustomers are named in Exhibit E attached hereto under the heading \"CyberMedia\nCustomers.\"\n\n        \"CyberMedia Products\" means the CyberMedia products presently marketed\nunder the primary Mark \"First Aid 95 Deluxe\" and the OEM Version of Oil Change\n(all as are described in Exhibit A attached hereto), together with all upgrades,\nupdates, enhancements, fixes, and future releases and versions thereof, and all\ncurrent and future documentation relating thereto commercially released by\nCyberMedia or otherwise delivered by CyberMedia to Phoenix during the Term.\n\n        \"Effective Date\" means the date on which this Agreement has been\nexecuted by both parties.\n\n        \"Intellectual Property Rights\" means patent rights, copyright rights\n(including, but not limited to, rights in audiovisual works and moral rights),\ntrade secret rights, and any other intellectual property rights recognized by\nthe law of any applicable jurisdiction.\n\n        \"Knowledge Base\" means a collection of product and vendor-specific\ntechnical support information, including without limitation detailed\nconfiguration information regarding specific hardware and software products and\nthe Windows operating system.\n\n        \"Marks\" means the trademarks, trade names, service marks, and\/or service\nnames of a party as specified from time to time.\n\n        \"Object Code\" means with respect to any particular product software in\nmachine-readable and executable form.\n\n        \"OEM\" means any entity, including its subsidiaries, parents, and\ndivisions, which manufactures a PC Computer.\n\n        \"OEM Version of Oil Change\" means those portions of the CyberMedia\nproducts presently marketed under the primary Mark \"Oil Change\" which contain\nthe technology or functionality designed primarily to fix a hardware or software\nproblem in a PC Computer as described under Oil Change OEM Version in Exhibit A.\n\n        \"Other Manufacturer\" means any entity, including its subsidiaries,\nparents and divisions, which manufactures a PC Peripheral.\n\n        \"PC Computer\" means any personal computing device capable of running\ngeneral purpose PC operating system software, including without limitation,\npersonal computers (PCs) (such as hand held, laptop or notebook computers,\ndesktop systems, and servers) and motherboards for PCs.\n\n\n                                       -2-\n\n        \"PC Peripheral\" means any PC-compatible hardware device which is not a\nPC Computer.\n\n        \"Phoenix Customer\" means any entity, including its subsidiaries,\nparents, and divisions, which has a license agreement with Phoenix in effect on\nthe Effective Date and under which such entity licenses Phoenix products for use\non products manufactured by such entity which are PC Computers or PC\nPeripherals.\n\n        \"Prospect\" means any OEM with whom CyberMedia has commenced negotiations\nfor agreements with CyberMedia pursuant to which such entity would be licensed\nto copy, distribute or sublicense any of the CyberMedia Products on a PC\nComputer to be sold to end users. Prospects are named in Exhibit E attached\nhereto under the heading \"Prospects.\"\n\n        \"Source Code\" means, with respect to any particular product, software in\nhuman readable form and related design documentation, including all comments and\nany procedural code.\n\n        \"Specifications\" means as to any particular product, the written\ndescription of the product, which description shall include the product's\nfunctionality and interfaces. The Specifications for the CyberMedia Products are\nattached hereto as Exhibit A.\n\n        \"Subdistributor\" means any person, other than an OEM or Other\nManufacturer, authorized by or through Phoenix to sublicense CyberMedia Products\nto OEMs or Other Manufacturers.\n\n        \"Term\" means the period from and including the Effective Date through\nthe date on which this Agreement is terminated in accordance with Section 13\nhereof.\n\n        \"Transition Period\" means the thirty day period commencing with the\nEffective Date.\n\n        \"Year\" means each calendar year during the term of this Agreement.\n\n2.      LICENSES\n\n        2.1    Grants by CyberMedia.\n\n               (a) Subject to the terms of this Agreement, CyberMedia grants\nPhoenix a non-transferable, worldwide, royalty-bearing license for the Term and\nany period after the Term during which Phoenix has rights to continue to\ndistribute CyberMedia Products (with right to sublicense as described below) to\nuse, perform and display the CyberMedia Products internally and externally, in\nObject Code only, for purposes of demonstration, marketing and customization for\ncustomers, and to copy such products and have the same copied as necessary for\nsuch use and for sublicensing as provided below, and to market, sublicense and\ndistribute such products solely through OEMs and Other Manufacturers as follows:\nPhoenix may grant sublicenses to such OEMs and Other Manufacturers to copy, have\ncopied and use the CyberMedia Products, in Object Code format only, for\ndemonstration and marketing purposes, to incorporate or bundle such products\nwith PC Computers or PC Peripherals, and to distribute and sublicense such\nincorporated or bundled products to end users and to other OEMs. Phoenix may\n\n\n                                       -3-\n\nexercise its distribution rights through the use of Subdistributors, provided\nthat such Subdistributors distribute CyberMedia Products only to OEMs and Other\nManufacturers in the manner required of Phoenix hereunder, and agree in writing\nwith Phoenix to be bound by licensing and confidentiality conditions at least as\nrestrictive as those in this Agreement that are applicable to Phoenix hereunder.\nThe licenses granted Phoenix and its Subdistributors hereunder expressly exclude\nany right to distribute the CyberMedia Products on a standalone basis to any end\nuser. Any sublicense rights granted by Phoenix to an OEM or Other Manufacturer\nwill not restrict the OEM's or Other Manufacturer's ability to sublicense the\nCyberMedia Products in the manner described above to its end users or OEM\ncustomers anywhere in the world, except as required by law.\n\n               (b) Subject the terns of this Agreement, CyberMedia grants\nPhoenix a non-transferable, worldwide, royalty-bearing license for the Term and\nany period after the Term during which Phoenix has rights to continue to\ndistribute CyberMedia Products (with right to sublicense as described below) to\nuse, perform and display the Customization Tools, in Object Code only, for\ninternal business purposes only, to customize the CyberMedia Products for an OEM\nor manufacturer of PC-based devices other than PC Computers. Phoenix may\nsublicense such rights to an OEM or any such manufacturer pursuant to a written\nagreement with such third party that it will be bound by licensing and\nconfidentiality conditions at least as restrictive as those in this Agreement\nthat are applicable to Phoenix hereunder. Phoenix and such third party\nsublicensees may make a reasonable number of copies of such software as is\nrequired for back-up purposes and to carry out the customization work permitted\nhereunder. Phoenix may distribute such Customization Tools only to such third\nparty licensees, and such licensees may not further distribute the Customization\nTools. The Customization Tools are licensed to Phoenix pursuant to CyberMedia's\nstandard limited warranty in effect for such tools from time to time, a copy of\nwhich may be obtained from CyberMedia upon request.\n\n               (c) The above license rights shall be non-exclusive, except that\nPhoenix shall have the exclusive right to distribute through, and to sublicense\nto, OEMs the CyberMedia Products so long as the number of copies of CyberMedia\nProducts reported as shipped in royalty reports issued by Phoenix pursuant to\nSection 4.1 is equal to or greater than the minimum number of copies for the\napplicable Year stated in Section 2.3(a) below. If such number falls below such\nminimum, then CyberMedia may elect to convert the exclusive rights described in\nthis paragraph into non-exclusive rights, on the terms and conditions stated in\nSection 2.3(a), and if converted, such rights shall continue as non-exclusive so\nlong as this Agreement is in effect and as to any distribution permitted\nthereafter pursuant to Section 13.\n\n               (d) So long as the right to distribute CyberMedia Products to or\nthrough OEMs granted Phoenix pursuant to Section 2.1(c) above remains exclusive\nand for the Year during the Term in which CyberMedia properly elects to make\nsuch right nonexclusive (the \"Election Year\"): (i) CyberMedia agrees that it\nwill not grant to any entity which develops or supplies BIOS software products\non a commercial basis to OEMs, which entities presently are comprised of Award\nSoftware, American Megatrends Inc., SystemSoft Corporation, the SurePath BIOS\ngroup of IBM Corporation, and Microid Research, any license to distribute any\nCyberMedia Products; and (ii) Phoenix agrees that it will not develop or market\n(including any distribution) any product which directly competes with CyberMedia\nProducts; provided, however, that during the Election Year, Phoenix shall not be\nprohibited from developing any product which may directly compete with any\nCyberMedia Product. If a prospective\n\n\n                                       -4-\n\nOEM for CyberMedia Products has stated to Phoenix and CyberMedia that it will\nnot sublicense CyberMedia Products from Phoenix, the Parties will promptly meet\nto discuss how to resolve the matter. If Phoenix agrees with an OEM that Phoenix\nwill not grant any other named OEM with a sublicense for CyberMedia Products,\nthen CyberMedia may enter into negotiations with such other named OEM for a\nlicense of the CyberMedia Products.\n\n               (e) Commencing with the Effective Date, Phoenix will use all\ncommercially reasonable efforts to promote CyberMedia Products and the Parties\nwill use all commercially reasonable efforts to promote the relationship\nestablished between the Parties hereunder, including the fact that Phoenix is\nthe exclusive distributor of CyberMedia Products to OEMs. For CyberMedia, such\nefforts will include, without limitation, making joint sales calls with Phoenix\nat Phoenix's request and advising Prospects regularly that it has appointed\nPhoenix as its authorized exclusive distributor of CyberMedia Products to OEMs.\nCyberMedia will use commercially reasonable efforts to convince Prospects to\nsign license agreements for CyberMedia Products directly with Phoenix and to\nconvince each CyberMedia Customer either (i) to cancel its existing license\nagreement for CyberMedia Products and to enter into a new agreement whereby the\nCyberMedia Customer becomes an sublicensee of Phoenix for the CyberMedia\nProducts or (ii) if acceptable to Phoenix, to consent to the assignment of such\nexisting license agreement from CyberMedia to Phoenix. If during the Transition\nPeriod and after the expenditure of all such efforts, a Prospect has stated that\nit is unwilling to enter into an agreement with Phoenix for the CyberMedia\nProducts, but is willing to enter into an agreement with CyberMedia, CyberMedia\nmay do so provided such contract is signed by both parties on or before the end\nof the Transition Period. After the end of Transition Period and so long as the\nrights granted Phoenix remain exclusive in accordance with Section 2.1(c),\nCyberMedia will have no right to sign any license agreement with OEMs for\nCyberMedia Products, whether or not they were Prospects, except, if after the\nTransition Period and after the expenditure of all such efforts, an OEM has\nstated in writing to Phoenix or CyberMedia that it is unwilling to enter into an\nagreement with Phoenix for the CyberMedia Products, but is willing to enter into\nan agreement with CyberMedia, the Parties agree to discuss strategies for\nresolving the situation.\n\n               (f) Any end user sublicense to use the CyberMedia Products and\nthe Customization Tools will be pursuant to a license agreement (including a\nshrink wrap license agreement) containing terms no less restrictive than the\nMinimum License Terms set forth in Exhibit B.\n\n               (g) CyberMedia does not grant to Phoenix any rights with respect\nto the Source Code to the CyberMedia Products or the Customization Tools\nhereunder and Phoenix agrees not to reverse engineer, decompile or disassemble\nthe Object Code to any of the CyberMedia Products or the Customization Tools.\n\n               (h) CyberMedia may place legitimate copyright notices in and on\nthe CyberMedia Products and the Customization Tools and on any documentation (or\nsuch other place as CyberMedia and Phoenix may agree in writing) delivered to\nPhoenix hereunder. Phoenix agrees that it will not remove any such copyright\nnotice from within the Object Code of any CyberMedia Product and the\nCustomization Tools.\n\n\n                                       -5-\n\n               (i) As between CyberMedia and Phoenix, CyberMedia will own the\nCyberMedia Products, the Customization Tools, any other software CyberMedia\nprovides Phoenix hereunder and the customized versions of CyberMedia Products\ncreated by Phoenix with the Customization Tools. CyberMedia may sell, license or\notherwise distribute any customized version of CyberMedia Products unless\nexplicitly prohibited by the OEM for whom the customized version was created.\nCyberMedia may not sell, license or otherwise distribute any translations\ncreated by Phoenix except as provided herein.\n\n        2.2 Delivery of CyberMedia Products and Customization Tools. CyberMedia\nwill deliver to Phoenix one copy of the Object Code for the CyberMedia Products\nand of upgrades, updates, enhancements, fixes and future releases and versions\nas quickly as possible but within ten (10) working days (a) when shipped as a\nproduction release to a customer and (b) when released internally for pre-\nrelease use in beta release form. All such items will be delivered in electronic\nform and, if requested by the receiving party, in hard copy form. CyberMedia\nwill deliver to Phoenix one copy of the Object Code for the Customization Tools\npromptly after they are first available to CyberMedia engineers.\n\n        2.3 Obligations to Retain Exclusivity. In order to retain the exclusive\nrights granted it pursuant to Section 2.1(a) above:\n\n               (a) Phoenix must have reported shipments by Phoenix or\nSubdistributors to OEMs or by OEMs of a minimum number of copies of CyberMedia\nProducts each Year. For purposes of the foregoing, a copy of a CyberMedia\nProduct may be counted as shipped only once. The minimum number of copies will\nbe six million for the period commencing with the Effective Date and ending\nDecember 31, 1997, it being understood that Phoenix's ability to reach such\nnumber may be adversely affected if CyberMedia enters into license agreements\nwith Prospects during the Transition Period which are not subsequently and\nquickly assigned to Phoenix. The Parties will negotiate in good faith the\nminimum number of copies for each Year after 1997 no later than September 30\nimmediately preceding such Year. The determination of whether or not such\nminimum number of copies has been achieved will be based on the shipments\nreported in the royalty reports issued by Phoenix to CyberMedia pursuant to\nArticle 4 hereof. CyberMedia acknowledges that the relevant royalty reports\nshall be those which are required to be made in the second, third and fourth\nquarters of the Year being measured and in the first quarter of the following\nYear. Such reports are subject to verification by CyberMedia pursuant to the\nexercise of its audit rights granted in Article 5 hereof\n\n        If such minimum copies have not been shipped during the Year being\nreviewed (or, with respect to the Year 1997, if Phoenix has failed to make\npayment of all of the amounts set forth in Section 2.3(b) below), then\nCyberMedia may elect to convert the exclusive rights granted Phoenix under\nSection 2.1(a) hereof into non-exclusive rights. Such election must be made in\nwriting delivered to Phoenix within 30 days after Phoenix gives the final\nroyalty report for the Year being measured.\n\n               (b) In addition, Phoenix will have paid CyberMedia the following\namounts on or before the dates indicated:\n\n\n                                       -6-\n\n\n\nPAYMENT DUE DATE                    AMOUNT DUE\n- ----------------                    ----------\n                                 \nEffective Date                       \nJanuary 15, 1997                     \nApril 15, 1997                        [ * ]\nJuly 15, 1997                        \nOctober 15, 1997                     \n\n\n\nPayments of these amounts are not refundable. Phoenix may not credit the\n[ * ] payment due on the Effective Date against any payment obligation it may\nhave to CyberMedia under Section 4.1 hereof. Phoenix may credit all other\namounts set forth in this Section 2.3(b) against any payment obligation it may\nhave to CyberMedia under Section 4.1 hereof.\n\n               (c) The failure of Phoenix to meet the applicable minimum\nshipments shall not be deemed a breach by Phoenix of any material obligation\nhereunder and shall not give CyberMedia the right to terminate this Agreement or\nany other right of Phoenix, except as otherwise set forth herein.\n\n3.      DISTRIBUTION OBLIGATIONS OF PHOENIX\n\n        3.1 Phoenix will use all reasonable diligent, good faith commercial\nefforts to market and sublicense, directly or through Subdistributors, the\nCyberMedia Products to OEMs.\n\n        3.2 (a) Phoenix will have the right to determine in its sole discretion,\nthe pricing it offers Subdistributors, OEMs and Other Manufacturers for\nCyberMedia Products; provided, however, that from the Effective Date through\nDecember 31, 1997, the minimum license fee Phoenix will pay CyberMedia for each\ncopy of a CyberMedia Product shipped by the OEMs, Other Manufacturers or\nSubdistributors will be [ * ], unless otherwise agreed by the parties; and\nprovided, further, that Phoenix and CyberMedia will negotiate in good faith any\nsuggested change to such minimum price with respect to any subsequent Year\nduring the same period during which they are negotiating the minimum shipment\ntargets pursuant to Section 2.3(a) above.\n\n            (b) Phoenix may from time to time wish to bundle CyberMedia Products\nwith other Phoenix products in order to effect a sublicense of CyberMedia\nProducts to an OEM or Other Manufacturer. Phoenix will propose to CyberMedia an\nallocation of the sublicense fees among the components of the bundled product\n(including the rationale therefor) and CyberMedia will advise Phoenix as\npromptly as practicable (but in no event in more than three working days) as to\nwhether or not it agrees with such allocation, which agreement will not be\nunreasonably withheld. If CyberMedia doesn't agree with the allocation, the\nparties will meet within one day thereafter to negotiate in good faith a\nmutually acceptable allocation.\n\n            (c) Unless otherwise agreed, Phoenix will not significantly increase\nthe pricing of Phoenix products over that previously offered by it to an OEM or\nOther Manufacturer while at or about\n\n- --------\n*Certain information on this page has been omitted and filed\n separately with the Commission. Confidential treatment has\n been requested with respect to the omitted portions.\n\n\n                                       -7-\n\nthe same time offering the CyberMedia Products at a significant discount nor\nwill it maintain the pricing of such Phoenix products while significantly\ndecreasing the pricing of CyberMedia Products. Unless otherwise agreed, Phoenix\nwill not offer to license CyberMedia Products to a prospective customer at a\ndiscount rate greater than that which is applicable to the Phoenix products\nbeing concurrently offered to the prospective customer.\n\n        3.3 Phoenix and CyberMedia will jointly complete a market rollout\ncampaign to coordinate announcement and marketing of CyberMedia Products to both\nthe retail and OEM channels.\n\n        3.4 Phoenix will establish a direct technical support service with\nrespect to CyberMedia Products to Phoenix's sublicensees of CyberMedia Products\n(i.e., its OEMs, Other Manufacturers and Subdistributors), which support will be\ncomparable to that provided by Phoenix for Phoenix software products.\n\n        3.5 Phoenix will attend such of CyberMedia' s technical training courses\nas it determines and will send technically qualified personnel to such courses.\nPhoenix will use all diligent commercial efforts to ensure that it has at least\ntwo technical employees who have received technical training from CyberMedia\nwith respect to the CyberMedia Products.\n\n        3.6 Phoenix agrees (and agrees to include in its agreements with\nSubdistributors the obligation of a Subdistributor): (a) to conduct its efforts\nhereunder in a manner that reflects favorably on the CyberMedia Products and the\ngood name, goodwill and reputation of CyberMedia; (b) to avoid deceptive or\nunethical practices, including but not limited to disparagement of the\nCyberMedia Products; (c) to make no representations, warranties or guarantees to\nOEMs or Subdistributors with respect to the specifications, features or\ncapabilities of the CyberMedia Products that are inconsistent with the\nliterature and other documentation provided by CyberMedia, or developed jointly\nby the Parties, including all warranties and disclaimers.\n\n        3.7 The Parties acknowledge that they have a goal of achieving a public\nimage of joint cooperation and support of CyberMedia Products that will\nconsistently position the Parties' respective roles and contributions under this\nAgreement. Toward that end, the parties will develop joint marketing and\npromotional programs hereunder, which would include joint customer presentations\nwhere appropriate, joint attendance at appropriate industry events, the\npreparation of consistent marketing collateral and the issuance of appropriate\njoint press releases. With respect to press releases, the Parties agree that\neach will include a mutually agreeable reference to the other in press releases\nand promotions relating to CyberMedia Products and, to the extent any such press\nrelease relates to or involves a third party CyberMedia and Phoenix will use all\nreasonable efforts to obtain such third party's consent to the issuance of such\npress release. The parties will mutually agree on all sales and marketing\nmaterials, press releases and other promotional materials relating to CyberMedia\nProducts.\n\n        3.8 Phoenix will use commercially diligent efforts to require its OEM\nand Other Manufacturer sublicensees of CyberMedia Products to provide their\nKnowledge Base, customizations and relevant end user information to Phoenix and\nto CyberMedia. Phoenix will provide CyberMedia with copies of any such\ninformation which the OEM agrees may be provided to CyberMedia.\n\n\n                                       -8-\n\n4.      PAYMENTS.\n\n        4.1 Phoenix will pay CyberMedia the following percentages of the license\nfees, net of any amounts Phoenix is required to pay others as defined in this\nAgreement, actually received by Phoenix from OEMs, Other Manufacturers and\nSubdistributors for Object Code licenses of any CyberMedia Product: with respect\nto the first [ * ] of such license fees, the percentage will be [ * ] [ * ] and\nwith respect to license fees after the first $ 1,000,000, the percentage will be\n[ * ]. Payment shall be made within 30 days after the end of the quarter in\nwhich such license fees were received and will be accompanied by a report\nshowing the number of units shipped for which payment was received.\n\n        4.2 If CyberMedia enters into a license agreement with a Prospect during\nthe Transition Period as contemplated by Section 2.1(e), CyberMedia will pay\nPhoenix [ * ] of any license fees, net of any amounts CyberMedia is required to\npay others as defined in this Agreement, actually received by CyberMedia from\nsuch Prospect; provided such Prospect is a Phoenix Customer as of the Effective\nDate and provided that CyberMedia is the primary source of support to the\nProspect. CyberMedia will not owe Phoenix any portion of any license fees\nCyberMedia collects from Prospects with whom it enters into a license agreement\nfor CyberMedia Products during the Transition Period if the Prospect is not a\nPhoenix Customer as of the Effective Date. CyberMedia will pay Phoenix [ * ] of\nlicense fees, net of any amounts it is required to pay others as defined in this\nAgreement actually received by CyberMedia from any such Prospect if the Parties\nagree, following good faith negotiations, that Phoenix is required to provide\nsignificant support to such Prospect with respect to CyberMedia Products.\n\n        4.3 A Party will be entitled to deduct from license fees received by it\nany sales, use, value-added, withholding or other tax or duty levied with\nrespect to such license fee, except and to the extent such tax is imposed by a\nforeign entity and the Party is able to credit such tax in full against its U.S.\nfederal income taxes or commissions it may be required to pay to a third party\nsales agent.\n\n        4.4 As a condition to entering into a sublicense agreement with Phoenix\nfor CyberMedia Products, an OEM or Other Manufacturer may request a program\nwhereby CyberMedia passes through to the OEM or Other Manufacturer and to\nPhoenix a portion of license fees paid by an end user for upgrading a CyberMedia\nProduct. Provided the purchase of such upgrade will occur as a direct result of\nactions taken by the OEM or Other Manufacturer, CyberMedia agrees to consider in\ngood faith any request from Phoenix for such a pass through but may withhold its\nconsent to such pass through in CyberMedia's sole discretion. The Parties will\nuse all commercial, efforts to develop a reasonable mechanism to determine\nwhether or not the purchase of the upgrade is the direct result of actions taken\nby the OEM or Other Manufacturer. Payment of any fees which may be due under\nthis Section 4.4 from CyberMedia shall be made within 30 days after the end of\nthe quarter in which such license fees were received.\n\n        4.5 CyberMedia will invoice Phoenix, and Phoenix will pay net 30, any\ninvoice issued by CyberMedia for integration or customization services with\nrespect to CM Products performed by CyberMedia pursuant to Section 11.2(d)\nbelow.\n\n\n- --------\n*Certain information on this page has been omitted and filed\n separately with the Commission. Confidential treatment has\n been requested with respect to the omitted portions.\n\n\n                                       -9-\n\n        4.6 CyberMedia may choose to add third party software to CyberMedia\nProducts after the Effective Date for the purpose of adding features or\nfunctionality and will keep Phoenix informed of any plans to so add third party\nsoftware. If the third party requires CyberMedia to pay a royalty with respect\nto each copy of the software shipped (the \"Third Party Royalty\"), CyberMedia\nwill inform Phoenix as soon as practicable of the amount of such royalty and\nPhoenix will have the following options:\n\n               (a) Phoenix will pay CyberMedia the Third Party Royalty with\nrespect to shipments of CyberMedia Products containing such third party software\nfor which an OEM, Subdistributor, or Other Manufacturer pays Phoenix license\nfees. For purposes of Section 4.1, the Third Party Royalty will be subtracted\nfrom the actual receipts before the percentage is applied;\n\n               (b) Phoenix may enter into an agreement directly with the third\nparty with respect to the payment of the Third Party Royalty, in which event,\nfor purposes of Section 4.1, the Third Party Royalty will be subtracted from the\nactual receipts before the applicable percentage is applied; or\n\n               (c) Phoenix may elect to take the CyberMedia Products without\nsuch third party software and will have no liability to CyberMedia for any Third\nParty Royalty relating to such software.\n\nFor purposes of Section 4.2, if CyberMedia receives license fees from any\nProspect referred to in Section 4.2 for CyberMedia Products which include third\nparty software for which CyberMedia owes a Third Party Royalty, such Third Party\nRoyalty will be deducted from such fees before the percentage is applied.\n\n5.      REPORTS AND AUDITS\n\n        5.1 For at least two (2) years following payment of any amount owed the\nother party hereunder, each party will maintain any records it may have with\nrespect to such payment, which shall include, without limitation, records\nshowing the number of units of CyberMedia Products to which such payment relates\nand records received from any OEM, Other Manufacturer or Subdistributor.\n\n        5.2 A party may, at its own expense and upon at least five (5) working\ndays' notice to the other party, cause an audit to be performed by an\nindependent auditor (acceptable to both parties) of the records of the other\nparty described in Section 6.1 above. The audit shall be for the purpose of\nconfirming the accuracy of the payment of fees and royalties or other charges in\naccordance with this Agreement. The auditor will report to the party requesting\nthe audit only such information obtained during the course of such audit as is\nnecessary to determine whether the payments made hereunder were correct. No\nparty may cause any audit to be conducted more frequently than once in any Year,\noutside normal business hours, or at a location other than where the audited\nparty's records being audited are maintained. If any such audit discloses an\nerror in payment by a party of amounts owed the other party in an amount greater\nthan five percent (5%) of the total amounts owed for the period audited, the\naudited party will also reimburse the auditing party for all expenses (including\nthe fees and expenses incurred by the independent auditor) reasonably incurred\nin connection with the audit.\n\n\n                                      -10-\n\n6.      WARRANTIES\n\n        6.1 Each party warrants and represents to the other that it has all\nauthority to enter into this Agreement and to perform its obligations hereunder.\n\n        6.2 CyberMedia warrants and represents that it has all right, title, and\ninterest and\/or license rights in the CyberMedia Products and the Customization\nTools necessary to grant the licenses set forth herein and that it has not taken\nany action or suffered any action to be taken with respect to the CyberMedia\nProducts or the Customization Tools which would restrict or affect the rights of\nPhoenix and its sublicensees hereunder. By way of example, and not by\nlimitation, CyberMedia has not heretofore granted any person any exclusive\ndistribution rights, whether geographically based or otherwise, which will limit\nthe license rights granted herein.\n\n        6.3 CyberMedia represents and warrants that, to the best of its\nknowledge, any software delivered by it to Phoenix hereunder will be free of any\nharmful code, defined for purposes of this Agreement as any computer code,\nprogramming instruction, or set of instructions which have been designed with\nthe ability to damage, interfere with, or otherwise adversely affect computer\nprograms, data files, or hardware, without the consent or intent of the end\nuser, including without limitation, self- replicating and self-propagating\nprogramming instructions commonly referred to as viruses and worms.\n\n        6.4 CyberMedia represents and warrants that each production release of\nthe CyberMedia Products will, for a period of twelve (12) months after the date\nsuch release is first shipped by CyberMedia to Phoenix, perform substantially in\naccordance with its respective Specifications. CyberMedia will, at its option\nand its own expense, either (a) correct or provide an acceptable workaround for\nany verifiable conditions reported to CyberMedia by Phoenix within the warranty\nperiod that cause such product not to perform in accordance with the above\nwarranty or (b) replace such nonconforming product with a conforming product;\nregardless of the option chosen by CyberMedia, it will perform this warranty\nservice within the time frames set forth in Exhibit D. If CyberMedia is unable\nto correct or provide an acceptable workaround for any such error after\nreasonable efforts, CyberMedia will refund to Phoenix any license fees\npreviously paid to CyberMedia for copies of the affected product for which\nPhoenix certifies in a writing signed by an executive officer of Phoenix that it\nwill be making a refund to an affected OEM or Subdistributor. The foregoing\nshall be CyberMedia's sole liability and Phoenix's sole remedy in the event of a\nbreach of the warranty contained in this Section 6.4.\n\n        6.5 CYBERMEDIA MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED WITH\nRESPECT TO THE CYBERMEDIA PRODUCTS OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS\nSECTIONS 6.2 THROUGH 6.4, INCLUSIVE, AND CYBERMEDIA EXPRESSLY DISCLAIMS ANY SUCH\nWARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR\nMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.\n\n        6.6 Nothing herein shall diminish a party's support obligation to the\nother as set forth elsewhere in this Agreement.\n\n\n                                      -11-\n\n7.      INTELLECTUAL PROPERTY INDEMNITY\n\n        7.1 CyberMedia agrees to defend Phoenix, its officers, employees,\nagents, representatives, sublicensees, and\/or customers (collectively, the\n\"Indemnified Party\"), at CyberMedia's expense, against any claim, action or\nproceeding brought against any Indemnified Party to the extent that it is based\non a claim that the use of the CyberMedia Products and\/or the Customization\nTools, including software and related documentation, licensed or sublicensed to\nthe Indemnified Party hereunder, when used in accordance with the terms and\nconditions of this Agreement, infringes any copyright or U.S. patent or\nmisappropriates any trade secret and agrees to pay any liabilities, damages,\ncosts and expenses (including the actual fees of attorneys and other\nprofessionals and all related costs and expenses) finally awarded in any such\nclaim, action or proceeding. CyberMedia will be relieved of its obligations\nunder this Section 7.1 unless Phoenix gives (a) prompt written notice of any\nsuch claim, action or proceeding, (b) all authority to direct the defense and\nsettlement of such claim, action or proceeding (unless CyberMedia is not\ndefending the action in good faith), and (c) all authority, reasonably available\ninformation and assistance (at CyberMedia's expense) reasonably requested by\nCyberMedia for the defense of the same. In connection with the preceding\nsentence, all of the facts and circumstances shall be considered in determining\nwhether or not Phoenix is complying, including without limitation, the\ncommitments of Phoenix personnel who may be needed to provide the information or\nassistance so requested by. If any of the CyberMedia Products or the\nCustomization Tools are held in any such claim, action or proceeding to infringe\nand use thereof is enjoined, CyberMedia will, at its own expense, procure for\nthe Indemnified Party the right to continue using them, replace them with\nfunctionally equivalent non-infringing products, or modify them to become\nfunctionally equivalent noninfringing products. EXCEPT FOR WILFUL INFRINGEMENT\nOF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY, THIS SECTION 7.1 STATES\nCYBERMEDIA'S ENTIRE OBLIGATION WITH RESPECT TO THE INFRINGEMENT OF ANY\nINTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY.\n\n        7.2 Notwithstanding the provisions of Section 7.1, CyberMedia will have\nno liability for any infringement claim of any kind:\n\n               (a) to the extent the claim relates to a modified version of such\nproducts, which modification was made other than by or for CyberMedia, if the\nclaim, suit or proceeding would have been avoided if the modification had not\nbeen made; or\n\n               (b) to the extent it is based on a combination of any of the\nCyberMedia Products or Customization Tool with software or hardware not supplied\nby CyberMedia to perform an operation, function or process or to form an\napparatus that performs a function, operation or process other than those that\nthe CyberMedia Products or Customization Tools are designed by CyberMedia to\nperform; or\n\n               (c) to the extent it results from the failure of the Indemnified\nParty to use within 45 days after receipt thereof any updated or modified\nversion of CyberMedia Products or Customization Tools which CyberMedia notifies\nthe Indemnified Party is intended to avoid the infringement or alleged\ninfringement. For purposes of this Section 7.2(c) CyberMedia and Phoenix will\nonly be required to notify each other and the notified party will be required to\nnotify its customers and sublicensees; or\n\n\n                                      -12-\n\n               (d) to the extent it is based on or arises out of CyberMedia's\ncompliance with Phoenix's designs, specifications or instructions.\n\n8.      LIMITATION OF LIABILITY\n\n        REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL\nPURPOSE OR OTHERWISE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR\nANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES,\nEVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER\nPARTY'S TOTAL LIABILITY AND INDEMNITIES UNDER THIS AGREEMENT FOR ALL CAUSES OF\nACTION ON A CUMULATIVE BASIS ARISING DURING ANY PARTICULAR YEAR EXCEED THE\nPAYMENTS ACTUALLY MADE BY PHOENIX HEREUNDER DURING THE YEAR PRECEDING THE YEAR\nDURING WHICH THE CLAIM UPON WHICH THE LIABILITY OR INDEMNITY IS BASED WAS FIRST\nMADE (OR, IN THE CASE OF CLAIMS MADE DURING THE FIRST YEAR, TWO MILLION\nDOLLARS); PROVIDED, HOWEVER, THAT THE PRECEDING CLAUSE SHALL NOT APPLY TO\nCYBERMEDIA'S REFUND OBLIGATIONS UNDER SECTION 6.4 OR CYBERMEDIA'S OBLIGATIONS\nUNDER SECTION 7 TO THE EXTENT ARISING OUT OF WILLFUL INFRINGEMENT.\n\n9.      CONFIDENTIALITY\n\n        9.1 (a) During the Term, each Party will hold any of the other's\nConfidential Information (as defined below) in confidence and will: (i) use the\nsame degree of care to prevent unauthorized disclosure of the Confidential\nInformation and unauthorized disclosure or unauthorized use of the other's\nSource Code that the receiving Party uses with its own information of like\nnature (but in no event less than reasonable care), (ii) limit disclosure of the\nConfidential Information, including any materials regarding the Confidential\nInformation that the receiving Party has generated, to such of its employees and\ncontractors, Subdistributors, OEMs, and Other Manufacturers as have a need to\nknow the Confidential Information to accomplish the purposes of this Agreement,\n(iii) advise its employees, agents, contractors, Subdistributors, OEMs and Other\nManufacturers of the confidential nature of the Confidential Information and of\nthe receiving Party's obligations under this Agreement.\n\n            (b) For purposes of this Agreement, the term \"Confidential\nInformation\" refers to the following items relating to the confidential and\nproprietary information, including trade secrets, of the disclosing Party: (i)\nall written materials provided by the disclosing Party that are clearly marked\nas confidential, (ii) any tangible materials provided by the disclosing Party\nthat are clearly marked as confidential, and (iii) all information that is\norally or visually disclosed by the disclosing Party if it is identified as\nconfidential at the time of disclosure and is reduced to written disclosure\ndelivered to the receiving Party within 30 days after the original disclosure.\nAll Source Code will be deemed to be \"Confidential Information.\" \"Confidential\nInformation\" will not include, even if marked as confidential, any materials or\ninformation which: (i) is rightfully known without obligations of\nconfidentiality by the receiving Party, (ii) is or becomes public knowledge\nthrough no wrongful act of the receiving party, its agents, employees,\nsublicensees or affiliates, (iii) is rightfully received by the receiving Party\nfrom another party authorized by the disclosing Party to disseminate such\nmaterials or information, (iv) is independently\n\n\n                                      -13-\n\ndeveloped by the receiving Party without breach of this Agreement, or (v) is\napproved in writing for release by the disclosing Party. Any employee,\nSubdistributor, OEM or Other Manufacturer of the receiving Party having access\nto any Confidential Information will be required to sign a non-disclosure\nagreement protecting the Confidential Information if not already bound by such\nan agreement.\n\n               (c) Each Party agrees and acknowledges that unauthorized use or\ndisclosure of Confidential Information would cause the other party irreparable\nharm which may not be adequately compensated for by monetary damages and that,\naccordingly, a Party is entitled to preliminary and injunctive relief to remedy\nany actual or threatened unauthorized use or disclosure of its Confidential\nInformation.\n\n        9.2 Except to the extent required by law or judicial order (including\nrules or regulations of any federal, state or local authority) or except as\nprovided herein, neither Party shall disclose this Agreement or any of its terms\nwithout the other's prior written consent, which consent will not be delayed or\nunreasonably withheld. Either Party may disclose this Agreement to the extent\nrequired by law or judicial order, or rules or regulations of any federal, state\nor local organization, provided that the disclosing Party notifies the other\nParty of the purpose of the disclosure and of the portions of the Agreement it\nintends to disclose prior to such disclosure and will cooperate with such other\nParty to seek appropriate protective treatment, if requested by such other\nParty.\n\n        9.3 Prior to the Effective Date, the Parties will agree on the content\nand timing on the issuance of a joint press release announcing the existence of\nthis Agreement.\n\n        9.4 Neither Party will be required to disclose to the other any\nconfidential information of any third party without having first obtained such\nthird party's consent.\n\n        9.5 The provisions of this Section 9 will survive for five years \nfollowing termination of this Agreement.\n\n10.     PROPRIETARY RIGHTS\n\n        10.1 The CyberMedia Products and the Customization Tools are and will\nremain the sole and exclusive property of CyberMedia and its suppliers, if any.\n\n        10.2 Phoenix will use its reasonable efforts to protect CyberMedia's\nintellectual property rights in the CyberMedia Products and the Customization\nTools and will report promptly to CyberMedia any infringement of such rights.\n\n        10.3 Marks. In order to promote brand recognition, the Parties agree to\nuse the CyberMedia Marks when promoting the CyberMedia Products. Subject to the\nterms and conditions of this Agreement, CyberMedia grants Phoenix a\nnon-exclusive, non-transferable license for the Term to use its Marks relating\nto the CyberMedia Products for use in marketing such products, provided that\nsuch use is in accordance with such CyberMedia' s trademark usage guidelines\nthen in effect. When using CyberMedia's Marks, Phoenix will reference CyberMedia\nas the owner of such Marks. Phoenix agrees that it will at no\n\n\n                                      -14-\n\ntime (i) claim any interest in CyberMedia Marks, (ii) register, seek to\nregister, or cause to be registered any of CyberMedia Marks, (iii) adopt and use\nany trademark that might be confusingly similar to CyberMedia trade names,\ntrademarks or logos, or (iv) attach any trademark, logo or trade designation to\nCyberMedia products other than the Marks. Each party will be responsible for\nfiling its Marks in such jurisdictions as it deems appropriate.\n\n11.     MAINTENANCE, SUPPORT AND TRAINING\n\n        11.1 Phoenix's Responsibilities. Throughout the Term, Phoenix will be\nresponsible for providing the following support to OEMs, Other Manufacturers and\nSubdistributors sublicensed by Phoenix to use, copy or distribute CyberMedia\nProducts:\n\n               (a) First line technical support for CyberMedia Products\ncomparable to that provided by Phoenix to its customers for other Phoenix\nproducts;\n\n               (b) Technical training with respect to CyberMedia Products to\nOEMs provided on a regular, periodic basis;\n\n               (c) Creation of marketing materials (such as brochures, data\nsheets, advertising, customer testimonials and the like) relating to CyberMedia\nProducts targeted for OEMs;\n\n               (d) Customization of the CyberMedia Products as may be requested\nby such OEMs, Subdistributors and Other Manufacturers and agreed to by Phoenix\nto the extent possible using the Customization Tools or with source Code\nprovided Phoenix by CyberMedia pursuant to Section 11.2(d);\n\n               (e) Advising OEMs, Other Manufacturers and Subdistributors with\nwhom it enters into agreements relating to CyberMedia Products that CyberMedia\nwill not provide first line support to end users that receive the CyberMedia\nProducts bundled with their OEM PC Computers.\n\n               (f) Internationalization. If an OEM or Other Manufacturer\nrequires a language version of CyberMedia Products which is neither available\nnor is scheduled by CyberMedia to be released within the ensuing six months,\nPhoenix will have the option of creating that language version, directly or\nthrough a subcontractor. Phoenix may exercise such option by giving CyberMedia\nnotice of its desire to do so and CyberMedia will promptly provide Phoenix with\nthe materials (including Source Code) as are reasonably necessary to create such\nlanguage version of the CyberMedia Products. The use of any Source Code will be\nat no charge but will be subject to a license agreement containing such\nrestrictions as CyberMedia may reasonably require. Phoenix will be entitled to a\ncredit of [ * ] per unit reported on any royalty report submitted pursuant to\nSection 4.1 hereof until such credits equal one-half of the expense incurred by\nPhoenix and CyberMedia to create (or have created for it) such other language\nversion of CyberMedia Products pursuant to the exercise of such option. Each\nParty will provide the other with its records supporting the determination of\nsuch expense. CyberMedia may elect to acquire the translation of the CyberMedia\nProduct created pursuant to the exercise by Phoenix of such option by giving\nPhoenix written notice and paying Phoenix the other half of the expense incurred\nby Phoenix to create (or have created for it) such translation.\n\n- --------\n*Certain information on this page has been omitted and filed\n separately with the Commission. Confidential treatment has\n been requested with respect to the omitted portions.\n\n\n                                      -15-\n\n        11.2 CyberMedia's Responsibilities. CyberMedia will provide Phoenix with\nthe following support throughout the Term:\n\n               (a) Technical training of Phoenix engineers (including Field\nApplications Engineers) in the use and structure of CyberMedia Products and the\nuse of Customization Tools. At no charge to Phoenix, CyberMedia will train two\n(or more if agreed) technically qualified employees of Phoenix at CyberMedia' s\nfacility where its research and development organization is located for\non-the-job training and such further technical training as may be further and\nperiodically agreed to by the Parties.\n\n               (b) Back-up technical support to Phoenix's first-line technical\nsupport. This will include (i) direct telephonic support to Phoenix but not to\nPhoenix's OEM, Subdistributor or Other Manufacturer sublicensees of CyberMedia\nProducts, (ii) electronic access by Phoenix whether via the Internet, dial-in,\nBBS, or as otherwise agreed, (iii) the development and distribution of fixes to\nerrors discovered in the CyberMedia Products to Phoenix (or by making them\nelectronically available to Phoenix, OEMs, Other Manufacturers and\nSubdistributors), and, (iv) if necessary, on-site support to Phoenix. The level\nof technical support to be provided Phoenix by CyberMedia, including response\ntimes, is set forth in Exhibit D attached hereto.\n\n               (c) Marketing support which includes creation and provision to\nPhoenix brochures, data sheets, white papers, competitive analyses, advertising,\ncustomer referrals and the like relating to CyberMedia Products. These items\nwill be provided in electronic form and, if requested by Phoenix, in hard copy,\ncamera-ready form.\n\n               (d) If the Customization Tools are not sufficient to enable\nPhoenix to perform the customization or integration work requested by an OEM,\nOther Manufacturer or Subdistributor, then at Phoenix's option, Phoenix will\nadvise CyberMedia and CyberMedia will, at its option, within 10 working days\nafter receipt of such advise, either provide Phoenix with the Source Code to the\nCyberMedia Products or such other materials as are necessary to perform such\nwork or will provide the service of CyberMedia engineer(s) to perform such work\nfor Phoenix. Any license for such Source Code shall be at no charge to Phoenix\nbut will contain such restrictions as CyberMedia may reasonably require.\nCyberMedia will invoice Phoenix and not the OEM, Other Manufacturer or\nSubdistributor for such work and CyberMedia will bill for such services at the\nrate of $150\/hour plus all reasonable travel, stay and other incidental\nexpenses. The Parties agree that as between them, Phoenix will have the\nexclusive right to provide such integration or customization services to OEMs if\nsuch services can be performed using the Customization Tools or if CyberMedia\nhas agreed to license Phoenix with the Source Code needed to perform the\nparticular customization.\n\n               (e) During the Term, CyberMedia will use all reasonable\ncommercial efforts to promote, enhance and upgrade the CyberMedia Products and\nto strive to keep CyberMedia Products competitive with other's products that\ncompete in the same market.\n\n               (f) Internationalization: CyberMedia either has versions of, or\nhas plans to develop CyberMedia Products in the languages set forth in Exhibit\nA. CyberMedia will keep Phoenix informed as to those development plans and any\nfuture plans for the development of CyberMedia Products in other\n\n\n                                      -16-\n\nlanguages and will report on these plans at each meeting referred to in Section\n11.3 below. Each language version of CyberMedia Products created by CyberMedia\nwill be treated as a CyberMedia Product for purposes of this Agreement.\n\n        11.3 Coordination and Program Reviews. The Coordinators and senior\nexecutives of CyberMedia and Phoenix will meet at least once per month during\nthe first six months following the Effective Date and at least once per quarter\nthereafter. At such meetings, the attendees will review progress and results\nagainst each Party's marketing and engineering plans with respect to CyberMedia\nProducts, will establish development and marketing priorities and coordinate\noverall marketing, promotional and development strategies for the PC automatic\nservice and support market. Such discussions will specifically include reports\nby Phoenix on its progress toward entering into license agreements with OEMs and\nPhoenix's forecasts for sales of CyberMedia Product licenses and reports by\nCyberMedia as to its future CyberMedia Product development plans, including the\nanticipated or planned use of any third party software and the expected royalty\nobligation to the third party. In addition, the meetings can be used as a forum\nfor the Parties to resolve conflicts or disputes which may have arisen under the\nAgreement. Each party will provide to the other their respective forecasts and\nmarket projections for CyberMedia Products which will include such information\nas the Parties agree.\n\n        11.4 Support for CyberScript. Promptly after the Effective Date, Phoenix\nwill attempt to schedule a meeting with appropriate personnel from Intel\nCorporation (\"Intel\") for the purpose of proposing with CyberMedia that Intel\nsupport CyberMedia's CyberScript language as the industry standard language for\nKnowledge Bases.\n\n12.     OIL CHANGE AMENDMENT; FIRSTAID PLUS PACK DEVELOPMENT AGREEMENT\n\n        12.1 As soon as practical after the Effective Date, with a target of not\nlater than October 9, 1996, the Parties will use all reasonable commercial\nefforts to negotiate in a definitive agreement relating to the development of\nFirst Aid Plus Pack. Such agreement will be coterminous with this Agreement and\nwill contain such special terms and conditions, including without limitation a\ndetailed statement of work with respect to the First Aid Plus Pack, statements\nas to ownership of First Aid Plus Pack, and special licensing and sublicensing\nterms as the parties may negotiate.\n\n13.     TERM; TERMINATION; EFFECT OF TERMINATION\n\n        13.1 The initial Term shall be from the Effective Date through December\n31, 2001, unless terminated earlier as provided herein; thereafter, this\nAgreement will renew for consecutive one Year periods.\n\n        13.2   Either Party will have the right to terminate this Agreement:\n\n               (a) if the other Party breaches any material obligation imposed\non it under this Agreement and fails to cure such breach within 30 days after\nthe giving of written notice thereof by the Party alleging such breach or such\nlonger period as to which the parties may agree if such breach is not\n\n\n                                      -17-\n\ncapable of being cured within 30 days, provided that the breaching party has\nbegun working on the cure during such 30 day period. Such notice will specify\nthe obligation allegedly breached;\n\n               (b) the other Party becomes the subject of a voluntary petition\nin bankruptcy or any voluntary proceeding relating to insolvency, receivership,\nliquidation, or composition for the benefit of creditors;\n\n               (c) the other Party becomes the subject of an involuntary\npetition in bankruptcy or any involuntary proceeding relating to insolvency,\nreceivership, liquidation, or composition for the benefit of credits, if such\npetition or proceeding is not dismissed within 60 days of filing;\n\n               (d) \n                       [ * ] \n\n\n        13.3   The following is applicable upon termination of this Agreement:\n\n               (a) The confidentiality provisions of this Agreement will survive\ntermination of this Agreement in accordance with the provisions of Section 9\nabove. In addition, the provisions of Articles 1, 5, 7, 8, 9, 11 and 14 and, for\nthe term of the license agreements as specified in Section 13.3(b), Sections 2.1\n(other than subsection (d) thereof) and 2.2 will survive termination of this\nAgreement.\n\n               (b) Notwithstanding the foregoing, on any termination of this\nAgreement, Phoenix will have no rights to sublicense the CyberMedia Products to\nany person other than to OEMs or Other Manufacturers during the then remaining\nterm of their respective license agreements with Phoenix and other than to\nSubdistributors for sublicensing on to such OEMs and Other Manufacturers during\nthe then remaining term of each such OEMs' or Other Manufacturers' license\nagreements with the Subdistributors. At the end of the terms of all such license\nagreements, Phoenix will cease granting any further sublicensing rights with\nrespect to CyberMedia Products and will either promptly return to CyberMedia or\npromptly destroy all but a single archival copy of the CyberMedia Products,\nincluding related documentation, and, in the case of destruction, will cause an\nofficer of Phoenix to certify to CyberMedia in writing that such destruction has\noccurred; and\n\n               (c) From and after the date Phoenix may no longer sublicense\nCyberMedia products, neither Party will be required to provide the other with\nany of its products or services.\n\n14.     GENERAL\n\n        14.1 A Party may assign its rights and delegate its duties, by operation\nof law or otherwise, in whole but not in part, to any third party. However, the\nassigning Party shall give the other Party prior written notice of any such\nassignment Party and the non-assigning Party may terminate this Agreement at any\ntime thereafter on thirty days' prior written notice if such third party is a\ncompetitor of the non-assigning Party. Subject to the foregoing, this Agreement\nwill be binding on and inure to the benefit of the respective successors and\nassigns of the Parties.\n\n- --------\n*Certain information on this page has been omitted and filed\n separately with the Commission. Confidential treatment has\n been requested with respect to the omitted portions.\n\n\n                                      -18-\n\n        14.2 Any written notice required or permitted to be made or given under\nthis Agreement will be made by personal delivery, by courier or messenger (such\nas Federal Express), by FAX to the telephone number indicated below, or by first\nclass mail, postage prepaid and will be deemed delivered upon receipt when sent\nto the following respective addresses of the Parties:\n\nTo CyberMedia:        CyberMedia, Inc.\n                      3000 Ocean Park Blvd., Suite 2001\n                      Santa Monica, CA 90405\n                      Attn: Controller\n                      FAX: 310-581-4751\n\nwith a copy to:       Arthur M. Schneiderman, Esq.\n                      Wilson, Sonsini, Goodrich &amp; Rosati\n                      650 Page Mill Road\n                      Palo Alto, CA 94304\n\nTo Phoenix:           Phoenix Technologies Ltd.\n                      2770 De La Cruz Blvd.\n                      Santa Clara, CA 95050\n                      Attn: George Adams, Coordinator\n                      FAX: 408-452-1985\n\nwith a copy to the Attention of the Legal Department at the same address and FAX\nnumber.\n\n        A Party may change its address for purposes of this Section 14.2 by\ngiving written notice in the manner set forth above.\n\n        14.3 No amendment or modification of this Agreement shall be effective\nunless it is set forth in a writing which refers to the particular provision(s)\nso amended or modified and is executed by authorized representatives of both\nparties. No failure or delay by either Party in exercising any right, power or\nremedy will operate as a waiver of any such right, power or remedy and any\nwaiver as to a breach of any particular provision will not be deemed to be a\nwaiver of any future breach of that same provision.\n\n        14.4 If any provision of this Agreement or the Exhibits is held by a\ncourt of competent jurisdiction to be unenforceable or contrary to law, the\nremaining provisions of this Agreement and the Exhibits will remain in full\nforce and effect.\n\n        14.5 The Exhibits are an integral part of this Agreement and are\nincorporated herein by this reference.\n\n        14.6 This Agreement shall be governed by and construed in accordance\nwith the laws of the State of California, without reference to its choice of law\nprovisions, and United States patent and copyright laws.\n\n\n                                      -19-\n\n        14.7 Each party will, at its own expense, comply with any governmental\nlaw, statute, ordinance, administrative order, rule or regulation applicable to\nthe exercise and performance of its duties and obligations hereunder and under\nthe Exhibits and shall procure all licenses and pay all fees and other charges\nrequired thereby. Neither Party will export or re-export or authorize or permit\nits employees, agents, contractors or sublicensees to export or re-export any\nproducts covered under this Agreement to any country specified as a prohibited\ndestination in applicable federal, state and local laws, rules, regulations and\nordinances, including without limitation the regulations of the U.S. Department\nof Commerce and\/or the U.S. Department of State, without first obtaining any\nrequisite approval.\n\n        14.8 All rights and remedies, whether conferred hereunder or by any\nother instrument or law, will be cumulative and may be exercised singularly or\nconcurrently. Failure by either Party to enforce any term will not be deemed a\nwaiver of future enforcement of that or any other term. The terms and conditions\nstated herein are declared to be several.\n\n        14.9 Neither Party will be held liable for failure to fulfill any of its\nobligations hereunder if such failure is due to flood, extreme weather, fire, or\nother natural calamity, acts of government or other causes beyond the control of\nsuch Party.\n\n        14.10 This Agreement may be executed in counterparts, each of which\nshall be deemed to be an original and all of which when taken together shall\nconstitute one single agreement between the Parties.\n\n        14.11 The Parties agree to attempt to resolve any dispute hereunder\nthrough good faith negotiations for at least 30 days before commencing any\nlitigation with respect to such dispute.\n\n        14.12 This Agreement, including the Exhibits, sets forth the entire\nagreement between the parties with respect to the subject matter hereof and\nsupersedes all prior communications, both written and oral, with respect to such\nsubject matter.\n\n        IN WITNESS WHEREOF, the parties have caused this Agreement to be signed\nby their respective duly authorized representative as of the date first above\nwritten.\n\n\nCYBERMEDIA, INC.                                   PHOENIX TECHNOLOGIES LTD.\n\n\nBy: \/s\/ Unni Warrier                          By:      ILLEGIBLE\n   ---------------------------------                  -------------------------\n\nName: Unni Warrier                            Name:    ILLEGIBLE\n   ---------------------------------                  -------------------------\n\nTitle: President                              Title:   ILLEGIBLE\n   ---------------------------------                  -------------------------\n\n\n                                      -20-\n\nEXHIBIT A             Specifications for CyberMedia Products\n\nEXHIBIT B             Minimum License Terms and Conditions\n\nEXHIBIT C             [DELETED.]\n\nEXHIBIT D             Support Commitments\n\nEXHIBIT E             Prospects and Customers\n\n\n\n\n                                      -21-\n\n                                    EXHIBIT A\n\n                     SPECIFICATIONS FOR CYBERMEDIA PRODUCTS\n\n\n                             1. FIRST AID 95 DELUXE\n\n        First Aid 95 Deluxe is a software product that is designed to detect,\ndiagnose and resolve a wide range of software conflicts and configuration\nproblems associated with Windows-based PCs, using a Knowledge Base of product\nand vendor-specific technical support information. Users can update this\nKnowledge Base one time during the six month period commencing on the date the\nend user registers hiker copy of First Aid 95 Deluxe by connecting to\nCyberMedia's Internet .site, which houses a regularly updated version of the\nKnowledge Base. Key features of First Aid 95 Deluxe currently include:\n\n                                      [*]\n\n        During the course of this Agreement, CyberMedia may develop and market\nnew products that replace First Aid 95. Such replacement products and their\nreplacements shall also be covered under this License Agreement, subject to the\ncondition that all such products shall provide the end user with the\n\n\n- --------\n*Certain information on this page has been omitted and filed\n separately with the Commission. Confidential treatment has\n been requested with respect to the omitted portions.\n\ncapability to access CyberMedia's Internet server via the Internet or other\navailable electronic means to perform various functions, including updating the\nproduct Knowledge Base, one time during the six months after the end user\nregisters his\/her copy of the product. In particular, CyberMedia plans to\nintroduce two products First Aid 3.1 and First Aid 97 during Q4 of 1996 that run\non the Windows 3.1 and Windows 95 platforms respectively and replace First Aid\n95 Deluxe.\n\n        This Agreement will also cover the 1-user version of First Aid 95 Deluxe\nthat runs on the Windows NT platform as and when that product becomes available.\n\n        CyberMedia plans to develop and release the following translated\nversions of First Aid 95 Deluxe and its replacements: French, International\nGerman, Spanish and Japanese.\n\n\n                            2. OIL CHANGE OEM VERSION\n\n        The OEM Version of Oil Change is an Internet-based software product\n(currently in Beta) that is designed to enable users of PC Computers to locate\neasily the most recent software updates, patches, and drivers applicable to\ntheir systems and to download these via the Internet. The OEM Version of Oil\nChange will include the following features:\n\n                                      [*]\n\n        Users will be entitled to use the OEM Version of Oil Change for six\nmonths from the date the end user registers his\/her copy of the OEM Version of\nOil Change, solely to retrieve and install updates, patches and drivers that\nrelate to hardware and software shipped with the OEM PC Computer that are posted\nat CyberMedia's Internet site.\n\n\n\n- --------\n*Certain information on this page has been omitted and filed\n separately with the Commission. Confidential treatment has\n been requested with respect to the omitted portions.\n\n\n                                       -2-\n\n                                    EXHIBIT B\n\n                        END-USER SUBLICENSE RESTRICTIONS\n\n\n        All end-user sublicenses of the Software shall include provisions that:\n\n        1. only a personal, nontransferable, and nonexclusive right to use the\nSoftware on a single personal computer or PC device, as applicable, is granted\nto such end user;\n\n        2. Seller's licensors retain all title to the Software, and all copies\nthereof, and no title to the Software, or any intellectual property in the\nSoftware, is transferred to such end user;\n\n        3. the end user may not copy the Software, except for one (1) copy of\nthe Software for backup or archival purposes only and only as necessary to use\nthe Software on the applicable personal computer or PC device, and all such\ncopies shall contain all copyright and other proprietary notices or legends of\nSeller's licensors on the Software delivered to the end user; and no copies of\nthe accompanying documentation may be made by the end user;\n\n        4. the end user agrees not to reverse assemble, decompile, or otherwise\nattempt to derive source code from the Software;\n\n        5. the end user agrees to comply with all export and re-export\nrestrictions and regulations of the Department of Commerce or other United\nStates agency or authority, and not to transfer, or authorize the transfer, of\nany Software to a prohibited country or otherwise in violation of any such\nrestrictions or regulations;\n\n        6. the end user may transfer the Software to a transferee in connection\nwith the transfer of the applicable personal computer or PC device (i) to a\ntransferee within the same country as the original end-user sublicense was\ngranted, and (ii) to a transferee within a different country only with the\nwritten consent of Seller, and in either case subject to the transferee's\nexecuting a written end-user sublicense in the same form as the original end\nuser's sublicense;\n\n        7. Seller's licensors are a direct and intended beneficiaries of the\nend-user sublicense and may enforce it directly against the end user; and\n\n        8. Seller's licensors shall not be liable to the end user for any\ngeneral, special, direct, indirect, consequential, incidental, or other damages\narising out of the sublicense of the Software.\n\n\n\n                                    EXHIBIT D\n\n                             MAINTENANCE AND SUPPORT\n\n\nEMERGENCY SUPPORT\n\n        Qualified CyberMedia personnel will be available to respond seven days\nper week, 24 hours per day, to work with Phoenix personnel to support emergency\nproblems in CyberMedia Products (such as line-down) which may have been caused\nby CyberMedia Products. Such support should include, without limitation,\nconsideration of making modifications to the CyberMedia Products as a solution\nto the problem. Nothing in this Section shall require CyberMedia employees to\nperform in any manner that Phoenix does not expect of its own employees.\n\nMAINTENANCE AND ROUTINE SUPPORT\n\n        During the term of this Agreement, CyberMedia will provide reasonable\nmaintenance and support of CyberMedia Products, as follows:\n\n1. Documentation. CyberMedia shall supply Phoenix with its support documentation\nnecessary to enable Phoenix to provide first level support to Phoenix's\ncustomers. In addition, CyberMedia shall permit Phoenix on-line and other access\nto the internal bug list for CyberMedia Products or an equivalent database for\nthe CyberMedia Products.\n\n2. Support. CyberMedia shall make reasonable efforts to supply Phoenix with\nsecond level support as described in this Exhibit for CyberMedia Products.\nCyberMedia will provide telephone responses to Phoenix as quickly as is\nreasonable, but in no event more than one working day of receipt of Phoenix's\ntelephone support questions. CyberMedia will be available to take Phoenix's\nsupport questions from 10AM to 7PM Pacific Time (Standard or Daylight during the\nappropriate season). If Phoenix, in its reasonable judgment and discretion,\ndetermines it cannot remedy a problem with a CyberMedia Product in supporting\nits customers, Phoenix shall furnish CyberMedia a problem report which shall\nidentify and describe the problem using the following definitions:\n\n        Fatal:               condition which precludes all useful work from \n                             being done;\n\n        Severe Impact:       condition which precludes one or more major \n                             functions from being performed;\n\n        Degradation:         condition which disables one or more non-essential\n                             functions;\n\n        Minimal Impact:      any other condition which requires correction.\n\n\n\n                                    EXHIBIT D\n\n                       MAINTENANCE AND SUPPORT (CONTINUED)\n\n\n        Upon receiving a problem report from Phoenix and unless the parties\nagree in writing, CyberMedia shall respond and correct the problem in accordance\nwith the following table:\n\n\n\n\n                                                          WRITTEN                                         \n                                                      ACKNOWLEDGMENT OF          PATCH, WORK AROUND,      FORMAL FIX, UPDATE FIX\n                                                      PROBLEM REPORT          TEMPORARY FIX, BUG FIX,           UPGRADE, OR\n PRIORITY            DESCRIPTION                   DELIVERED TO PHOENIX           OR UPDATE RELEASE             ENHANCEMENT\n- -------------------------------------------------------------------------------------------------------------------------------\n                                                                                             \nFatal               Condition which                 Following business         Constant effort by            Within 60 days\n                    precludes all useful                                       highly qualified\n                    work from being done                                       CyberMedia personnel\n                                                                               until relief is provided,\n                                                                               but not more than 48\n                                                                               hours\n- -------------------------------------------------------------------------------------------------------------------------------\nSevere Impact       Condition which                 Following business         Constant effort by            Within 60 days\n                    precludes one or more                                      highly qualified\n                    major functions from                                       CyberMedia personnel\n                    being performed                                            until relief is provided,\n                                                                               but not more than 72\n                                                                               hours\n- -------------------------------------------------------------------------------------------------------------------------------\nDegradation         Condition which                 Two business days          10 days                       Within 100 days\n                    disables one or more          \n                    non-essential functions       \n- -------------------------------------------------------------------------------------------------------------------------------\nMinimal Impact      Any other condition             Ten business days          60 days                       Within 150 days\n                    which requires          \n                    correction\n- -------------------------------------------------------------------------------------------------------------------------------\n\n\n\n1. Phoenix Assistance. To assist CyberMedia in providing the most effective\nresponsiveness to trouble reporting and solution, Phoenix will provide access\n(which at Phoenix's option, may be on-site at Phoenix) to at least two (2)\nsystems in which the problems can be reproduced (if CyberMedia does not have\nsuch systems available), and access to Phoenix's hardware and software debugging\nresources, if CyberMedia so requests.\n\n2. Down Revisions. Unless otherwise agreed by the Parties, twelve (12) months\nafter CyberMedia ceases to ship a version of a CyberMedia Product to any third\nparty, the previous version need no longer be supported by CyberMedia.\n\n3. Bug Fixes. If CyberMedia discovers any bugs in the technology delivered to\nPhoenix hereunder, CyberMedia shall report them to Phoenix. If CyberMedia\ncreates a bug fix or maintenance release of the related technology, CyberMedia\nshall make the bug fix available to Phoenix no later than it is made available\nto any third party.\n\n\n                                       -2-\n\n                                    EXHIBIT E\n\n                         LIST OF PROSPECTS AND CUSTOMERS\n\n\nProspects\n- ---------\n\n  [*]                                                    [*]\n\nCyberMedia Customers\n- --------------------\n\n  [*]\n\n\n- --------\n*Certain information on this page has been omitted and filed\n separately with the Commission. Confidential treatment has\n been requested with respect to the omitted portions.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7255,8515],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9619],"class_list":["post-42240","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cybermedia-inc","corporate_contracts_companies-phoenix-technologies-ltd","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42240","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42240"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42240"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42240"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42240"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}