{"id":42619,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/oem-license-agreement-network-computer-inc-and-wind-river.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"oem-license-agreement-network-computer-inc-and-wind-river","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/oem-license-agreement-network-computer-inc-and-wind-river.html","title":{"rendered":"OEM License Agreement – Network Computer Inc. and Wind River Systems Inc."},"content":{"rendered":" NETWORK COMPUTER, INC.\n OEM LICENSE AGREEMENT\n\n This OEM License Agreement (\"AGREEMENT\") is entered into by and \nbetween Network Computer, Inc., a Delaware corporation, with principal \noffices at 1000 Bridge Parkway, Redwood Shores, CA 94065 (\"NCI\"), and Wind \nRiver Systems, Inc., a Delaware corporation, with principal offices at 1010 \nAtlantic Avenue, Alameda, California 94501 (\"LICENSEE\").\n \n RECITAL\n\n The Licensee desires to license from NCI, and NCI desires to license \nto the Licensee, the right to access and modify the source code version of \nNCI's customized Internet consumer software and duplicate, distribute and \nsublicense the object code versions of such modified source code bundled with \ncertain Licensee Products (defined below), and, subject to the restrictions \ndescribed herein, certain specified source code, in all cases in accordance \nwith the terms and conditions of this Agreement.\n \n AGREEMENT\n \n1. DEFINITIONS\n\n For purposes of this Agreement, the following terms shall have the \nfollowing meanings:\n\n 1.1 \"ATTACHMENT(S)\" means the attachments to this Agreement \nwhich are attached hereto and incorporated herein:\n\n 1.1.1 Attachment A (Product(s) and Trademark \nDescription) which sets forth a description of the NCI Product and NCI \nTrademarks licensed hereunder; provided, however, that NCI may add or delete \nNCI Trademarks from Attachment A from time to time upon thirty (30) days \nnotice.\n\n 1.1.2 Attachment B (Licensee Product, Licensee \nTrademarks, Pricing and Payment Schedules, Territory and Optional \nProducts\/Modules) which sets forth a description of the Licensee Product with \nwhich the NCI Product will be bundled, the Licensee Trademarks licensed \nhereunder, the NCI Product pricing and payment schedule, the Territory in \nwhich Licensee may distribute the NCI Product pursuant to the terms and \nconditions hereof, and any Optional Products\/Modules that may be included in \nthe NCI Product subject to mutually agreeable terms and availability.\n\n 1.1.3 Attachment C (OEM Maintenance and Technical \nSupport) which sets forth NCI's and Licensee's respective maintenance and \ntechnical support obligations.\n\n\n \n\n\n 1.1.5 Attachment D (User Interface and Branding \nRequirements for Directed Browsing) which sets forth Licensee's obligations \nregarding use and inclusion of the NCI logo set forth on Attachment A hereto \n(\"NCI Logo\") as part of the user interface for Directed Browsing applications \nused with the Bundled Product.\n\n NCI and Licensee may amend Attachments B and E to this \nAgreement from time to time, in accordance with the provisions of Section \n14.2 below, to include additional NCI Products or Licensee Products \nhereunder, and to specify the relevant terms and conditions with respect to \nsuch additional NCI Products or Licensee Products. Unless the parties \nclearly specify to the contrary, no such amendment shall have the effect of \nmodifying, terminating or superseding the relevant terms and conditions \nregarding any other NCI Product or Licensee Product hereunder.\n\n 1.2. \"DERIVATIVE WORK(S)\" means a revision, modification, \ntranslation, abridgment, condensation, or expansion of the NCI Product, NCI \nSource Code or End User Documentation, as applicable, or any form in which \nthe NCI Product, NCI Source Code or End User Documentation, as applicable may \nbe recast, transferred, or adapted, which, if prepared without the consent of \nNCI, would be a copyright infringement.\n\n 1.3. \"DISTRIBUTOR\" means any third party appointed by \nLicensee pursuant to this Agreement to distribute the Bundled Product to \nsubdistributors, Customers or End Users in accordance with the terms hereof.\n\n 1.4. \"EFFECTIVE DATE\" means December __, 1997.\n\n 1.5. \"END USER\" means any third party which buys or otherwise \nacquires the right to use a product which contains the Bundled Product for \nits own use and not for further distribution.\n\n 1.6. \"LICENSEE PRODUCT\" means the specific product or service \noffered by Licensee and described on Attachment B hereto that may be bundled \nwith the NCI Product. As used in this Agreement, the term Licensee Product \nshall include any new release or new version of the Licensee Product. \n\n 1.7 \"DIRECTED BROWSING\" means that use specified in \nAttachment A hereto. Directed Browsing includes the Embedded Graphics Usage.\n\n 1.8 \"EMBEDDED GRAPHICS USAGE\" means that use specified in \nAttachment A hereto.\n\n 1.9 \"BUNDLED PRODUCT\" means one or more products developed \nby Licensee that consists of the Licensee Product and any portion of the NCI \nProduct, provided that use of the NCI Product as incorporated in the Bundled \nProduct is limited to either Directed Browsing or Embedded Graphics Usage.\n\n\n -2-\n\n\n 1.10 \"LICENSEE TRADEMARKS\" shall include all Licensee \ntrademarks, logos and designs specified in Attachment B hereto as may be \namended from time to time upon Licensee's written notice to NCI.\n\n 1.11. \"MAJOR AND MINOR UPDATES\" mean updates, if any, to the \nNCI Product. Major Updates involve additions of substantial functionality \nwhile Minor Updates do not. Major Updates are designated by a change in the \nnumber to the left of the decimal point of the product release number \nappearing after the product name, while Minor Updates are designated by a \nchange in such number to the right of the decimal point. NCI is the sole \ndeterminer of the availability and designation of an Update as a Major or \nMinor Update. Major Updates exclude software releases which are reasonably \ndesignated by NCI as new products. Where used herein \"UPDATES\" shall mean \nMajor Updates and Minor Updates.\n\n 1.12. \"PREPAID LICENSE FEE\" means the non-refundable, \nnon-cancelable licensee fee set forth in Attachment B hereto.\n\n 1.13. \"PROGRAM ERRORS\" means one or more reproducible \ndeviations in the NCI Product from the End User Documentation.\n\n 1.14. \"ROYALTY\" means the royalty set forth in Attachment B \nhereto payable upon licensing or distribution of Bundled Product.\n\n 1.15. \"SERVICE FEE\" means the non-refundable prepaid fees set \nforth in Attachment B hereto, which constitute consideration from Licensee to \nNCI for the maintenance and technical support services prescribed in \nAttachment C.\n\n 1.16. \"TERRITORY\" means the geographic area set forth in \nAttachment B.\n\n 1.17. \"NCI PRODUCT\" means the object code version (expressly \nexcluding the NCI Source Code, as defined below) of NCI's proprietary \nsoftware as further described on Attachment A, any Updates thereto as may be \nprovided by NCI to Licensee pursuant to this Agreement, and any Derivative \nWorks thereof made by or on behalf of Licensee. The NCI Product expressly \nexcludes the NCI Source Code and the Excluded Components (each as defined \nbelow).\n\n 1.18 \"NCI SOURCE CODE\" means the mnemonic, high level, \ncommented version of the NCI Product in human readable form written in a \nsource programming language.\n\n 1.19. \"NCI TRADEMARKS\" means any and all NCI trademarks, the \nNCI logos and designs specified in Attachment A hereto as may be amended from \ntime to time upon NCI's written notice to Licensee.\n\n 1.20. \"OPTIONAL PRODUCTS\/MODULES\" means third party modules \nthat NCI desire to include in the NCI Product, subject to availability of \nsource code from the third \n\n\n -3-\n\n\nparty licensor, which are set forth on Attachment B, as may be amended from \ntime to time.\n\n 1.21. \"EXCLUDED COMPONENTS\" means the NCI source and object \ncode for television display, including color correction, anti-flicker, TVBar, \n\"TV:\", and PopTV technology.\n\n 1.22. \"SPECIFIED PARTIES\" means the parties set forth on \nAttachment B.\n\n 1.23. \"REFERENCE PLATFORM\" means the NCI NT 150 x 86 based set \ntop box configured to display on a VGA monitor and any other versions as \namended by NCI from time to time by written notice to Licensee.\n\n 1.24. \"REFERENCE IMPLEMENTATION\" means the object code version \nof the NCI Source Code as compiled by NCI for execution on the Reference \nPlatform.\n\n 1.25. \"INVENTIONS\" means any ideas, concepts, inventions, \nprocedures, techniques or processes devised by Licensee in the course of \nLicensee's exercise of its rights described in Section 2, which is based upon \nor derivative of the NCI Source Code, Distributable Source or the NCI Product.\n\n 1.26. \"CUSTOMER\" means an entity that enters into a license \nagreement with Licensee (directly or through a Distributor or subdistributor) \npursuant to which the Customer obtains a right to sell products containing \nthe Bundled Product to End Users. \n\n 1.27. \"END USER DOCUMENTATION\" means the documents and written \nmaterial or portions thereof, which are distributed generally by NCI to the \nLicensee for delivery to End Users and Customers with the Bundled Product(s), \nas may be updated by NCI from time to time.\n\n 1.28. \"DISTRIBUTABLE SOURCE\" means the SDK Source Headers (as \ndefined below) and the source code for the Windows Manager, the 2D Graphics \nLibrary, and the UI Widget Library components of the NCI Source Code for \nEmbedded Graphics Usage.\n\n 1.29. \"SDK SOURCE HEADERS\" means the source header files \nlisted on Attachment A hereto.\n\n2. GRANT OF LICENSES AND RIGHTS\n\n 2.1. LICENSES.\n\n 2.1.1 LICENSE. Subject to all the terms and conditions of \nthis Agreement, NCI hereby grants and Licensee hereby accepts: \n\n (i) a paid-up, non-exclusive, perpetual, irrevocable (except as \nprovided in Section 13), non-transferable, non-assignable right and license \nto use the NCI Source Code and the Excluded Components solely in accordance \nwith the restrictions below and \n\n\n -4-\n\n\nsolely to (a) modify the NCI Source Code to create Bundled Product; (b) \ncompile the NCI Source Code to create Bundled Product; (c) maintain Bundled \nProduct and support Customers and End Users; (d) test the NCI Source Code; \nand (e) train the Designated EGU Employees and Designated DB Employees (as \ndefined below):\n\n (1) the NCI Source Code for Embedded Graphics Usage shall\n only be used on a secure source code management system, accessible only\n by Licensee's employees who require access to such NCI Source Code for\n Embedded Graphics Usage in order for Licensee to exercise the rights\n granted to Licensee under this Agreement pertaining to Embedded Graphics\n Usage (the \"Designated EGU Employees\"); and\n\n (2) the NCI Source Code for Directed Browsing and the\n Excluded Components shall only be used on a secure source code management\n system, accessible by no more than fifty (50) Licensee employees who\n require access to such NCI Source Code for Directed Browsing and Excluded\n Components in order for Licensee to exercise the rights granted to\n Licensee under this Agreement pertaining to Directed Browsing (the\n \"Designated DB Employees\"); provided, however, that, in the event that\n Licensee reasonably requires the right to designate more than fifty (50)\n Designated DB Employees, the parties will negotiate in good faith an\n increase in the foregoing number;\n\n (ii) a paid-up, non-exclusive, perpetual, irrevocable (except \nas provided in Section 13), non-transferable, non-assignable right and \nlicense to reproduce, and have reproduced, the NCI Product as incorporated \ninto the Bundled Product;\n\n (iii) a non-exclusive, perpetual, irrevocable (except as \nprovided in Section 13), non-transferable, non-assignable right and license, \nsubject to payment of the Royalties hereunder, to distribute (directly or \nindirectly through Distributors) and sublicense (via Distributor Agreements) \nthe NCI Product and Distributable Source, solely as incorporated in the \nBundled Product, to Customers and Distributors, and to distribute (directly \nor indirectly through Distributors) and sublicense the NCI Product and \nDistributable Source, solely as incorporated in the Bundled Product, to End \nUsers, in the Territory and solely for Directed Browsing or Embedded Graphics \nUsage. Licensee is expressly prohibited from (a) any marketing and\/or \ndistribution of the NCI Product and any portion thereof unless each copy of \nthe NCI Product is incorporated into Bundled Product (b) distributing the \nBundled Product outside the Territory, and (c) distributing the Bundled \nProduct for any use other than Directed Browsing or Embedded Graphics Usage. \nIn addition to any of the restrictions contained herein, any distribution \nand\/or sublicense of the Distributable Source by Licensee shall be subject to \nthe same terms, conditions, and restrictions that Licensee uses when Licensee \ndistributes and\/or licenses its own confidential, proprietary source code.\n\n Licensee shall not distribute the NCI Source Code (except the \nDistributable Source) in any way or on any media whatsoever. This license is \nnon-\n\n\n -5-\n\n\nexclusive. Subject to Licensee's rights pursuant to the immediately \nfollowing sentence, nothing in this Agreement shall be construed as limiting \nin any manner NCI's marketing and distribution activities or its appointment \nof other dealers, distributors, licensees or agents in the Territory. \nLicensee shall have the exclusive right to sublicense to the Specified \nParties the Derivative Works made by Licensee and NCI shall grant no license \nor sublicense directly or indirectly to such Specified Parties. In the event \nNCI includes Derivative Works into the NCI Product, the restriction in the \nimmediately foregoing sentence on NCI's right to license or sublicense such \nDerivative Works shall not apply. NCI will in no event use such Derivative \nWorks to build a competitive embedded real-time operating system.\n\n Notwithstanding anything else in this Agreement or the \nattachments and exhibits hereto, Licensee hereby agrees that it shall not \nmodify the NCI Source Code or the Distributable Source for use with any \ndevice that utilizes a television display (e.g. a display that is commonly \nreferred to as a television, or supports television formats such as NTSC, \nPAL, SECAM, HDTV formats, or other new formats derived therefrom) (\"TV \nDevice\") and Licensee will not distribute, and shall restrict Distributors \nand Customers from distributing, the Bundled Product in any way such that \nthey could be used in conjunction with any TV Device. The immediately \npreceding sentence shall not apply to Embedded Graphics Usage.\n\n Licensee shall not and shall not permit any Distributor or \nCustomer to distribute the NCI Product and\/or the Bundled Product in \nconjunction with or as part of a personal computer or any successor product \nto the multipurpose personal computer (including those that function as \nservers) or business network computer. Except for the Javascript component of \nthe Embedded Graphics Usage, the immediately preceding sentence shall not \napply to Embedded Graphics Usage. (For clarification, Licensee is permitted \nto distribute the Bundled Product incorporating Embedded Graphics Usage in \nconjunction with Licensee Product, IXWorks, on an ancillary processor which \ndoes not use the primary personal computer or network computer display.) \nLicensee shall have the right to use the Excluded Components internally \nsolely for development and internal training purposes. Licensee shall have \nno right to distribute the Excluded Components as part of the NCI Product.\n\n Notwithstanding anything to the contrary herein, except as \nsubject to an assignment pursuant to Section 14.3 hereof, Licensee shall have \nno right to distribute or sublicense (directly or indirectly) any Bundled \nProduct allowing Directed Browsing or incorporating any component of Directed \nBrowsing (other than Embedded Graphics Usage components in object code form \nonly), or distribute or sublicense the NCI Source Code or the Distributable \nSource in any way, to the following entities: [***] (or any other name under \nwhich such division operates).\n\n[***] CONFIDENTIAL TREATMENT REQUESTED\n\n -6-\n\n\n 2.1.2 DISTRIBUTORS AND CUSTOMERS. Subject to the terms and \nconditions of this Agreement, Licensee shall be entitled to appoint \nDistributors to distribute directly to Customers and End Users, and shall be \nentitled to appoint Customers to distribute directly to End Users, the \nBundled Product and End User Documentation in the Territory solely for \nDirected Browsing or Embedded Graphics Usage. Licensee shall not be entitled \nto grant to any Distributor or Customer the right to reproduce all or any \nportion of the NCI Product and End User Documentation or to sublicense or \ndistribute the Bundled Product and End User Documentation other then as \npermitted hereby. Distributors may appoint subdistributors and Customers \nonly through written agreements that meet the requirements of Section 3.3.2 \nand that otherwise ensure compliance with the terms of this Agreement and \nsuch subdistributor shall be deemed a Distributor for the purposes of this \nAgreement. \n\n 2.1.3 LICENSE RESTRICTIONS. Licensee agrees not to copy \n(except as expressly permitted herein), modify, translate, decompile, reverse \nengineer, disassemble, or otherwise determine or attempt to determine source \ncode (or the underlying ideas, algorithms, structure or organization) from \nany portion of the NCI Product that was provided to Licensee only in object \ncode form and not in source code form. Licensee shall restrict, by its \nagreements, all third parties, including, without limitation, Distributors \nand Customers, from copying (except as expressly permitted herein), \nmodifying, translating, decompiling, reverse engineering, disassembling, or \notherwise determining or attempting to determine source code (or the \nunderlying ideas, algorithms, structure or organization) from any portion of \nthe NCI Product, except to the extent such third party rightfully received \nDistributable Source.\n\n 2.1.4 LICENSES DEPENDENT ON BUNDLING. The licenses granted in \nSection 2.1.1 are conditional upon marketing and bundling each NCI Product as \nrequired therein only in conjunction with the specific Licensee Product and \nonly in the Territory. If Licensee fails to so bundle the NCI Product, or \nLicensee or any Distributor or Customer markets or distributes the NCI \nProduct or Bundled Product outside of the Territory, the licenses granted \nherein may be terminated in accordance with the provisions set forth in \nSection 13. For the purposes of this Agreement, the terms \"bundle\", \"bundled\" \nor \"bundling\" shall mean that the NCI Product is either (i) packaged together \nand licensed concurrently with Licensee Product as an integrated component of \na Bundled Product or (ii) licensed separately to existing licensees of the \nLicensee Product but solely for use with previously licensed units of \nLicensee Product (e.g., updates to existing Licensee Product to add Directed \nBrowsing or Embedded Graphics Usage capabilities).\n\n 2.1.5 THIRD PARTY LICENSE. If all or any part of the NCI \nProduct or Updates delivered by NCI to Licensee has been licensed to NCI by a \nthird party software developer or supplier then, notwithstanding anything to \nthe contrary contained in this Agreement, Licensee is granted a sublicense to \nthe third party software that vests in Licensee the same rights (to the \nextent licensed under Section 2.1.1 hereof), and subjects Licensee to the \nsame restrictions, as NCI, to the extent such restrictions are described in \nAttachment B as amended from time to time upon written notice to Licensee, \nprovided \n\n\n -7-\n\n\nthe terms of such amendments are commercially reasonable. All licenses \ngranted by NCI under this Agreement are subject to compliance by Licensee \nwith any applicable license restrictions, payment by Licensee to NCI of \nroyalties or other fees set forth on Attachment B hereto. In addition, NCI \nreserves the right to substitute any third party software in the NCI Product \nso long as the new third party software does not materially affect the \nfunctionality of the NCI Product. NCI will deliver to Licensee sixty (60) \ndays notice of such substituted third party software. A list of third party \ncode in the NCI Product or Updates and applicable royalties or other fees, \nrequired consents with respect thereto, and applicable restrictions are set \nforth in Attachment B hereto (as amended from time to time by NCI to reflect \nadditional third party code added to or deleted from the NCI Product or \nincluded in any Update).\n\n 2.2. EXPORT. Licensee shall comply fully with all then-current \nlaws, rules and regulations (as promulgated from time to time) relating to \nthe export of technical data, including, but not limited to the U.S. Foreign \nCorrupt Practices Act and any regulations of the United States Office of \nExport Administration and other applicable governmental agencies including \nany applicable foreign agencies. Licensee acknowledges that, if security \ntechnology is embedded in the NCI Product, Distributable Source or the \nBundled Product, export of such software from the U.S. or import to other \ndestination countries may not be legal or may be subject to license \nrequirements. As appropriate, Licensee shall conspicuously mark all \npackaging containing any NCI Product or Distributable Source or component \nthereof that is not exportable with a \"Not For Export\" notice. NCI agrees to \ncooperate in providing information reasonably requested by Licensee as \nnecessary to obtain any required licenses and approvals. \n\n Unless Licensee receives the prior, written consent of NCI, \nLicensee shall not allow access to any source code provided by NCI under this \nAgreement (including any attachment or addenda hereto) to any individual who \nis not a citizen or resident alien of the United States. Any breach of this \nprovision shall be deemed a material breach of this Agreement.\n\n 2.3. EUROPEAN COMMUNITY. In the event that any provision of this \nAgreement prohibits any activity of Licensee, any Distributor or any Customer \nin violation of Article 6 of the Council Directive of 14 May 1991 on the \nlegal protection of computer programs, and implementing legislation \nthereunder (the \"Directive\"), then, such activity shall be permitted solely \nto the extent, if any, that such activity is (i) subject to the jurisdiction \nof a Member State of the European Community and (ii) expressly permitted by \nthe Directive.\n\n 2.4. END USER DOCUMENTATION LICENSE. Subject to the terms and \nconditions of this Agreement, NCI hereby grants and Licensee hereby accepts a \nnon-exclusive, non-transferable, non-assignable right and license to use, \nmodify, and reproduce the End User Documentation, and to distribute to End \nUsers and Customers by sublicense the End User Documentation directly or \nindirectly through Distributors or Customers, solely in conjunction with the \nBundled Product(s).\n\n\n -8-\n\n\n3. MARKETING AND DISTRIBUTION\n\n 3.1. NON-EXCLUSIVITY. Licensee understands that NCI may enter into \narrangements similar to this Agreement with third parties.\n\n 3.2. PUBLIC ANNOUNCEMENTS AND PROMOTIONAL MATERIALS. NCI and \nLicensee shall cooperate with each other so that each party may issue a press \nrelease concerning this Agreement within thirty (30) calendar days following \nthe Effective Date; provided, that each party approve any such press release \nprior to its release. Such press release shall include a quote attributable \nto an executive officer of each party. NCI shall cooperate with Licensee in \nits development of the initial marketing and sales materials used to promote \nthe distribution of the Bundled Product.\n\n 3.3. TERMS RELATING TO DISTRIBUTION.\n\n 3.3.1 GOVERNMENT AGENCY RESTRICTIONS. Licensee agrees to \ncomply with and shall require its Distributors and Customers to comply with \nall applicable laws, rules and regulations to preclude the acquisition of \nunlimited rights to technical data, software, and End User Documentation \nprovided with the NCI Product and Distributable Source to a governmental \nagency, and ensure the inclusion of the appropriate \"Restricted Rights\" or \n\"Limited Rights\" notices required by the U.S. Government agencies or other \napplicable agencies.\n\n 3.3.2 DISTRIBUTOR AGREEMENTS. Prior to the distribution of \nany Bundled Product, Distributable Source, or End User Documentation to a \nDistributor or Customer, Licensee shall enter into (or shall have already \nentered into) an enforceable written agreement with such Distributor or \nCustomer (\"Distributor Agreement\") that (i) is sufficient to ensure that such \nDistributor or Customer is required to comply with the relevant terms of this \nAgreement, (ii) requires each Distributor to enter into a Distributor \nAgreement with any subdistributor prior to granting such subdistributor any \nrights with respect to the Bundled Product. Licensee shall use commercially \nreasonable efforts include in any Distributor Agreements with a Distributor \nentered into on or after the Effective Date a provision that expressly names \nNCI as an intended third party beneficiary with the right to rely on and to \ndirectly enforce the terms thereof. Without limiting the generality of the \nforegoing, each Distributor Agreement shall include terms no less restrictive \nthan those contained in Sections 2.1.2, 2.1.3, 2.1.4, 2.1.5, 2.2, 2.3, 2.4, \n3.3, 3.4, 4.3, 4.4, 7.1, 7.2.1 and 8.1 of this Agreement. Prior to enforcing \nits rights under a Distributor Agreement as a third party beneficiary, NCI \nwill provide fifteen (15) days notice to Licensee of the Distributor's \nnon-compliance and NCI's intended action. If such non-compliance by the \nDistributor is not cured within fifteen (15) days of NCI's notice to \nLicensee, NCI shall be entitled to enforce its rights directly against the \nDistributor. \n\n 3.3.3 SUGGESTED MODIFICATIONS. Licensee agrees to keep NCI \ninformed as to any problems encountered with NCI Product and Distributable \nSource and any resolutions arrived at for those problems, and to communicate \npromptly to NCI any and \n\n\n -9-\n\n\nall modifications, or improvements of the NCI Product or Distributable Source \nsuggested by any End User, Distributor, Customer, employee or agent, to the \nextent that Licensee is permitted under the law and is not required to pay \nsuch third party(ies) any payment of consideration with respect thereto. \nLicensee further agrees that NCI shall have any and all right, title and \ninterest in and to any such submitted suggested modifications or improvements \nto the NCI Product and Distributable Source.\n\n 3.3.4 GENERAL OBLIGATIONS AND RESTRICTIONS REGARDING \nDISTRIBUTION. Licensee shall use its best efforts, which shall in no event \nrequire Licensee to make any unreasonable efforts, to successfully market and \ndistribute the Bundled Product in the Territory during the term of this \nAgreement. Licensee shall not develop during the term hereof any product \nthat, in NCI's reasonable discretion, competes with the NCI Product as it \nexists on the date NCI delivers the Deliverables to Licensee. The parties \nshall participate in mutually agreeable joint marketing programs for the \nBundled Product.\n\n 3.4. ENFORCEMENT OF ANCILLARY AGREEMENTS. Licensee shall use best \nefforts, which shall in no event require Licensee to make any unreasonable \nefforts, to enforce each Distributor Agreement, and shall require each \nDistributor and Customer to, use commercially reasonable efforts to enforce \neach Distributor Agreement to which it is a party, in each case, with at \nleast the same degree of diligence used in enforcing similar agreements \ngoverning others, which in any event shall be that sufficient to adequately \nenforce such agreements. Licensee shall, and shall require each Distributor \nand Customer to, use commercially reasonable efforts to protect NCI's \ncopyright and trademark rights, and Licensee shall notify NCI, and shall \nrequire each Distributor and Customer to notify Licensee, of any breach of a \nmaterial obligation under a Distributor Agreement affecting the NCI Product, \nDistributable Source or End User Documentation. In addition, Licensee will \nreasonably cooperate with NCI in any legal action to prevent or stop \nunauthorized use, reproduction or distribution of the Bundled Product or End \nUser Documentation, and NCI shall pay all of Licensee's reasonable \nout-of-pocket expenses with respect thereto.\n\n 3.5 INVENTIONS. All Inventions are and shall remain the sole and \nexclusive property of Licensee. Licensee agrees to disclose such Inventions \nto NCI and shall grant to NCI a royalty-free, perpetual, paid-up, worldwide, \nnon-exclusive, sublicenseable (except with respect to the Specified Parties) \nlicense to such Inventions, under all of Licensee's intellectual property \nrights, including, without limitation, patent rights, copyrights, and trade \nsecret rights, to use, modify, distribute, make, have made, and sell NCI \nproducts. Any such disclosure shall be considered Confidential Information \nunder Section 8. \n\n4. FEES AND PAYMENT\n\n 4.1. ROYALTY, ENGINEERING AND SERVICE FEES.\n\n 4.1.1 In accordance with the terms set forth in Attachment B \nhereto, Licensee shall pay to NCI the non-refundable, noncancelable Prepaid \nLicense Fee, License Fee and Engineering Fees. In addition, Licensee shall \npay to NCI, in accordance \n\n\n -10-\n\n\nwith the terms of this Agreement, a Royalty in the amount set forth in \nAttachment B. Licensee shall pay NCI any Royalties accrued hereunder during \neach quarter within twenty-eight (28) days following the end of such quarter \nand each such payment shall be accompanied by a quarterly report as described \nin Section 4.3 below. For the purposes of this Agreement, the quarters shall \nend on the last day of each of the following months January, April, July, and \nOctober.\n\n 4.1.2 SERVICE FEE. Licensee shall pay to NCI the \nnon-refundable Service Fee in the amounts and according to the terms and \nconditions set forth in Attachment B hereto, in consideration of the \nmaintenance and support services described in Attachment C hereto.\n\n 4.2. PAYMENT AND TAXES.\n\n 4.2.1 PAYMENTS. All payments shall be made in United States \ndollars, at NCI's option, (i) at NCI's address as indicated in this Agreement \nor at such other address as NCI may from time to time indicate by proper \nnotice hereunder or (ii) by wire transfer to a bank and account number \ndesignated by NCI. Interest shall be payable at the rate of one percent (1%) \nper month or at the maximum rate permitted by law, whichever is less, on all \noverdue and unpaid invoices until paid in full.\n\n 4.2.2 TAXES. All fees are exclusive of all taxes, duties or \nlevies, however designated or computed. Licensee shall be responsible for \nand pay all taxes based upon the transfer, use, distribution of the NCI \nProduct, the Bundled Product, and the End User Documentation, or the program \nstorage media, or upon payments due under this Agreement, including, but not \nlimited to, sales, use, or value-added taxes, duties, withholding taxes and \nother assessments now or hereafter imposed on or in connection with this \nAgreement or with any sublicense granted hereunder, exclusive of taxes based \nupon NCI's net income, and the amounts invoiced to Licensee with respect to \nthe Prepaid License Fee, License Fee, Engineering Fees, Royalties and Service \nFees shall be increased to the extent necessary to ensure that such fees are \nreceived by NCI net of any such tax liability. The amount of the Prepaid \nLicense Fee, Licensee Fee, Engineering Fees, Royalties and Service Fees as \nset forth in ATTACHMENT A hereto represent the amounts to be invoiced to, and \npaid by, Licensee under this Agreement. In lieu thereof, Licensee shall \nprovide to NCI a tax or other levy exemption certificate acceptable to the \ntaxing or other levying authority.\n\n 4.3. QUARTERLY REPORTS. Licensee shall maintain accurate records of \nEnd Users which Licensee licenses directly and Customers, and Distributors \nshall maintain accurate records of Customers reported by zip code (not \nincluding names and addresses), the specific platforms, revision numbers of \neach Bundled Product and\/or Update distributed to each Customer (and End \nUser, as applicable) and any further information that may be reasonably \nnecessary for NCI to ensure compliance with this Agreement. Licensee shall \nreport to NCI within twenty-eight (28) calendar days after the end of each \nquarter, the type of Bundled Product and\/or Updates distributed directly or \nindirectly to each \n\n\n -11-\n\n\nCustomer (and End User, as applicable) during such quarter, organized in a \nmanner to permit a separate review of Bundled Product and Updates, the postal \ncodes of each such Customer (and End User, as applicable), the number of \ncopies and type of Bundled Product (by platform) used internally by Licensee \nfor the first time during such quarter, and such other information as NCI may \nfrom time to time reasonably request.\n\n 4.4. AUDIT OF RECORDS. Licensee and each Distributor and Customer \nshall keep and maintain full, true, and accurate records containing all data \nreasonably required for verification of amounts to be paid. NCI shall have \nthe right, during normal business hours upon at least fifteen (15) business \ndays prior notice and not more often than once per calendar year, to audit \nand analyze the relevant records of Licensee to verify compliance with the \nprovisions of this Agreement. The audit shall be conducted by an independent \nauditor who is subject to written confidentiality obligations, at NCI's \nexpense unless there is inadequate record keeping or the results of such \naudit establish that inaccuracies in the quarterly reports have resulted in \nunderpayment to NCI of more than five percent (5%) of the amount actually due \nin any quarter, in which case Licensee shall bear the expenses of the audit. \nLicensee agrees to promptly pay to NCI the amount of any underpayment \ndetermined by any such audit. NCI agrees to promptly pay to Licensee the \namount of any overpayment determined by any such audit.\n\n5. DELIVERABLES, UPDATES, AND TECHNICAL SUPPORT\n\n 5.1. DELIVERABLES. NCI will make reasonable efforts to provide a \npreliminary version of the NCI Source Code (which may or may not exclude the \nExcluded Components and any third party Optional Products\/Modules) to \nLicensee by January 10, 1998. NCI shall use best efforts, which shall in no \nevent require NCI to make any unreasonable efforts, to provide Licensee with \nthe deliverables set forth on Attachment A hereto, if any, (the \n\"DELIVERABLES\") substantially in accordance with the schedule set forth \ntherein. All deliveries under this Agreement shall be free on board \n(\"F.O.B.\") NCI, Redwood Shores, California. Title to all goods delivered \nfrom NCI to Licensee shall pass at, and Licensee shall be responsible for all \nshipping charges from, the F.O.B. location. Shipment of Deliverables is \nauthorized by Licensee upon execution of this Agreement or supplement hereto.\n\n 5.2. UPDATES AND TECHNICAL SUPPORT. In consideration of the payment \nby Licensee to NCI of the License Fee and Prepaid License Fee pursuant to \nSection 4.1.1, NCI shall provide to Licensee (i) maintenance and technical \nsupport services described in Attachment C hereto, including, without \nlimitation, all Minor Updates during the first fifteen (15) months of this \nAgreement, and (ii) any Major Updates to the NCI Product during the first \ntwenty-four (24) months of this Agreement. For so long as NCI shall continue \nto offer such maintenance and support services to its other general licensees \nof the NCI Product, in consideration of the payment by Licensee to NCI of \nService Fees pursuant to Section 4.1.2, NCI shall provide to Licensee, for \nthe sixteenth month of this Agreement through the end of this Agreement, \nmaintenance and technical support services described in Attachment C hereto, \nincluding, without limitation, all Minor \n\n\n -12-\n\n\nUpdates. Any provision by NCI of Major Updates after the end of the first \ntwenty-four (24) months of the term of this Agreement shall be discussed in \ngood faith by the parties; provided, however, that in no case will the fee \npayable by Licensee for each Major Update exceed $[***]*. NCI will not \nbe responsible for providing Minor Updates to End Users, Distributors or \nCustomers and Licensee will be responsible for providing Minor Updates to End \nUsers which Licensee licenses directly, and to Distributors, and Customers. \nIf requested in writing by NCI, Licensee will distribute each Minor Update to \nEnd Users which Licensee licenses directly, and to Distributors, and \nCustomers. To facilitate the provision by NCI of maintenance and technical \nsupport services hereunder, Licensee shall deliver to NCI, free of charge, \nthe object code (and source code, as necessary to resolve Program Errors) \nversion of three (3) prototype units of the Licensee Product as may be \nnecessary to facilitate debugging and reproduction of any Program Error that \nmay be reported by Licensee during the term of this Agreement (\"Prototypes\"). \nAny source code of the Prototypes that Licensee delivers pursuant to this \nSection shall be deemed Confidential Information. NCI will return such \nsource code and all copies thereof after NCI has resolved the Program Errors. \nNCI shall have the right to use the Prototypes solely for maintenance and \ntechnical support purposes with respect to NCI's obligations hereunder \nconcerning the Bundled Product, and not for distribution to third parties. \nSuch Prototypes are provided on an \"AS IS\" basis, without any warranty, are \nthe Confidential Information of Licensee, and may not be reverse engineered, \nreverse compiled, or reverse assembled. Delivery of the Prototypes shall be \nmade prior to the release of the Bundled Product for beta testing.\n\n6. TRADEMARKS AND TRADE NAMES\n\n 6.1. LICENSE TO USE NCI TRADEMARKS. Licensee shall use, and is \nhereby granted a non-transferable, non-exclusive, non-assignable and \nrestricted license, during the term of this Agreement, to use (with no right \nto sublicense), the NCI Trademarks (a) on any Bundled Product licensed or \nsold, and (b) in any advertising, packaging, marketing, technical or other \nmaterials related to such Bundled Product. When used in accordance with the \nterms of the preceding sentence, the NCI Trademarks, shall be of a size, and \nshall be positioned prominently. Such use shall be in accordance with the \nNCI's then-current Corporate Signature Kit attached hereto to Attachment A, \nand updated from time to time, by NCI. All Bundled Product shall comply with \nthe Branding Requirements as set forth in Attachment D, except that the \nBranding Requirements shall not apply to the Embedded Graphics Usage. After \ntranslation of the NCI Trademarks by Licensee, Licensee will consult with NCI \nso that NCI can help ensure uniformity with their use by NCI or third \nparties. Licensee shall clearly indicate NCI's ownership of the NCI \nTrademarks. All such usage shall inure to NCI's benefit. Licensee agrees \nnot to register any NCI Trademarks without NCI's express prior written \nconsent and to the extent Licensee obtains an agreement with its \nDistributors and Customers not to register any of Licensee's trademarks, \nLicensee agrees to obtain the agreement of its Distributors, and Customers \nnot to register any NCI Trademarks without NCI's express prior written \nconsent. Licensee shall not contest NCI's ownership of, or rights in, the \nNCI Trademarks and to the extent Licensee obtains an agreement with its \nDistributors and Customers not \n\n--------------\n* Confidential Treatment Requested. Confidential portion has been filed with\n the Securities and Exchange Commission.\n\n -13-\n\n\n\n\nto contest, Licensee's ownership of, or rights in, Licensee's trademarks, \nLicensee agrees to obtain the agreement of its Distributors, and Customers \nnot to contest, NCI's ownership of, or rights in, NCI's Trademarks. Prior to \nthe release of the Licensee Product for beta testing, and at any time upon \nthe reasonable written request of NCI, Licensee will provide NCI with copies \nof the Licensee Product and any related goods and marketing materials bearing \nthe NCI Trademarks solely for NCI's internal use so that NCI can verify that \n(i) the quality of the Licensee Product is acceptable to NCI and (ii) the \nquality of Licensee's use of the NCI Trademarks is in accordance with the \nrequirements of this Agreement, the then-current NCI Corporate Signature Kit, \nthe Branding Requirements and is otherwise comparable to that of NCI's use \nthereof. In the event that NCI notifies Licensee that Licensee has failed to \nmeet the requirements of (i) above, Licensee shall immediately cease \ndistributing any affected Licensee Products, goods or marketing materials \nincorporating, displaying or otherwise bearing the NCI Trademarks; provided, \nhowever, the foregoing shall not relieve Licensee of any of its obligations \nwith respect to the Branding Requirements. In the event that NCI notifies \nLicensee that Licensee has failed to meet the requirements of (i) or (ii) \nabove with respect to any Bundled Product, goods or marketing materials \nincorporating, displaying or otherwise bearing the NCI Trademarks, Licensee \nshall suspend distribution of such Bundled Product, goods or marketing \nmaterials until Licensee has satisfied NCI that the foregoing requirements \nhave been met. \n\n 6.2. LICENSE TO USE LICENSEE TRADEMARKS. NCI may use, and is hereby \ngranted the non-exclusive, non-assignable and restricted license, during the \nterm of this Agreement, to use (with no right to sublicense), the Licensee \nTrademarks in any advertising, packaging, marketing technical or other \nmaterials related to the NCI Product and Distributable Source. Such use \nshall be in accordance with any written instructions delivered by Licensee to \nNCI from time to time during the term of this Agreement, and any specific use \nshall be subject to the prior written consent of Licensee. NCI will clearly \nindicate Licensee's ownership of the Licensee Trademarks.\n\n7. PROPRIETARY RIGHTS\n\n 7.1. PROPRIETARY RIGHTS. Title to and ownership of all copies of \nthe NCI Product, the NCI Source Code, the Excluded Components, the Updates, \nthe Distributable Source, and End User Documentation (and any portion \nthereof) whether in machine-readable or printed or displayed form, and \nincluding, without limitation, Derivative Works, compilations, or collective \nworks thereof and all related technical know-how and all proprietary rights \ncontained therein (including without limitation rights in patents, \ntrademarks, copyrights, and trade secrets applicable thereto), are and shall \nremain the exclusive property of NCI or its licensors. Within thirty (30) \ndays of the release of each new version of the Bundled Product, Licensee \nshall deliver to NCI a written and digital (in a mutually agreeable format) \ncopy of all Derivative Works of the NCI Source Code, the Distributable Source \nand the End User Documentation. Licensee hereby assigns to NCI all of its \nright, title and interest in and to the Derivative Works made by Licensee. \nThe parties hereby agree to execute any assignments necessary to effectuate \nthe foregoing \n\n -14-\n\n\nownership provision. Neither Licensee, any Distributor, nor any Customer \nshall take any action to jeopardize, limit or interfere in any manner with \nNCI's ownership of and rights with respect to the NCI Product, Distributable \nSource and End User Documentation. Licensee shall have only those rights in \nor to the NCI Product, Distributable Source and End User Documentation \ngranted to it pursuant to this Agreement.\n\n 7.2. PROPRIETARY NOTICES.\n\n 7.2.1 NO ALTERATION OF NOTICES. Neither Licensee, the \nDistributors, nor the Customers, or any of their respective employees or \nagents, shall remove or alter any trademark, trade name, copyright, or other \nproprietary notices, legends, symbols, or labels appearing on or in copies of \nthe NCI Product, Distributable Source and End User Documentation and other \nmaterials, including, without limitation, any documentation or user manuals, \ndelivered to Licensee by NCI and Licensee shall use the same notices, \nlegends, symbols, or labels in and on copies of such materials, Distributable \nSource NCI Product made pursuant to Section 2.1 as are contained in and on \nsuch NCI Product and such materials.\n\n 7.2.2 NOTICE. Each portion of the NCI Product, Distributable \nSource and End User Documentation reproduced by Licensee shall include the \nintellectual property notice or notices appearing in or on the corresponding \nportion of such materials as delivered by NCI hereunder. Licensee shall \nensure that all copies of the NCI Product and Distributable Source, \nincluding, without limitation, copies of the Bundled Product and End User \nDocumentation, made pursuant to this Agreement conspicuously display a notice \nsubstantially in the following form:\n\n -C- 1996-1998 (or other appropriate year(s)), Network\n Computer, Inc. All Rights Reserved. Portions -C- 1994-1997 \n (or other appropriate year(s)), Netscape Communications \n Corporation. All Rights Reserved.\n\n If Licensee is unsure of the appropriate year(s), it shall \nconsult NCI to obtain the correct designation. Such notice shall be on \nlabels on all media containing the NCI Product and Distributable Source, \nincluding, without limitation, the Bundled Product and the End User \nDocumentation. The immediately preceding sentence shall not limit Licensee's \nright to display Licensee's copyright notices and other proprietary notices \non the Bundled Product and End User Documentation. If the copyright symbol \n\"-C-\" cannot technically be reproduced, Licensee shall use the word \n\"Copyright\" in its place.\n\n8. CONFIDENTIAL INFORMATION AND DISCLOSURE\n\n 8.1. CONFIDENTIAL INFORMATION. Each party agrees to maintain all \nConfidential Information in confidence to the same extent that it protects \nits own similar Confidential Information and to use such Confidential \nInformation only as permitted under this Agreement. For purposes of this \nAgreement \"CONFIDENTIAL INFORMATION\" shall mean information including, \nwithout limitation, computer programs, code, algorithms, names and expertise \nof employees and consultants, know-how, formulas, processes, ideas, \n\n\n -15-\n\n\ninventions (whether patentable or not), schematics and other technical, \nbusiness, financial and product development plans, forecasts, strategies and \ninformation marked \"Confidential\" or, if disclosed verbally, identified as \nconfidential. Each party agrees to take all reasonable precautions to \nprevent any unauthorized disclosure or use of Confidential Information \nincluding, without limitations disclosing Confidential Information only to \nits employees (a) with a need to know to further permitted uses of such \ninformation, (b) who are parties to appropriate agreements sufficient to \ncomply with this Section 8 and (c) who are informed of the \nnondisclosure\/non-use obligations imposed by this Section 8 and both parties \nshall take appropriate steps to implement and enforce such \nnon-disclosure\/non-use obligations. The foregoing restrictions on disclosure \nand use shall survive for three (3) years following termination of this \nAgreement but shall not apply with respect to any Confidential Information \nthat (i) was or becomes publicly known through no fault of the receiving \nparty; (ii) was rightfully known or becomes rightfully known to the receiving \nparty without confidential or proprietary restriction from a source other \nthan the disclosing party; (iii) the receiving party can document was \nindependently developed by the receiving party without the participation of \nindividuals who have had access to the Confidential Information; (iv) is \napproved by the disclosing party for disclosure without restriction in a \nwritten document which is signed by a duly authorized officer of such \ndisclosing party; or (v) the receiving party is legally compelled to \ndisclose; provided, however, that prior to any such compelled disclosure, the \nreceiving party will (a) assert the privileged and confidential nature of the \nConfidential Information against the third party seeking disclosure and (b) \ncooperate fully with the disclosing party in protecting against any such \ndisclosure and\/or obtaining a protective order narrowing the scope of such \ndisclosure and\/or use of the Confidential Information. In the event that \nsuch protection against disclosure is not obtained, the receiving party will \nbe entitled to disclose the Confidential Information, but only as and to the \nextent necessary to legally comply with such compelled disclosure.\n\n 8.2. CONFIDENTIALITY OF AGREEMENT. Unless required by law, and \nexcept to assert its rights hereunder or for disclosures to its own employees \non a \"need to know\" basis, both parties agree not to disclose to any third \nparty the terms of this Agreement or matters relating hereto without the \nprior written consent of the other party which consent shall not be \nunreasonably withheld\n\n 8.3 CONFIDENTIALITY OF SOURCE CODE. NCI Source Code and any \nDerivative Works thereof shall be Confidential Information under the \nforegoing terms of this Agreement and shall in addition be subject to the \nterms of this Section 8.3. \n \n 8.3.1 Licensee will limit access to the NCI Source Code solely \nto Licensee's employees and on-site independent contractors (\"Contractors\") \nwith a need to know for purposes of this Agreement. \n\n 8.3.2 Notwithstanding any other provision of this Agreement, \nthis provision shall survive any expiration or termination of this Agreement \nand shall remain in full force and effect despite any such expiration or \ntermination.\n\n\n -16-\n\n\n 8.3.3 The receiving party shall have in place a written \nconfidentiality agreement with each of its employees and Contractors who are \ngiven access to the NCI Source Code, which requires the employee or \nContractor to comply with the requirements of this Agreement. Prior to \ndisclosing any NCI Source Code to its employees or Contractors as permitted \nherein, Licensee shall ensure that all NCI Source Code is marked \"NCI \nConfidential.\"\n\n 8.3.4 Licensee shall use its best efforts to protect the \nconfidentiality of the NCI Source Code, including methods of limiting access. \nLicensee will use NCI Source Code in a building with restricted access or in \na locked room and only on computer systems with security protection which is \nadequate to prevent unauthorized parties from accessing such NCI Source Code. \nLicensee shall be liable for the conduct of its employees, agents, \nrepresentatives and Contractors who in any way breach this section of this \nAgreement.\n\n9. WARRANTIES\n\n 9.1. LIMITED WARRANTY. Subject to the limitations set forth in this \nAgreement, NCI warrants only to Licensee that the NCI Source Code, when \nproperly compiled installed, and used, will substantially conform to the \nfunctional specifications published by NCI for the Reference Implementation \nin effect when the NCI Product is shipped by NCI to Licensee. NCI's warranty \nand obligation shall extend for a period of ninety (90) days (\"Warranty \nPeriod\") from the date NCI first delivers the NCI Source Code to Licensee. \nAll warranty claims not made in writing or not received by NCI within the \ntime period specified above shall be deemed waived. NCI's warranty and \nobligation is solely for the benefit of Licensee, who has no authority to \nextend this warranty to any other person or entity. NCI MAKES NO WARRANTY \nTHAT ALL ERRORS OR FAILURES WILL BE CORRECTED.\n\n 9.2. EXCLUSIVE WARRANTY. THE EXPRESS WARRANTY SET FORTH IN SECTION \n9.1 CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE NCI PRODUCT AND \nDISTRIBUTABLE SOURCE. NCI MAKES NO OTHER REPRESENTATION OR WARRANTY OR \nCONDITION OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY \nOPERATION OF LAW) WITH RESPECT TO THE NCI PRODUCT AND DISTRIBUTABLE SOURCE. \nNCI EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR \nFITNESS FOR A PARTICULAR PURPOSE. NCI DOES NOT WARRANT THAT THE NCI PRODUCT \nOR DISTRIBUTABLE SOURCE IS ERROR-FREE OR THAT OPERATION OF THE NCI PRODUCT OR \nDISTRIBUTABLE SOURCE WILL BE SECURE OR UNINTERRUPTED AND HEREBY DISCLAIMS ANY \nAND ALL LIABILITY ON ACCOUNT THEREOF. NCI EXPRESSLY DISCLAIMS ANY AND ALL \nIMPLIED WARRANTIES OF NON-INFRINGEMENT; THE SOLE REMEDY FOR INFRINGEMENT IS \nPROVIDED IN \n\n\n -17-\n\n\nSECTION 10. This subsection shall be enforceable to the extent allowed by \napplicable law.\n\n 9.3. DEFECTS NOT COVERED BY WARRANTIES. NCI shall have no \nobligations under the warranty provisions set forth in Section 9.1 if any \nnonconformance is caused by: (a) the incorporation, attachment or other \nengagement of any attachment, feature, program, or device, other than by NCI, \nto the NCI Product, or any part thereof; or (b) accident; transportation; \nneglect or misuse; alteration, modification, or enhancement of the NCI \nProduct or Distributable Source other than by NCI; or (c) failure to provide \na suitable installation environment; or (d) use of supplies or materials not \nmeeting specifications; or (e) use of the NCI Product or Distributable Source \nfor other than the specific purpose for which it is designed; or (f) use of \nthe NCI Product on any systems other than the Reference Hardware; or (g) \nLicensee's use of defective media (other than defective media provided by NCI \nto Licensee) or defective duplication of the NCI Product; or (h) Licensee's \nfailure to incorporate any Update previously released by NCI which corrects \nsuch nonconformance.\n\n 9.4. EXCLUSIVE REMEDY. In the event that Licensee finds what it \nbelieves to be Program Errors in or a failure of the NCI Product, NCI Source \nCode and Distributable Source that prevents such code from substantially \nconforming to functional specifications published by NCI for the Reference \nImplementation in effect when the NCI Product is shipped by NCI to Licensee, \nand provides NCI with a written report thereof during the Warranty Period, \nNCI will use reasonable efforts to correct promptly, at no charge to \nLicensee, any such Program Errors or failures. This is Licensee's sole and \nexclusive remedy, and NCI's sole obligation, for any express or implied \nwarranties hereunder.\n\n 9.5. LICENSEE WARRANTY. Licensee hereby warrants that Licensee has \nthe authority to enter into and be bound by the terms of this Agreement.\n\n10. INDEMNIFICATION\n\n 10.1. NCI agrees to indemnify, hold harmless and, at Licensee's \nrequest, defend Licensee from and against any and all claims, liabilities, \nlosses, damages, expenses and costs (including reasonable attorneys' fees and \ncosts) arising out of, in connection with or relating to a claim that the NCI \nProduct, NCI Source Code or Distributable Source infringes any valid patent, \ncopyright, trademark or trade secret to the extent that such infringement \nexists in the Reference Implementation; provided, that Licensee (a) promptly \n(within twenty (20) days) notifies NCI in writing of any such claim and NCI \nhas sole control of the defense and all related settlement negotiations, and \n(b) cooperates with NCI, at NCI's expense, in defending or settling such \nclaim.\n\n 10.2. Should the NCI Product, NCI Source Code or Distributable Source \nbecome, or be likely to become in NCI's opinion, the subject of infringement \nof such copyright, patent, trademark or trade secret, NCI may (i) procure for \nLicensee the right to continue using the same or (ii) replace or modify it to \nmake it non-infringing. Notwithstanding any characterization of any fees \npaid by Licensee hereunder as \"non-\n\n -18-\n\n\nrefundable\", in the event that NCI determines that neither (i) or (ii) above \nare commercially reasonable, NCI may terminate this Agreement upon thirty \n(30) days prior written notice, and refund to Licensee all amounts paid \nhereunder reduced on a straight-line pro-rata basis over five (5) years from \nthe Effective Date. NCI shall have no liability for and Licensee shall \nindemnify and hold NCI harmless from and against any claim based upon: (a) \nthe use of a version of the NCI Product, NCI Source Code or Distributable \nSource other than the then current, unaltered version of the NCI Product, NCI \nSource Code or Distributable Source (as applicable), except to the extent the \nReference Implementation would also be infringing; (b) use, operation or \ncombination of the NCI Product, NCI Source Code or Distributable Source with \nnon-NCI programs, data, method, equipment or documentation, if such \ninfringement would have been avoided but for such use, operation or \ncombination; (c) Licensee's, its Distributors', its Customers' or agent's \nactivities after NCI has notified Licensee that NCI believes such activities \nmay result in such infringement; (d) compliance with Licensee's designs, \nspecifications or instructions; (e) any modifications or marking of the NCI \nProduct, NCI Source Code or Distributable Source not specifically authorized \nin writing by NCI; (f) any Derivative Works made by Licensee; (g) Licensee's \nuse of any trademarks other than the NCI Trademarks pursuant to Section 6 \nhereof; or (h) third party software except for software developed by \nNetscape. The foregoing states the entire liability of NCI and the exclusive \nremedy of Licensee with respect to infringement of any intellectual property \nrights.\n\n 10.3. GENERAL INDEMNIFICATION BY LICENSEE. Licensee agrees to \nindemnify, hold harmless and, at NCI's request, defend NCI from and against \nany and all claims, liabilities, losses, damages, expenses and costs \n(including reasonable attorneys' fees and costs) arising out of, in \nconnection with or relating to (i) Licensee's or Distributors' failure to \ninclude in each Distributor Agreement the contractual terms required to be \nincluded therein pursuant to Section 3.3.2 or 3.3.3 or (ii) except to the \nextent that NCI is responsible for a claim under Section 10.1 and 10.2, \nLicensee's, a Distributor's or a Customer's use, distribution or reproduction \nof the NCI Product, Distributable Source, End User Documentation and\/or \nLicensee Products, including, without limitation, any claims, liabilities, \nlosses, damages, expenses and costs arising out of, in connection with or \nrelating to defective reproduction of or the use of defective media in the \nreproduction of the NCI Product or Distributable Source, breach of warranty \nor support obligations or infringement or misappropriation of intellectual \nproperty rights.\n\n11. LIMITATION OF LIABILITY\n\n TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER \nPARTY OR ITS RESPECTIVE LICENSORS OR SUPPLIERS BE LIABLE UNDER ANY CONTRACT, \nNEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY \nLOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF \nBUSINESS, OR (II) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR \nTECHNOLOGY, OR (III) ANY CLAIM AGAINST THE OTHER PARTY HERETO BY ANY THIRD \nPARTY, EXCEPT AS PROVIDED IN THE SECTION ENTITLED \n\n\n -19-\n\n\n\"INDEMNIFICATION\" IN THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE FOR ANY \nINDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EXCEPT \nTO THE EXTENT SUCH DAMAGES ARISE FROM A BREACH OF SECTIONS 2.1 OR SECTION 8, \nEVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND \nNOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN \nNO EVENT WILL NCI OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR (a) ANY \nREPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY LICENSEE, ANY \nDISTRIBUTOR, ANY CUSTOMER OR ANY OF THEIR RESPECTIVE AGENTS; (b) FAILURE OF \nTHE NCI PRODUCT TO PROVIDE DATA SECURITY; OR (c) ANY USE OF THE NCI PRODUCT \nOR DISTRIBUTABLE SOURCE OR THE RESULTS OR INFORMATION OBTAINED OR DECISIONS \nMADE BY END USERS OF THE NCI PRODUCT OR DISTRIBUTABLE SOURCE. THE REMEDIES \nPROVIDED IN THIS AGREEMENT ARE THE PARTY'S SOLE AND EXCLUSIVE REMEDIES. \nNOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, EACH PARTY'S \nENTIRE LIABILITY TO THE OTHER FOR DAMAGES CONCERNING PERFORMANCE OR \nNON-PERFORMANCE BY EITHER PARTY (EXCEPT FOR LICENSEE'S FAILURE TO MAKE ANY \nPAYMENT OWED TO NCI HEREUNDER) OR IN ANY WAY RELATED TO THE SUBJECT MATTER OF \nTHIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED \nIN CONTRACT OR IN TORT, SHALL NOT EXCEED THE LESSER OF (i) THE TOTAL FEES \nPAID HEREUNDER OR (ii) FIVE HUNDRED THOUSAND DOLLARS (US $500,000).\n\n12. TERM OF AGREEMENT\n\n This Agreement shall commence on the Effective Date and shall continue \nuntil terminated as provided in Section 13. \n\n13. DEFAULT AND TERMINATION\n\n 13.1. TERMINATION FOR DEFAULT. In the event (i) either party \nmaterially breaches any of its obligations under this Agreement and fails to \ncure such material breach within thirty (30) days following written notice of \nsuch breach from the non-defaulting party or (ii) either party becomes \nBankrupt; the nondefaulting party, at its option shall have the right to \nterminate this Agreement by written notice. \"Bankrupt\" means that a party \nceases to do business in the normal course, becomes or is declared insolvent \nor bankrupt, is the subject of any proceeding relating to its liquidation or \ninsolvency that is not dismissed within ninety (90) calendar days of \ncommencement, or makes an assignment for the benefit of its creditors.\n\n 13.2 TERMINATION OF LICENSES. In the event that (i) Licensee \nmaterially breaches Section 8 or 14.3 or (ii) Licensee breaches Section 8 in \na manner that, by its nature, such breach is not subject to cure; NCI may \nimmediately terminate this Agreement and\/or the \n\n\n -20-\n\n\nlicenses granted by NCI to Licensee in Section 2.1 hereof. In the event that \nLicensee (x) fails to cure a material breach of Section 2.1 or Section 4 and \nfails to cure such material breach within thirty (30) days following written \nnotice of such breach from NCI or (y) becomes Bankrupt; NCI may terminate \nthis Agreement and\/or licenses granted by NCI to Licensee in Section 2.1 \nhereof by written notice.\n\n 13.3. EFFECT ON RIGHTS.\n\n 13.3.1 Neither termination of this Agreement by either party \nnor termination of the licenses granted in this Agreement by NCI shall act as \na waiver of any breach of this Agreement or as a release of either party from \nany liability for breach of such party's obligations under this Agreement.\n\n 13.3.2 Except where otherwise specified, the rights and \nremedies granted to a party under this Agreement are cumulative and in \naddition to, and not in lieu of, any other rights or remedies which the party \nmay possess at law or in equity, including without limitation rights or \nremedies under applicable patent, copyright, trade secrets, or proprietary \nrights laws, rules or regulations.\n\n 13.4. EFFECT OF TERMINATION. \n\n 13.4.1 Within thirty (30) calendar days after termination of \nthis Agreement by Licensee (for other than an uncured material breach by NCI) \nor by NCI under Section 13.2 or Section 14.3, Licensee shall, at NCI's \noption, either deliver to NCI or destroy all copies of the NCI Product, the \nNCI Source Code and Distributable Source (or the applicable components \nthereof for termination pursuant to 14.3), including, without limitation, \ncopies of the Bundled Product and End User Documentation and any other \nmaterials provided by NCI to Licensee hereunder in its possession or under \nits control, and shall furnish to NCI an affidavit signed by an officer of \nLicensee certifying that, to the best of its knowledge, such delivery or \ndestruction has been fully effected. In the event of termination of the \nAgreement and\/or the licenses granted by NCI to Licensee in Section 2.1, NCI \nwill return to Licensee any source code received from Licensee under this \nAgreement and any copies thereof.\n\n 13.4.2 In the event that the licenses hereunder are terminated \nfor any reason other than by NCI pursuant to Section 13.2 or 14.3, and \nprovided Licensee fulfills its obligations specified in this Agreement with \nrespect to such items, Licensee may continue to use and retain copies of the \nNCI Product, the NCI Source Code, Distributable Source and End User \nDocumentation to the extent, but only to the extent, necessary to support and \nmaintain Bundled Product rightfully distributed to End Users and Customers by \nLicensee, directly or indirectly through Distributors or Customers, prior to \ntermination of this Agreement.\n\n 13.5. CONTINUING OBLIGATIONS.\n\n\n -21-\n\n\n 13.5.1 PAYMENT OF ACCRUED FEES. Within thirty (30) calendar \ndays of termination of this Agreement, Licensee shall pay to NCI all sums \nthen due and owing. Any other such sums shall subsequently be promptly paid \nas they become due and owing.\n\n 13.5.2 CONTINUANCE OF SUBLICENSES. Notwithstanding the \ntermination of this Agreement, all End User and Customer sublicenses which \nhave been properly granted by Licensee and Distributors and Customers \npursuant to this Agreement prior to its termination shall survive.\n\n 13.5.3 OTHER CONTINUING OBLIGATIONS. The respective rights and \nobligations of NCI and Licensee under the provisions of Sections 2.1.1 \n(subject to Sections 13.2 and 14.3), 2.1.2 (subject to Sections 13.2 and \n14.3), 2.4 (subject to Sections 13.2 and 14.3), 2.1.3, 2.2, 2.3, 3.3.1, 3.4, \n3.5, 4, 6, 7, 8, 9.2, 9.3, 9.4, 9.5, 10, 11, 13.3, 13.4, 13.5 and 14 shall \nsurvive any termination of this Agreement.\n\n 13.6. Consistent with the protection of the rights of the party \nseeking injunctive relief as permitted hereunder, any injunctive relief \nsought by either party to enforce the obligations of the other party under \nthis Agreement shall be structured, to the greatest extent possible, in a \nmanner that will maintain the business operations of the party on which any \nsuch relief is imposed.\n\n14. GENERAL PROVISIONS\n\n 14.1. NOTICES. Any notice, request, demand, or other communication \nrequired or permitted hereunder shall be in writing and shall be deemed to be \nproperly given upon the earlier of (a) actual receipt by the addressee or (b) \nfive (5) business days after deposit in the mail, postage prepaid, when \nmailed by registered or certified airmail, return receipt requested, or two \n(2) business days after being sent via private industry courier to the \nrespective parties at the addresses first set forth above or to such other \nperson or address as the parties may from time to time designate in a writing \ndelivered pursuant to this Section 14.1.\n\n 14.2. WAIVER AND AMENDMENT. The waiver by either party of a breach \nof or a default under any provision of this Agreement, shall not be construed \nas a waiver of any subsequent breach of the same or any other provision of \nthe Agreement, nor shall any delay or omission on the part of either party to \nexercise or avail itself of any right or remedy that it has or may have \nhereunder operate as a waiver of any right or remedy. No amendment or \nmodification of any provision of this Agreement shall be effective unless in \nwriting and signed by a duly authorized signatory of NCI and Licensee.\n\n 14.3. ASSIGNMENT. This Agreement and the licenses granted hereunder \nare to a specific legal entity or legal person, not including corporate \nsubsidiaries or affiliates, and are not assignable by NCI or Licensee, \nincluding, assignments that result from the operation of law, nor are the \nobligations imposed on NCI or Licensee delegable; provided, however, that \neither party shall have the right to assign this Agreement to an acquiror of \nall or substantially all of the business, stock or assets of such party (an \n\n\n -22-\n\n\n\"Acquiror\") provided that such assigning party complies with the terms set \nforth in this Section. \n\n No consent shall be required for an assignment by NCI to an Acquiror \nexcept in the case where such Acquiror is a Specified Party. In the event \nthat such Acquiror is a Specified Party, any such assignment shall be subject \nto Licensee's prior written consent.\n\n In the event of an assignment by Licensee to an Acquiror, the \nfollowing terms shall apply: \n\n (i) Licensee may assign to such Acquiror, without the consent of NCI, \nthose rights and licenses hereunder that pertain to Embedded Graphics Usage \nand may delegate those obligations that pertain to Embedded Graphics Usage. \n\n (ii) if such Acquiror is Microsoft Corporation, WebTV Networks, Inc., \nPlanetWeb, Inc., PowerTV, Inc., OpenTV, Inc., Spyglass, Inc., Intel \nCorporation, International Business Machines Corporation, Sun Microsystems, \nInc., Informix Software, Inc., or Sybase, Inc. (collectively, the \"Specified \nAcquirors\") then NCI, at its option may (A) consent to the assignment of \nthose rights and licenses hereunder that pertain to Directed Browsing and \ndelegation of those obligations that pertain to Directed Browsing Usage or \n(B) withhold consent to the assignment of, and terminate, those rights and \nlicenses hereunder that pertain to Directed Browsing (including, without \nlimitation, those licenses pertaining to Source Code for Directed Browsing \nand related Derivative Works) and delegation of those obligations that \npertain to Directed Browsing, terminate this Agreement with respect to \nDirected Browsing and either (1) provide support to Customers validly \nlicensed to use Directed Browsing subject to terms mutually agreed by the \nparties or (2) negotiate in good faith a license granting to such Acquiror \nsufficient rights in the NCI Source Code, Distributable Source and Excluded \nComponents to allow such Acquiror to provide support to such Customers. In \nthe event that NCI elects to withhold consent as described in (B) above and \nnotwithstanding anything to the contrary herein (including, without \nlimitation, Section 13.4.1), Licensee shall immediately return to NCI all NCI \nSource Code, Distributable Source, Excluded Components, End User \nDocumentation, Derivative Works pertaining to Directed Browsing and any \ncopies, extracts or summaries thereof and shall ensure that no disclosure of \nthe foregoing is made to the Acquiror. \n\n (iii) in the event that Licensee is acquired by one of the Specified \nAcquirors, Licensee shall pay to NCI the applicable \"Assignment Fee\" \ndescribed below prior to or upon the closing of such acquisition:\n\n<\/pre>\n
\n\n==================================================================================
\n Elapsed time from Assignment Fee Assignment Fee if Assignment Fee if 2
\n Effective Date 1 Major Update has Major Updates have
\n been delivered to been delivered to
\n Licensee prior to Licensee prior to
\n effective date of effective date of
\n acquisition acquisition
\n==================================================================================
\n
\n 0-180 days $[***]* $[***]* $[***]*
\n———————————————————————————-<\/p>\n————–
\n* Confidential Treatment Requested. Confidential portion has been filed with
\n the Securities and Exchange Commission.<\/p>\n
-23-<\/p>\n
———————————————————————————-
\n 181-540 days $[***]* $[***]* $[***]*
\n———————————————————————————-
\n 541-900 days $[***]* $[***]* $[***]*
\n———————————————————————————-
\n After 900 days $[***]* $[***]* $[***]*
\n==================================================================================
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
Any attempt by either party to sublicense (except as expressly permitted
\nherein) assign or transfer any of the rights (other than NCI’s right to
\nreceive payment), duties or obligations under this Agreement in derogation
\nhereof shall be null and void.<\/p>\n
14.4. GOVERNING LAW. This Agreement is entered into in the State of
\nCalifornia, U.S., and this Agreement shall be governed by and construed in
\naccordance with the laws of the State of California, U.S., without reference
\nto its conflicts of law provisions. Any dispute regarding this Agreement
\nshall be subject to the exclusive jurisdiction of the California state courts
\nin and for Santa Clara County, California (or, if there is exclusive federal
\njurisdiction, the United States District Court for the Northern District of
\nCalifornia), and the parties agree to submit to the personal and exclusive
\njurisdiction and venue of these courts. This Agreement will not be governed
\nby the United Nations Convention of Contracts for the International Sale of
\nGoods, the application of which is hereby expressly excluded.<\/p>\n
14.5. RELATIONSHIP OF THE PARTIES. No agency, partnership, joint
\nventure, or employment is created as a result of this Agreement and neither
\nLicensee, its Distributors nor its Customers or agents have any authority of
\nany kind to bind NCI in any respect whatsoever.<\/p>\n
14.6. CAPTIONS AND SECTION HEADINGS. The captions and section and
\nparagraph headings used in this Agreement are inserted for convenience only
\nand shall not affect the meaning or interpretation of this Agreement.<\/p>\n
14.7. SEVERABILITY. If the application of any provision or
\nprovisions of this Agreement to any particular facts of circumstances shall
\nbe held to be invalid or unenforceable by any court of competent
\njurisdiction, then (a) the validity and enforceability of such provision or
\nprovisions as applied to any other particular facts or circumstances and the
\nvalidity of other provisions of this Agreement shall not in any way be
\naffected or impaired thereby and (b) such provision or provisions shall be
\nreformed without further action by the parties hereto to and only to the
\nextent necessary to make such provision or provisions valid and enforceable
\nwhen applied to such particular facts and circumstances.<\/p>\n
14.8. FORCE MAJEURE. Either party shall be excused from any delay or
\nfailure in performance hereunder, except the payment of monies by Licensee to
\nNCI, caused by reason of any occurrence or contingency beyond its reasonable
\ncontrol, including but not limited to, acts of God, earthquake, labor
\ndisputes and strikes, riots, war, and governmental requirements. The
\nobligations and rights of the party so excused shall be extended on a
\nday-to-day basis for the period of time equal to that of the underlying cause
\nof the delay.<\/p>\n
————–
\n* Confidential Treatment Requested. Confidential portion has been filed with
\n the Securities and Exchange Commission.<\/p>\n
-24-<\/p>\n
14.9. ENTIRE AGREEMENT. This Agreement, including the Attachments
\nhereto, constitutes the entire agreement between the parties concerning the
\nsubject matter hereof and supersedes all prior or contemporaneous proposals
\nand agreements whether oral or written, and all communications between the
\nparties relating to the subject matter of this Agreement and all past courses
\nof dealing or industry custom. If any ambiguity or conflict exists between
\nthe terms of this Agreement and the terms of any Attachment hereto, the terms
\nof the Attachment shall prevail and shall be conclusively determined to
\nreflect the intention of the parties with respect to the relevant issues.
\nThe terms and conditions of this Agreement shall prevail, notwithstanding any
\nvariance with any purchase order or other written instrument submitted by
\nLicensee, whether formally rejected by NCI.<\/p>\n
-25-<\/p>\n
14.10. ENGLISH. This Agreement is in the English language only, which
\nlanguage shall be controlling in all respects, and all versions hereof in any
\nother language shall not be binding on the parties hereto. All
\ncommunications and notices to be made or given pursuant to this Agreement
\nshall be in the English language.<\/p>\n
IN WITNESS WHEREOF, the parties have caused this Agreement to be
\nexecuted by duly authorized representatives of the parties as of the
\nEffective Date.<\/p>\n
NETWORK COMPUTER, INC. LICENSEE<\/p>\n
By: By:
\n ————————- ————————-
\n Signature Signature<\/p>\n
Name: Name:
\n ———————– ———————–
\n Print or Type Print or Type<\/p>\n
Title: Title:
\n ———————- ———————-<\/p>\n
Date: Date:
\n ———————– ———————–<\/p>\n
-26-<\/p>\n
ATTACHMENT A<\/p>\n
TO OEM LICENSE AGREEMENT<\/p>\n
PRODUCT(S) AND TRADEMARK DESCRIPTIONS<\/p>\n
NCI Product: NCI eNavigator-TM- Version 1.1 derived from TV
\n Navigator-TM-<\/p>\n
Directed Browsing:<\/p>\n
“Directed Browsing” shall be limited to the following functions:<\/p>\n
– Directed Browsing shall allow access solely to “Internet-
\n formatted” content that is digitally signed specifically for
\n display on the Bundled Product. “Internet-formatted” content shall
\n mean HTML, Javascript, Java, GIF, JPEG, and other MIME-type data.<\/p>\n
– Directed Browsing shall only provide access to those web sites
\n dedicated to a specific application (“Directed Browsing
\n Websites”). <\/p>\n
– Directed Browsing shall provide access only to Direct Browsing
\n Websites through a single domain name registered to a single
\n corporate entity (“Designated Domain Name”). All content,
\n applications or other elements appearing on the Directed Browsing
\n Websites shall be owned by or licensed to the owner or operator of
\n the respective Designated Domain Name.<\/p>\n
– Directed Browsing specifically excludes the ability to access
\n directly, or through the use the servers on which the Directed
\n Browsing Websites reside (e.g. DNS, Proxy), domain names other
\n than the Designated Domain Name (as defined below) or gain
\n Internet connectivity by other methods, including, without
\n limitation, (i) substituting or remapping the Designated Domain
\n Name to allow access to other domain names, (ii) caching access to
\n content, applications, web-sites or other elements capable of
\n display on the Bundled Product outside of the Designated Domain
\n Name, (iii) caching external web-sites on a proxy server, (iv)
\n web-wacking data from external web-sites to a local web-server, or
\n (v) web site mirroring. The source code for the foregoing
\n components are herein referred to as the NCI Source Code for
\n Directed Browsing. Neither Directed Browsing nor the servers on
\n which the Directed Browsing Websites reside shall permit or
\n provide the ability to circumvent the navigation and access to the
\n Designated Domain Name. The parties hereby agree that, in the
\n event that either party determines that the foregoing definition
\n of Directed Browsing is commercially unreasonable, the parties
\n will negotiate in good faith a possible amendment to such
\n definition. <\/p>\n
– Directed Browsing includes applications for Embedded Graphics
\n Usage, but when the function of the HTML rendering engine is
\n employed in such a way that the application specific user
\n interface would not be considered to be an example of a “browser
\n application” (ie., an example of a “browser application” would be
\n an application that gave access to pre-formatted html content on a
\n CD that constitutes an interactive tour guide; an example of an
\n application which would not be considered a “browser <\/p>\n
-1-<\/p>\n
application” would be an application that provides access to
\n user-interface specific functionality for a device such as a
\n photocopier machine), all branding obligations will be waived.<\/p>\n
Embedded Graphics Usage:<\/p>\n
– “Embedded Graphics Usage” shall mean any use by Licensee of the
\n eNavigator Graphics Technology (as defined below), provided that
\n (a) such use of the eNavigator Graphics Technology is solely in
\n connection with the creation of a non-Internet application, and
\n (b) the eNavigator Graphics Technology (as defined below) is not
\n utilized to create or in conjunction with any product marketed,
\n distributed or developed by Licensee that is a network browser or
\n otherwise competes with the NCI Product as it exists on the date
\n NCI delivers the Deliverables to Licensee. The “eNavigator
\n Graphics Technology” shall be limited to the following components
\n of the NCI Product: (i) the Window Manager, (ii) the binary code
\n for the Javascript engine, (iii) the 2D Graphics library, and
\n (iii) the UI Widget library, and (iv) the text library. The source
\n code for the foregoing components are herein referred to as the
\n NCI Source Code for Embedded Graphics Usage. Notwithstanding
\n anything in this Agreement to the contrary Licensee shall have no
\n right to use the Embedded Graphics Usage in conjunction with
\n televisions with any form of internet access or to create any form
\n of a television “browser application”. Notwithstanding anything
\n in this Agreement to the contrary, Licensee shall have no rights
\n to distribute source code for the Javascript engine or the
\n Bitstream font technology.<\/p>\n
SDK Source Headers: <\/p>\n
\\nci\\sdk\\include\\AppError.h
\n\\nci\\sdk\\include\\AppMsg.h
\n\\nci\\sdk\\include\\assert.h
\n\\nci\\sdk\\include\\Base.h
\n\\nci\\sdk\\include\\cAccntMan.h
\n\\nci\\sdk\\include\\CacheMan.h
\n\\nci\\sdk\\include\\cCacheMan.h
\n\\nci\\sdk\\include\\cErrLog.h
\n\\nci\\sdk\\include\\CharSet.h
\n\\nci\\sdk\\include\\cHwfHandlers.h
\n\\nci\\sdk\\include\\cIspConnect.h
\n\\nci\\sdk\\include\\cNotifier.h
\n\\nci\\sdk\\include\\codeHeader.h
\n\\nci\\sdk\\include\\ctype.h
\n\\nci\\sdk\\include\\DataWrapper.h
\n\\nci\\sdk\\include\\Destroyable.h
\n\\nci\\sdk\\include\\errno.h
\n\\nci\\sdk\\include\\Fetcher.h
\n\\nci\\sdk\\include\\HtmlHandler.h
\n\\nci\\sdk\\include\\iCacheMan.h<\/p>\n
-2-<\/p>\n
\\nci\\sdk\\include\\int64.h
\n\\nci\\sdk\\include\\Mail.h
\n\\nci\\sdk\\include\\MimeHandler.h
\n\\nci\\sdk\\include\\module.h
\n\\nci\\sdk\\include\\navio.h
\n\\nci\\sdk\\include\\navioBoot.h
\n\\nci\\sdk\\include\\navioErr.h
\n\\nci\\sdk\\include\\navioInit.h
\n\\nci\\sdk\\include\\net.h
\n\\nci\\sdk\\include\\NviParamdef.h
\n\\nci\\sdk\\include\\PlatformInfo.h
\n\\nci\\sdk\\include\\PlatformInfoBitmask.h
\n\\nci\\sdk\\include\\SmartCard.h
\n\\nci\\sdk\\include\\stdarg.h
\n\\nci\\sdk\\include\\stddef.h
\n\\nci\\sdk\\include\\stdio.h
\n\\nci\\sdk\\include\\stdlib.h
\n\\nci\\sdk\\include\\string.h
\n\\nci\\sdk\\include\\stringutil.h
\n\\nci\\sdk\\include\\Text.h
\n\\nci\\sdk\\include\\TextTypes.h
\n\\nci\\sdk\\include\\time.h
\n\\nci\\sdk\\include\\Vec.h
\n\\nci\\sdk\\include\\Virtual.h
\n\\nci\\sdk\\include\\wchar.h
\n\\nci\\sdk\\include\\anim\\AnimPlyr.h
\n\\nci\\sdk\\include\\arch\\i86\\archI86.h
\n\\nci\\sdk\\include\\arch\\mips\\archMips.h
\n\\nci\\sdk\\include\\arch\\mips\\r4000.h
\n\\nci\\sdk\\include\\aud\\Snd.h
\n\\nci\\sdk\\include\\aud\\UiSnd.h
\n\\nci\\sdk\\include\\chat\\Chat.h
\n\\nci\\sdk\\include\\gfx\\cColor.h
\n\\nci\\sdk\\include\\gfx\\Color.h
\n\\nci\\sdk\\include\\gfx\\GfxCtx.h
\n\\nci\\sdk\\include\\gfx\\GfxPrims.h
\n\\nci\\sdk\\include\\gfx\\GfxTypes.h
\n\\nci\\sdk\\include\\gfx\\GfxUtil.h
\n\\nci\\sdk\\include\\gfx\\GifCond.h
\n\\nci\\sdk\\include\\gfx\\Image.h
\n\\nci\\sdk\\include\\gfx\\PixMap.h
\n\\nci\\sdk\\include\\gfx\\Png.h
\n\\nci\\sdk\\include\\gfx\\Rect.h
\n\\nci\\sdk\\include\\gfx\\RectList.h<\/p>\n
-3-<\/p>\n
\\nci\\sdk\\include\\gfx\\VBlankClock.h
\n\\nci\\sdk\\include\\intl\\Ime.h
\n\\nci\\sdk\\include\\intl\\Locale.h
\n\\nci\\sdk\\include\\kernel\\ansiTimeExt.h
\n\\nci\\sdk\\include\\kernel\\BSem.h
\n\\nci\\sdk\\include\\kernel\\cBsem.h
\n\\nci\\sdk\\include\\kernel\\cClock.h
\n\\nci\\sdk\\include\\kernel\\cCondVar.h
\n\\nci\\sdk\\include\\kernel\\cDirectory.h
\n\\nci\\sdk\\include\\kernel\\cEvent.h
\n\\nci\\sdk\\include\\kernel\\cFile.h
\n\\nci\\sdk\\include\\kernel\\cHardwareFault.h
\n\\nci\\sdk\\include\\kernel\\Clock.h
\n\\nci\\sdk\\include\\kernel\\ClockTypes.h
\n\\nci\\sdk\\include\\kernel\\cMemRegion.h
\n\\nci\\sdk\\include\\kernel\\cMsgQueue.h
\n\\nci\\sdk\\include\\kernel\\cMsgTypes.h
\n\\nci\\sdk\\include\\kernel\\cMutex.h
\n\\nci\\sdk\\include\\kernel\\CondVar.h
\n\\nci\\sdk\\include\\kernel\\cShareLock.h
\n\\nci\\sdk\\include\\kernel\\cSysMonitor.h
\n\\nci\\sdk\\include\\kernel\\cSystem.h
\n\\nci\\sdk\\include\\kernel\\cThread.h
\n\\nci\\sdk\\include\\kernel\\cTimer.h
\n\\nci\\sdk\\include\\kernel\\Directory.h
\n\\nci\\sdk\\include\\kernel\\Event.h
\n\\nci\\sdk\\include\\kernel\\File.h
\n\\nci\\sdk\\include\\kernel\\iBsem.h
\n\\nci\\sdk\\include\\kernel\\iClock.h
\n\\nci\\sdk\\include\\kernel\\iCondVar.h
\n\\nci\\sdk\\include\\kernel\\iDirectory.h
\n\\nci\\sdk\\include\\kernel\\iEvent.h
\n\\nci\\sdk\\include\\kernel\\iFile.h
\n\\nci\\sdk\\include\\kernel\\iMemRegion.h
\n\\nci\\sdk\\include\\kernel\\iMsgQueue.h
\n\\nci\\sdk\\include\\kernel\\iMutex.h
\n\\nci\\sdk\\include\\kernel\\iShareLock.h
\n\\nci\\sdk\\include\\kernel\\iSystem.h
\n\\nci\\sdk\\include\\kernel\\iThread.h
\n\\nci\\sdk\\include\\kernel\\iTimer.h
\n\\nci\\sdk\\include\\kernel\\MemRegion.h
\n\\nci\\sdk\\include\\kernel\\Msg.h
\n\\nci\\sdk\\include\\kernel\\MsgQueue.h
\n\\nci\\sdk\\include\\kernel\\Mutex.h<\/p>\n
-4-<\/p>\n
\\nci\\sdk\\include\\kernel\\Mutex.h
\n\\nci\\sdk\\include\\kernel\\ShareLock.h
\n\\nci\\sdk\\include\\kernel\\System.h
\n\\nci\\sdk\\include\\kernel\\Thread.h
\n\\nci\\sdk\\include\\kernel\\Timer.h
\n\\nci\\sdk\\include\\kernel\\TimerTypes.h
\n\\nci\\sdk\\include\\liveConn\\LiveConnEnabled.h
\n\\nci\\sdk\\include\\media\\Conductor.h
\n\\nci\\sdk\\include\\media\\iConductor.h
\n\\nci\\sdk\\include\\mime\\MimeRequest.h
\n\\nci\\sdk\\include\\reg\\cReg.h
\n\\nci\\sdk\\include\\reg\\cRegDef.h
\n\\nci\\sdk\\include\\reg\\cRegName.h
\n\\nci\\sdk\\include\\scriptSym\\DataValue.h
\n\\nci\\sdk\\include\\types\\navANSI.h
\n\\nci\\sdk\\include\\types\\navArch.h
\n\\nci\\sdk\\include\\types\\navCpu.h
\n\\nci\\sdk\\include\\types\\navParams.h
\n\\nci\\sdk\\include\\types\\navTypes.h
\n\\nci\\sdk\\include\\types\\navTypesBase.h
\n\\nci\\sdk\\include\\types\\navTypesOld.h
\n\\nci\\sdk\\include\\util\\navFlash.h
\n\\nci\\sdk\\include\\util\\ScreenSaver.h
\n\\nci\\sdk\\include\\vid\\cVid.h
\n\\nci\\sdk\\include\\vid\\Tv.h
\n\\nci\\sdk\\include\\widget\\Alert.h
\n\\nci\\sdk\\include\\widget\\Ascii.h
\n\\nci\\sdk\\include\\widget\\Border.h
\n\\nci\\sdk\\include\\widget\\CheckBox.h
\n\\nci\\sdk\\include\\widget\\Component.h
\n\\nci\\sdk\\include\\widget\\Container.h
\n\\nci\\sdk\\include\\widget\\Document.h
\n\\nci\\sdk\\include\\widget\\Focus.h
\n\\nci\\sdk\\include\\widget\\Frame.h
\n\\nci\\sdk\\include\\widget\\Grid.h
\n\\nci\\sdk\\include\\widget\\Highlight.h
\n\\nci\\sdk\\include\\widget\\History.h
\n\\nci\\sdk\\include\\widget\\iCheckBox.h
\n\\nci\\sdk\\include\\widget\\iPushButton.h
\n\\nci\\sdk\\include\\widget\\KeyCodes.h
\n\\nci\\sdk\\include\\widget\\Layout.h
\n\\nci\\sdk\\include\\widget\\ListBox.h
\n\\nci\\sdk\\include\\widget\\Notify.h
\n\\nci\\sdk\\include\\widget\\Picture.h
\n\\nci\\sdk\\include\\widget\\ProgressBar.h<\/p>\n
-5-<\/p>\n
\\nci\\sdk\\include\\widget\\PushButton.h
\n\\nci\\sdk\\include\\widget\\RadioButton.h
\n\\nci\\sdk\\include\\widget\\SoftKbd.h
\n\\nci\\sdk\\include\\widget\\TextArea.h
\n\\nci\\sdk\\include\\widget\\TextEdit.h
\n\\nci\\sdk\\include\\widget\\TextField.h
\n\\nci\\sdk\\include\\widget\\TvPicture.h
\n\\nci\\sdk\\include\\widget\\Widget.h
\n\\nci\\sdk\\include\\widget\\WidgetErrorBase.h
\n\\nci\\sdk\\include\\win\\Point.h
\n\\nci\\sdk\\include\\win\\Win.h
\n\\nci\\sdk\\include\\win\\WinEvent.h
\n\\nci\\sdk\\include\\win\\WinInput.h
\n\\nci\\sdk\\include\\win\\WinManConn.h<\/p>\n
Deliverables:<\/p>\n
\n\n Description Estimated Delivery Date
\n —————————————————————–
\n
\n NCI Source Code excluding the
\n Excluded Components and any third January 30, 1998
\n party Optional Products\/Modules<\/p>\n<\/c><\/s><\/caption>\n<\/table>\n
NCI Trademarks: NCI, eNavigator<\/p>\n
NCI LOGO: The NC logo as set forth on the Corporate Signature Kit<\/p>\n
-6-<\/p>\n
ATTACHMENT B<\/p>\n
TO OEM LICENSE AGREEMENT<\/p>\n
LICENSEE PRODUCT, LICENSEE TRADEMARK, PRICING AND PAYMENT SCHEDULES, TERRITORY
\n AND OPTIONAL PRODUCTS\/MODULES<\/p>\n
\n
\nLicensee Product: Licensee’s real time embedded operating system
\n including VxWorks, IxWorks, WiSP, and other real
\n time embedded operating systems developed and owned
\n by Licensee <\/p>\nLicensee Trademarks: Wind River Systems, VxWorks, Tornado, IxWorks,
\n Embedded Internet, WiSP (including the logos) <\/p>\n
Specified Parties: Integrated Systems, Inc., Microware Systems Corp.,
\n Mentor Graphics Corporation RTOS Division, QNX
\n Software Systems, Ltd., Accelerated Technology,
\n Inc., the Chorus and Diba divisions of Sun
\n Microsystems, Inc. (or any other name under which
\n such divisions operate), and Lynx Real Time Systems,
\n Inc.<\/p>\n
Pricing: All of the following fees are nonrefundable and
\n noncancelable:<\/p>\n
– License Fee: License Fee of $[***]* (payable as follows:
\n $[***]* upon execution of the Agreement;
\n $[***]* due within sixty (60) days following
\n delivery hereunder of the NCI Source Code).<\/p>\n
– Prepaid License Fee: Prepaid License Fee of $[***]* for prepaid
\n royalties on Tier II Directed Browsing applications
\n (as defined below) (payable within sixty (60) days
\n following delivery hereunder of the NCI Source
\n Code).<\/p>\n
– Engineering Fees: NCI shall provide to Licensee up to nine (9)
\n cumulative man-months of engineering effort to
\n prepare the NCI Source Code for<\/p>\n
————–
\n* Confidential Treatment Requested. Confidential portion has been filed with
\n the Securities and Exchange Commission.<\/p>\n
delivery to Licensee and to support Licensee as
\n reasonably requested by Licensee. Within sixty
\n (60) days following delivery hereunder of NCI
\n Source Code, Licensee shall pay $[***]* for such
\n engineering effort. For any engineering effort
\n beyond the effort described above, Licensee will
\n pay NCI time and materials at a rate of $[***]*
\n per man-month plus out of pocket expenses. <\/p>\n
<\/s><\/c><\/table>\n
– Royalties: <\/p>\n
\n\n===================================================================================
\n PRODUCT ROYALTY\/UNIT
\n———————————————————————————–
\n
\n Tier I: NCI eNavigator v1.1 for Directed N\/A
\n Browsing (excluding Tier II
\n applications)
\n———————————————————————————–
\n Tier II: NCI eNavigator v1.1 for SUBJECT TO SECTION (c) BELOW,
\n Directed Browsing Applications for Web FOR EACH UNIT OF THE BUNDLED
\n Phones, Car Navigation Systems, and PRODUCT DISTRIBUTED HEREUNDER
\n Personal Digital Assistants LICENSEE SHALL PAY THE GREATER
\n (The first [***]* units distributed OF: [***]*% OF THE FEE RECEIVED
\n in the twelve month period immediately FOR THE BUNDLED PRODUCT AND
\n following the first commercial shipment $[***]* FOR ENAVIGATOR V1.X AND
\n of the first Bundled Product shall be $[***]* FOR V2.0 AND ANY OTHER
\n royalty-free; the first [***]* units INCLUDED MAJOR UPDATES OF
\n distributed in each year thereafter ENAVIGATOR.
\n shall be royalty-free)
\n———————————————————————————–
\n Embedded Graphics Applications SEE BELOW
\n===================================================================================
\n NCI eNavigator v1.1 Source Code Access N\/A
\n===================================================================================
\n<\/c><\/s><\/caption>\n<\/table>\n**At Licensee’s request, NCI and Licensee agree to negotiate in good faith
\nthe terms and conditions of a potential NCI server reseller agreement. At
\nLicensee’s request, NCI and Licensee shall negotiate in good faith a
\npotential license agreement granting Licensee a license to use, modify, and
\nsublicense the NCI Product for full Internet browsing, including the right to
\nsublicense Bundled Product for TV-based applications.
\nShould the royalty fees for Tier II applications detailed above become
\nunreasonable for either party, the parties agree to negotiate in good faith
\ntowards a mutually agreeable license fee.<\/p>\n
b) In the event Licensee elects to include available third party modules,
\n Licensee agrees to pay optional third party royalties at a [***]* percent
\n ([***]*%) discount off of NCI’s list price applicable to such optional
\n modules provided that such third party module is available from NCI in
\n source code form. Personal Java will be treated as an optional third
\n party module if available.<\/p>\n
c) Licensee shall make the following payments for distributing units of the
\n Bundled Product as follows:
\n For any Bundled Product where the use of the NCI Product is restricted
\n solely to Embedded Graphics Usage, Licensee shall owe no additional
\n Royalty hereunder.<\/p>\n
————–
\n* Confidential Treatment Requested. Confidential portion has been filed with
\n the Securities and Exchange Commission.<\/p>\n
-2-<\/p>\n
For unit(s) of Bundled Product licensed for any Tier II Application of
\n Directed Browsing, Licensee shall owe the Royalty set forth in the chart
\n above upon the earlier of (i) Licensee’s receipt of payment for such
\n unit(s) of Bundled Product (including any prepaid royalties or licensing
\n fee pertaining thereto) and (ii) Licensee’s, Distributors’, or Customers’
\n distribution of such unit(s) of Bundled Product to an End User. <\/p>\n
For any Bundled Product licensed for any Tier I Application of Directed
\n Browsing, Licensee shall owe no additional Royalty hereunder.<\/p>\n
Notwithstanding the foregoing, Licensee shall owe no per unit Royalty for
\n distribution of Bundled Product that is embedded into a device that meets
\n the following criteria: such device requires the NCI Custom Connect
\n Server (or a successor NCI product) to operate. <\/p>\n
\n
\n– Service Fee: For the twelve month period commencing on the first
\n day of the sixteenth month following the Effective
\n Date hereof, Licensee will pay, in advance, an
\n annual non-refundable Service Fee equal to the
\n greater of (x) $[***]* or (y) [***]*% of all
\n Royalties accrued hereunder for distributions made
\n during the prior (12) twelve month period.
\n Thereafter, the parties shall negotiate in good
\n faith the Service Fee applicable for NCI’s
\n provision of maintenance and support services
\n described herein in subsequent years.<\/p>\nTerritory: Worldwide<\/p>\n
Optional Products\/Modules: Sound module (includes MIDI, RealAudio)
\n RSA security module
\n Additional fonts (Chinese, etc.)<\/p>\n
Third Party Code: JPEG, Berkeley DBM, Bitstream<\/p>\n
<\/s><\/c><\/table>\n
The following requirements must be met for each Bundled Product distributed
\nunder the attached Agreement<\/p>\n
JPEG – All manuals must include the phrase “The [Insert name of Bundled
\n Product] is based, in part, on the work of the Independent JPEG Group.” <\/p>\n
BERKELEY DBM – The entire notice below must be included in “THE
\n DOCUMENTATION AND\/OR OTHER MATERIALS PROVIDED WITH THE DISTRIBUTION.” <\/p>\n
“The portion of [the Bundled Product] that provides the DBM function is
\n copyright (c) 1990, 1993, 1994 The Regents of the University of
\n California (the “Regents”). All rights reserved. This code is derived
\n from software contributed to Berkeley by Margo Seltzer. Redistribution
\n and use in source and binary forms, with or without modification, are
\n permitted provided that the following conditions are met:<\/p>\n
————–
\n* Confidential Treatment Requested. Confidential portion has been filed with
\n the Securities and Exchange Commission.<\/p>\n
-3-<\/p>\n
1. Redistribution of source code must retain the above copyright notice,
\n this list of conditions and the following disclaimer.<\/p>\n
2. Redistribution in binary form must reproduce the above copyright
\n notice, this list of conditions and the following disclaimer in the
\n documentation and\/or other materials provided with the distribution.<\/p>\n
3. All advertising materials mentioning features or use of this software
\n must display the following acknowledgment:<\/p>\n
This product includes software developed by the University of
\n California, Berkeley and its contributors.<\/p>\n
4. Neither the name of the University nor the names of its contributors
\n may be used to endorse or promote products derived from this software
\n without specific prior written permission.<\/p>\n
THE SOFTWARE WHICH PROVIDES THE DBM FUNCTION IS PROVIDED BY THE REGENTS
\n AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES,
\n INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
\n AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL
\n THE REGENTS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT,
\n INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT
\n NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE,
\n DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY
\n THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT
\n (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF
\n THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.”<\/p>\n
BITSTREAM SOFTWARE – Licensee must reproduce each Bitstream copyright,
\n trademark and\/or patent notice, as applicable in its entirety on each
\n copy of the Bundled Product, in the same location as it appears, in
\n electronic or printed form, on the NCI Product as delivered to Licensee.<\/p>\n
OFFER TO PURCHASE SERVICES AND LICENSES SEPARATELY<\/p>\n
THE CONSULTING SERVICES AND THE LICENSES CONTAINED HEREIN ARE PROPOSED
\n SEPARATELY. LICENSEE MAY ACQUIRE THE LICENSES CONTAINED HEREIN WITHOUT
\n ACQUIRING NCI CONSULTING SERVICES, AND LICENSEE MAY ACQUIRE THE LICENSES
\n CONTAINED HEREIN SEPARATELY AT THE FEES STATED IN THIS AGREEMENT.<\/p>\n
-4-<\/p>\n
ATTACHMENT C<\/p>\n
TO OEM LICENSE AGREEMENT<\/p>\n
MAINTENANCE AND TECHNICAL SUPPORT<\/p>\n
1. MAINTENANCE\/MINOR UPDATES. In consideration of the Service Fee set
\nforth in Attachment B, NCI will provide to Licensee any Minor Updates made
\ngenerally available to similarly situated licensees of NCI Product during the
\none (1) year term of this Maintenance and Technical Support Agreement. NCI
\nwill not be responsible for providing Minor Updates to End Users,
\nDistributors or Customers and Licensee will be responsible for providing
\nMinor Updates to End Users which Licensee licenses directly, and to
\nDistributors, and Customers. If requested in writing by NCI, Licensee will
\ndistribute each Minor Update to Distributors, Customers and End Users which
\nLicensee licenses directly. Such Minor Updates may be distributed via modem
\nor tangible medium, at the discretion of NCI. The expenses of any such
\ndistribution will be paid by Licensee. Licensee and NCI agree to discuss
\nmonthly support issues and processes.<\/p>\n
2. TECHNICAL SUPPORT. In consideration of Service Fee set forth in
\nAttachment B, NCI will provide Licensee with NCI’s backend technical support
\nservices, as further described herein.<\/p>\n
a) BACK-END SUPPORT. NCI will provide back-end support to Licensee
\n for Program Errors not resolved by Licensee pursuant to Licensee’s
\n support policies and in accordance with subsection (b) below. This
\n support includes efforts to identify defective source code and to provide
\n corrections, workarounds and\/or patches to correct Program Errors. NCI
\n will provide Licensee with a telephone number and an e-mail address which
\n Licensee may use to report Program Errors during NCI’s local California
\n business hours (8am-5pm Pacific Time). For priority 1 or 2 failures,
\n Licensee agrees to notify NCI via both telephone and e-mail. Licensee
\n will identify one (1) member of its customer support staff and an
\n alternate to act as the primary technical liaisons responsible for all
\n communications with NCI’s technical support representatives. Such
\n liaisons will have sufficient technical expertise, training and\/or
\n experience for Licensee to perform its obligations hereunder. Within one
\n (1) week after the Effective Date, Licensee will designate its
\n liaison(s). Notification will be in writing and\/or e-mail to NCI.
\n Licensee may substitute contacts at any time by providing to NCI one (1)
\n week’s prior written and\/or electronic notice thereof.<\/p>\n
NCI will make reasonable efforts to correct significant Program Errors
\n that Licensee identifies, classifies and reports to NCI and that NCI
\n substantiates. NCI may reclassify Program Errors if it reasonably
\n believes that Licensee’s classification is incorrect. Licensee will
\n provide sufficient information to enable NCI to duplicate the Program
\n Error before NCI’s response obligations will commence. NCI will not be
\n required to correct any Program Error caused by (a) Licensee’s
\n incorporation or attachment of a feature, program, or device to the NCI
\n Product, or any part thereof; (b) any nonconformance caused by accident,
\n transportation, neglect, misuse, alteration, modification, or enhancement
\n of the NCI Product; (c) the failure to provide a suitable installation
\n environment; (d) use of the NCI Product for other than the specific
\n purpose for which the NCI Product are designed; (e) Licensee’s use of
\n defective media other than defective media provided by NCI to Licensee or
\n defective duplication of the NCI Product; or (f) Licensee’s failure to
\n incorporate any Minor Update previously released by NCI which corrects
\n such Program Errors.<\/p>\n
Provided Program Error reports are received by NCI during NCI’s local
\n California business hours (8am-5pm Pacific Time), NCI will use its
\n commercially reasonable efforts to communicate with Licensee about the
\n Program Error via telephone or e-mail within the following targeted
\n response times:<\/p>\n
\n\n —————————————————————————-
\n Priority Failure Description Response Time
\n —————————————————————————-
\n <\/p>\n —<\/p>\n
—————————————————————————-
\n 1 Severe Impact (functionality disabled): 4 working hours
\n errors which result in a lack of
\n application functionality or cause
\n intermittent system failure
\n —————————————————————————-
\n 2 Degraded Operations: errors causing 2 working days
\n malfunction of non-critical functions
\n —————————————————————————-
\n 3 Minimal Impact attributes and\/or options to 5 working days
\n utility programs do not operate as stated
\n —————————————————————————-
\n 4 Enhancement Request 5 working days
\n —————————————————————————-
\n<\/c><\/s><\/c><\/caption>\n<\/table>\n
Provided that Licensee provides to NCI the necessary assistance and
\n deliverables in order for NCI to perform NCI’s technical support
\n obligations, including, without limitation, providing the Prototypes to
\n NCI, NCI will use reasonable commercial efforts to provide a timely
\n response based upon Licensee’s characterization of such Program Error,
\n and to resolve each significant Program Error by providing either a
\n reasonable workaround, an object code patch, or a specification plan for
\n how NCI will address the problem and an estimate of how long it will take
\n to rectify the defect. Except with respect to Program Errors found in
\n the Excluded Components, NCI reserves the right to charge Licensee
\n additional fees at its then-standard rates for services performed in
\n connection with reported Program Errors which are later determined to
\n have been due to hardware or software not supplied by NCI, including
\n without limitation, Program Errors which are not present in the Reference
\n Implementation. Such additional charges shall be charged against the
\n $200,000 of Engineering Fees paid by Licensee to NCI for up to nine (9)
\n cumulative man-months of engineering effort as set forth in Attachment B.
\n Notwithstanding the foregoing, NCI has no obligation to perform services
\n in connection with Program Errors (i) resulting from hardware or software
\n not supplied by NCI; or (ii) which occur in the NCI Product release which
\n is not the then-current release.<\/p>\n
b) FRONT-LINE SUPPORT. Licensee, and not NCI, will provide front-
\n line, or first and second level, technical support to its Distributors,
\n Customers and End Users. Such support includes call receipt, call
\n screening, installation assistance, problem identification and diagnosis,
\n efforts to create a repeatable demonstration of the Program Error and, if
\n applicable, the replacement of any defective media or distribution of
\n Minor updates. Licensee agrees that any End User Documentation
\n distributed by Licensee will clearly and conspicuously state that
\n Customers should call Licensee for technical support for the NCI Product.
\n NCI will have no obligation to furnish any assistance, information or End
\n User Documentation with respect to the NCI Product, to any Distributor,
\n Customer or End User. If NCI customer support representatives are being
\n contacted by a significant number of Licensee’s Distributors, Customers
\n or End Users then, upon NCI’s request, Licensee and NCI will cooperate to
\n minimize such contact. <\/p>\n
-2-<\/p>\n
ATTACHMENT D<\/p>\n
TO OEM LICENSE AGREEMENT<\/p>\n
USER INTERFACE AND BRANDING REQUIREMENTS FOR DIRECTED BROWSING<\/p>\n
In all cases the color, positioning, trademarks and fonts used with the NCI
\nLogo in conjunction with the NCI Product or Bundled Product will adhere to
\nthe NCI Signature Guidelines. Due to the limited nature of the screen
\nreal-estate used with embedded devices the following logo size requirements
\nwill replace general size requirements found in the NCI Signature Guidelines.
\nFor devices using screen sizes from Quarter VGA to Full VGA (320×240 up to
\n640×480), the NCI Logo shall be no smaller than 20 Pixels in height. (The
\nheight of the logo will define the width base on the standards found in the
\nNCI Signature Guidelines.) For Devices using screen sizes of full VGA and
\nabove the NCI Logo shall be no smaller than 40 Pixels in height. <\/p>\n
On any display Quarter VGA or larger (e.g. 320×240 pixels or 240×320 pixels),
\nthe NCI Logo will be presented in each of the following situations:<\/p>\n
1) The NCI Logo will appear on any Navigation menus. A Navigation menu is
\n defined as any menu, set of buttons, or commands that allow the user to
\n control the Directed Browsing feature of the NCI Product. Examples of
\n Navigation menus would include:<\/p>\n
– Pop up menu where the user can input a URL address
\n– Menu where forward, back or home buttons are displayed
\n– A function menu where directed web applications can be launched (e.g.
\n mail)<\/p>\n
2) The NCI Logo will appear on any Status bar menus. A Status bar menu is
\n defined as any menu, pop-up window or overlay that reports the status of
\n a directed browsing function within the NCI Product and\/or Bundled
\n Product. Examples of Status bars would include:<\/p>\n
– Progress bar in drawing a web page
\n– Animated downloading icon (eg. Netscape logo in Navigator)
\n– Status update when downloading applications, mail or other content<\/p>\n
3) If a Directed Browsing application is part of a program “launch” the NCI
\n Logo will appear as a splash screen on launch.<\/p>\n
Status Bar Example:<\/p>\n
[GRAPHIC]<\/p>\n
-2-<\/p>\n
Navigation Bar Example<\/p>\n
[GRAPHIC]<\/p>\n
-3-<\/p>\n
AMENDMENT N0. 1 TO
\n OEM LICENSE AGREEMENT
\n BETWEEN NETWORK COMPUTER, INC.
\n AND WIND RIVER SYSTEMS, INC.
\n DATED DECEMBER 31, 1997<\/p>\n
This Amendment No. 1 (“Amendment No. 1”) to the OEM License Agreement dated
\nDecember 31, 1997 between Network Computer, Inc. a Delaware corporation (“NCI”)
\nand Wind River Systems, Inc., a Delaware corporation (“Licensee”), as amended
\n(the “OEM License Agreement”), is made and entered into this 31st day of August,
\n1998 (the “Amendment 1 Effective Date”).<\/p>\n
RECITALS<\/p>\n
A. Licensee has been granted a license to certain NCI technology
\n under the terms and subject to the conditions set forth in the OEM
\n License Agreement.<\/p>\n
B. The parties desire to amend the OEM License Agreement as set forth
\n in this Amendment No. 1.<\/p>\n
C. All capitalized terms not defined herein shall have the meanings
\n given them in the OEM License Agreement.<\/p>\n
NOW, THEREFORE, in consideration of the mutual covenants and agreements
\ncontained herein, and other good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, the parties hereby agree as
\nfollows:<\/p>\n
1. Section 1.9 of the OEM License Agreement is hereby amended by deleting
\n said Section and replacing it with the following:<\/p>\n
“1.9 “BUNDLED PRODUCT” means one or more products
\n developed by Licensee that consists of the Licensee Product
\n and any portion of the NCI Product, subject to the
\n applicable limitations set forth in this Agreement.”<\/p>\n
2. Section 1.26 of the OEM License Agreement is hereby amended by deleting
\n said Section and replacing it with the following:<\/p>\n
“1.26. “CUSTOMER” means a third party entity that enters
\n into a Distributor Agreement (as defined below), excluding
\n the Excluded Accounts (as defined below) only in the case
\n where such third party entity is or intends to license or
\n distribute TV Products (as defined below).”<\/p>\n
3. Section 1 of the OEM License Agreement is hereby amended by adding the
\n following subsections to the end of said Section:<\/p>\n
“1.30 “Excluded Accounts” shall mean internet service
\n providers, pay television operators (including, without
\n limitation, cable companies and satellite television
\n companies) and Specified Accounts. <\/p>\n
1.31 “Specified Accounts” shall mean those third parties
\n set forth on Exhibit A hereto which the parties acknowledge
\n and agree (i) NCI shall retain an exclusive relationship
\n with, and (ii) Licensee shall not distribute the Bundled
\n Products to or through.” <\/p>\n
1.32 “TV Products shall mean products that contain all or
\n part of TV <\/p>\n
1<\/p>\n
Navigator, DTV Navigator and\/or eNavigator where the intended
\n use of such products is for television display.”<\/p>\n
4. Section 2.1.1(iii) of the OEM License Agreement is hereby amended by
\n deleting the entire third paragraph of said Section (which begins,
\n “Notwithstanding anything else in this Agreement or the attachments and
\n exhibits hereto, Licensee hereby agrees that it shall not modify the NCI
\n Source Code…”) and replace it with the following:<\/p>\n
“Licensee may modify the NCI Source Code and\/or
\n Distributable Source as provided in this Section 2.1.1 to
\n create a Bundled Product that utilizes a television display
\n (e.g., a display that is commonly referred to as a
\n television, or supports television formats such as NTSC,
\n PAL, SECAM, HDTV formats, or other new formats derived
\n therefrom), provided such Bundled Product does not present
\n Enhanced Television. “Enhanced Television” shall be deemed
\n present if HTML, Javascript, or any portion of the NCI
\n Product is utilized for any of the purposes below. <\/p>\n
(1) Overlay\/merging of a video or television signal with
\n a web application;
\n (2) Scaling of video (e.g. “Picture in a Picture”);
\n (3) Accessing data located in the VBI, MPEG or other
\n in\/out of band video stream;
\n (4) Controlling any functions of the television or
\n television device (including, but not limited to,
\n tuning the channel, displaying channel information,
\n IR blasting, One Touch record to a VCR);
\n (5) Integrating any of the emerging television data
\n transport protocols with the browser or browser-
\n based application (including, but not limited to,
\n Intercast, Wink, ATVEF, DVB, MHEG and ATSC); or
\n (6) Manipulating any of the television system
\n information (SI) information, Conditional Access
\n System, or NVOD, VOD, PPV, and IPPV functions.”<\/p>\n
5. Section 2.1.1 of the OEM License Agreement is hereby amended by adding
\n the following subsection to the end of said Section:<\/p>\n
“(iv) Notwithstanding anything in the foregoing subsection
\n 2.1.1(iii), a non-exclusive, perpetual, irrevocable (except
\n as provided in Section 13), non-transferable, non-
\n assignable right and license, subject to payment of the
\n Royalties hereunder, to distribute (directly or indirectly
\n through Distributors) and sublicense (via Distributor
\n Agreements) the NCI Product and Distributable Source,
\n solely as incorporated in the Bundled Product, to Customers
\n and Distributors, and to distribute (directly or indirectly
\n through Distributors) and sublicense the NCI Product and
\n Distributable Source, solely as incorporated in the Bundled
\n Product, to End Users, in the Territory for Full Web
\n Browsing purposes. “Full Web Browsing” shall mean Web
\n Browsing and Directed Browsing. “Web Browsing” shall mean
\n any mechanism that is used to display HTML or other
\n Internet data via a network connection using standard
\n Internet connection protocols such as HTTP or other current
\n or future Internet protocols as defined by the W3C from
\n time to time. “WC3” is an organization that is generally
\n accepted by the industry as the authority for internet
\n standards. <\/p>\n
All versions of the Bundled Product enabling Full Web
\n Browsing will contain the following elements to enable
\n NCI’s Custom Connect Server, including any subsequent
\n versions and updates thereto (“Custom Connect Server”) to
\n manage <\/p>\n
2<\/p>\n
the client. The API’s necessary to enable this functionality
\n are found in three key areas: <\/p>\n
– HTTP based protocols;
\n – Javascript functions; and
\n – mime types. <\/p>\n
These API’s enable the device to be administered by and to
\n store data on trusted servers. These include, but are not
\n limited to, the following protocols, mime types and
\n functions:<\/p>\n
– Obtaining, verifying and using trust rules (i.e.,
\n the rules that determine which distinguished hosts
\n can be trusted for which function) No host or object
\n that is not certified by the trust rules may access
\n those functions. The functions that require trust
\n information include, but are not limited by:
\n – Providing trusted content (i.e.,
\n content that may execute restricted
\n Javascript functions or mime types
\n – Signing updates of the eNavigator
\n system software
\n – Signing eNavigator application
\n software
\n – Making an HTTP\/SSL connection;
\n – Setting the current time, local time zone, and
\n daylight savings time information;
\n – Uploading client error information to be logged on
\n the server;
\n – Discovering and downloading new software versions
\n that are available on the server;
\n – Accessing and storing server resident persistent
\n storage;
\n – Accessing and storing client resident persistent
\n storage;
\n – Periodic and automatic dialing and getting of URLs;
\n – Changing the user context of the client device;
\n – Setting the contact information for the device —
\n phone numbers, PPP login and passwords, DNS
\n addresses, well-known URLs;
\n – Uploading of device usage information to a trusted
\n server;
\n – Recognizing the client as a derivative product of a
\n particular version of TV Navigator using a special
\n form of the HTTP User Agent string; and
\n – Recognizing the client as being produced for a
\n particular original equipment manufacturer (“OEM”).
\n This allows OEM-specific content to be easily sent
\n to that client. This can be done by acquiring an
\n OEM ID from NCI to be inserted in the HTTP User
\n Agent string. <\/p>\n
Each Bundled Product enabling Full Web Browsing shall
\n contain the complete set of functionality, including the
\n functionality listed above, provided in the applicable NCI
\n Product (“Certification Functionality”), if technically
\n feasible. Each release of the Bundled Product enabling Full
\n Web Browsing provided by Licensee must pass the NCI
\n Certification Process. Licensee shall not remove, disable
\n or modify the Certification Functionality in the NCI
\n Products and shall ensure that the Certification
\n Functionality cannot be removed, disabled or modified by
\n any third party.”<\/p>\n
The NCI Certification Process consists of:<\/p>\n
3<\/p>\n
(a) Compatibility with:<\/p>\n
– Specified versions of the Custom Connect Server
\n – Well known public Web sites specified by NCI
\n – A set of canned test pages<\/p>\n
(b) Licensee shall certify that the Bundled Product
\n enabling Full Web Browsing is certified with the same
\n version of the Custom Connect Server, well known public Web
\n sites specified by NCI and canned test pages, as the
\n applicable NCI Product (from which such Bundled Product
\n enabling Full Web Browsing was derived) was certified. NCI
\n will provide only to Licensee technical support services in
\n connection with the Certification Process which shall
\n include reasonable installation assistance, initial
\n training, and other reasonable mutually agreed upon
\n technical support services in order for Licensee to setup
\n and perform Certification Testing of Bundled Products
\n enabling Web Browsing. <\/p>\n
(c) As part of the NCI Certification Process, NCI will make
\n available to Licensee, with each release of an NCI Product:<\/p>\n
– A reasonable number of free copies of the
\n production versions of the Custom Connect
\n Server and associated documentation (not to
\n exceed five (5) copies)
\n – Copies of NCI test pages and URLs of the well known
\n public Web sites specified by NCI<\/p>\n
Compatibility testing for the Bundled Product enabling Full
\n Web Browsing with the production versions of Custom Connect
\n Server, well known public Web sites specified by NCI, and
\n canned test pages shall be performed by Licensee. With
\n each Bundled Product enabling Full Web Browsing, NCI may
\n ask to monitor these tests, in which case Licensee will re-
\n perform the tests in NCI’s presence within two (2) weeks of
\n NCI’s request. <\/p>\n
6. Section 2.1.2 of the OEM License Agreement is hereby amended by adding
\n the following to the end of the first sentence: “…, or Full Web
\n Browsing.”<\/p>\n
7. Section 2 of the OEM License Agreement is hereby amended by adding the
\n following subsection to the end of said Section:<\/p>\n
“2.5 LICENSE TO DISTRIBUTE NCI TV NAVIGATOR AND NCI DTV
\n NAVIGATOR. Notwithstanding anything to the contrary
\n contained in Section 2.1.1(iii) (but subject to all the
\n other terms and conditions of this Agreement), NCI hereby
\n grants and Licensee hereby accepts, a non-exclusive, , non-
\n transferable, non-assignable license for TV Navigator
\n Period and right in the Territory to (i) to distribute the
\n object code version of the TV Navigator and DTV Navigator,
\n solely as incorporated in the Bundled Product to
\n Customers, (ii) modify solely for porting the NCI TV
\n Navigator and NCI DTV Navigator to the Licensee Products,
\n and (iii) to sublicense solely to Customers the right (a)
\n to reproduce the Bundled Product incorporating TV Navigator
\n and DTV Navigator, solely in connection with the
\n reproduction of Customer Bundled Products, and (b)
\n distribute in the Territory such Customer Bundled Products
\n directly or indirectly to End Users, provided that Licensee
\n enters into written Distributor Agreements with such
\n Customers “Customer Bundled Products” shall mean one or
\n more products developed by an Customer that consists of
\n the Bundled Product and such Customer’s hardware. The “TV
\n Navigator Period” shall <\/p>\n
4<\/p>\n
commence as of the Amendment 1 Effective Date and shall
\n continue unless, after a period of four (4) years from the
\n Amendment 1 Effective Date, either party provides the other
\n party with one (1) year written notice of termination.”<\/p>\n
8. Section 2.4 of the OEM License Agreement is hereby amended by adding the
\n following to the end of said Section:<\/p>\n
“Subject to the terms and conditions of this Agreement, NCI
\n hereby grants and Licensee hereby accepts a paid up, worldwide,
\n non-exclusive, perpetual, irrevocable (except as provided in
\n Section 13), non-transferable, non-assignable right and license
\n (with the right to sublicense solely to Customers the right and
\n license) to use, modify, and reproduce the End User
\n Documentation, and to distribute to End Users through Customers
\n the End User Documentation, solely in conjunction with the
\n Customer Bundled Products.”<\/p>\n
9. Section 3.2 of the OEM License Agreement is hereby amended by adding the
\n following to the end of said Section:<\/p>\n
“Licensee shall actively promote the NCI Server Software and
\n promptly notify NCI of sales leads. NCI shall, upon Licensee’s
\n written request, supply Licensee with a reasonable number of
\n copies of the applicable product literature and promotional
\n materials for the NCI Server Software.”<\/p>\n
10. Section 3 of the OEM License Agreement is hereby amended by adding the
\n following to the end of said Section:<\/p>\n
“3.6 SDKs.
\n 3.6.1 NCI shall consult with Licensee with respect to
\n specifications for NCI’s TV Navigator software development
\n kit and DTV Navigator software development kit (if and when
\n available) including Licensee’s Tornado development tools
\n which are released subsequent to the Amendment 1 Effective
\n Date and NCI shall consult with Licensee with respect to
\n the implementation of such specifications. Notwithstanding
\n the foregoing, the parties acknowledge that all final
\n decisions with respect NCI’s TV Navigator software
\n development kit and DTV Navigator software development kit
\n shall reside with NCI. The TV Navigator software
\n development kit that NCI develops pursuant to this Section
\n 3.6.1 shall be the only version of software development kit
\n containing NCI’s TV Navigator software and Licensees’
\n Tornado development tools that either party will be
\n permitted to develop during the term of this Agreement.”<\/p>\n
3.6.2 NCI hereby grants to Licensee a non-exclusive, ,
\n non-transferable, worldwide right and license for the TV
\n Navigator Period to, and to sublicense solely to Customers
\n the right to, use one (1) development seat per TV Navigator
\n software development kit (“NCI SDK Development Seat”) for
\n the following purposes in accordance with the terms and
\n conditions set forth herein and in the applicable software
\n development kit license agreement (a current version of
\n which is attached as Exhibit B hereto) (“SDK License
\n Agreements”): to integrate a Customer’s hardware with the
\n Bundled Product. All sublicenses of the TV Navigator
\n software development kit granted by Licensee to Customers
\n as provided in this Section shall be pursuant to written
\n SDK License Agreements. In consideration for such license,
\n Licensee shall pay to NCI a <\/p>\n
5<\/p>\n
license fee of [***]* dollars ($[***]*) per NCI SDK
\n Development Seat licensed which amount shall be due within
\n thirty (30) days following the end of the quarter in which the
\n license fees for such NCI SDK Development Seats are due to
\n Licensee (which is forty-five (45) days after the date of
\n Licensee’s invoice) (“Licensee Payment Accrual Date”). In the
\n event that (i) Licensee has paid for a NCI SDK Development
\n Seat(s), (ii) Licensee does not receive payment from the
\n Customer(s) for such NCI SDK Development Seat(s), and (iii) has
\n the NCI SDK returned to Licensee (“Returned SDK Seat”) within
\n forty-five (45) days of the Licensee Payment Accrual Date, NCI
\n will credit Licensee’s account in the amount of such Returned
\n SDK Seat, which may be applied against future license fees for
\n NCI SDK Development Seats for a period of one (1) year.
\n Licensee shall refer any requests for additional NCI SDK
\n Development Seat licenses and any maintenance and technical
\n support for the NCI SDK Development Seat to NCI.”<\/p>\n
11. Section 4.1.1 of the OEM License Agreement is hereby amended by deleting
\n the third sentence in said Section and replacing it with the following:<\/p>\n
“Licensee shall pay NCI any Royalties accrued hereunder
\n during each quarter (as defined in Section 4.1 of the
\n Agreement) within thirty (30) days following the end of
\n such quarter and each such payment shall be accompanied by
\n a quarterly report as described in Section 4.3 below.”<\/p>\n
12. Section 4.3 of the OEM License Agreement is hereby amended by deleting
\n said Section and replacing it with the following:<\/p>\n
“Licensee shall report to NCI within thirty (30) calendar
\n days after the end of each quarter, the type of Bundled
\n Product and\/or Updates distributed directly or indirectly
\n to each Customer (and End User, as applicable) during such
\n quarter, organized in a manner to permit a separate review
\n of Bundled Product and Updates, the postal codes of each
\n such Customer (and End User, as applicable), the number of
\n copies and type of Bundled Product (by platform) used
\n internally by Licensee for the first time during such
\n quarter, and such other information as NCI may from time to
\n time reasonably request.”<\/p>\n
13. Section 13.4 of the OEM License Agreement is hereby amended by adding the
\n following subsection to the end of said Section:<\/p>\n
“13.4.3 In the event that the licenses granted in
\n Section 2.5 are terminated by either party pursuant to
\n Section 2.5, and provided Licensee fulfills its obligations
\n specified in this Agreement with respect to such items,
\n Licensee may continue to use and retain copies of the
\n applicable NCI Product and End User Documentation, but only
\n for a period of five (5) years following the effective date
\n of such termination and only to the extent, necessary to
\n support and maintain the Bundled Product rightfully
\n distributed to End Users and Customers by Licensee,
\n directly or indirectly through Distributors, prior to
\n termination of this Agreement. After such five (5) year
\n period, Licensee shall, at NCI’s option, either deliver to
\n NCI or destroy all copies of the applicable NCI Product and
\n End User Documentation and any other materials provided by
\n NCI to Licensee with respect thereto and shall furnish to
\n NCI an affidavit signed by an officer of Licensee
\n certifying that, to the best of its knowledge, such
\n delivery or destruction has been fully effected. For the
\n avoidance of doubt, termination of the licenses granted in
\n Section 2.5 shall not terminate this Agreement, but<\/p>\n
————–
\n* Confidential Treatment Requested. Confidential portion has been filed with
\n the Securities and Exchange Commission.<\/p>\n
6<\/p>\n
termination of this Agreement shall terminate the licenses
\n granted in Section 2.5. For the two (2) year period
\n following the date of termination of the licenses granted
\n in Section 2.5 and provided Licensee pays to NCI the
\n applicable Services Fees, NCI will provide the maintenance
\n and technical support services for the version of the NCI
\n TV Navigator and NCI DTV Navigator (as applicable) current
\n as of the date of such termination. In the event that as
\n of the date of such termination, Licensee’s most current
\n version is an earlier version of the NCI TV Navigator and
\n NCI DTV Navigator (as applicable), NCI shall only support
\n such earlier version for two (2) years from Licensee’s
\n receipt of such earlier version.”<\/p>\n
14. Section 14.3 of the OEM License Agreement is hereby amended by replacing
\n “Directed Browsing” with “Full Web Browsing” in each instance where it
\n appears in said Section.<\/p>\n
15. Attachment A of the OEM License Agreement is hereby amended by deleting
\n the definition of NCI Product and replacing it with the following:<\/p>\n
\n
\n “NCI Product: NCI eNavigator-TM- Version 1.1 derived
\n from TV Navigator-TM- (“eNavigator”),
\n including Updates thereto;<\/p>\n NCI TV Navigator (“TV Navigator”),
\n including Updates thereto; <\/p>\n
NCI DTV Navigator if and when
\n available (“DTV Navigator”), including
\n Updates thereto.”
\n<\/c><\/s><\/table>\n
16. Attachment A of the OEM License Agreement is hereby amended by deleting
\n the definition of Embedded Graphics Usage and replacing it with the
\n following:<\/p>\n
“Embedded Graphics Usage” shall mean any use by Licensee of
\n the eNavigator Graphics Technology (as defined below),
\n provided that (a) such use of the eNavigator Graphics
\n Technology is solely in connection with the creation of a
\n non-Internet application, and (b) the eNavigator Graphics
\n Technology (as defined below) is not utilized to create or
\n in conjunction with any product marketed, distributed or
\n developed by Licensee that is a network browser or
\n otherwise competes with the NCI Product as it exists on the
\n date NCI delivers the Deliverables to Licensee, and (c) any
\n use of the HTML code is solely for the development of
\n static (meaning a device that does not permit downloading
\n of new content or user interfaces from a network),user
\n interface displays. The HTML code referred to in (c) above
\n may only be distributed in object code form. The
\n “eNavigator Graphics Technology” shall be limited to the
\n following components of the NCI Product: (i) the Window
\n Manager, (ii) the binary code for the Javascript engine,
\n (iii) the 2D Graphics library, and (iii) the UI Widget
\n library, (iv) the text library and (v) the binary HTML code
\n for the NCI Products. The source code for the foregoing
\n components are herein referred to as the NCI Source Code
\n for Embedded Graphics Usage. Notwithstanding anything in
\n this Agreement to the contrary Licensee shall have no right
\n to use the Embedded Graphics Usage in conjunction with
\n televisions with Full Web Browsing or to create any form of
\n a television “browser application”. Notwithstanding
\n anything in this Agreement to the contrary, Licensee shall
\n have no rights to distribute source code for the Javascript
\n engine or the Bitstream font <\/p>\n
7<\/p>\n
technology.” <\/p>\n
17. Attachment A of the OEM License Agreement is hereby amended by adding the
\n source header files set forth on Exhibit D hereto to the end of the
\n section entitled “SDK Source Headers”.<\/p>\n
18. Attachment A of the OEM License Agreement is hereby amended by adding the
\n following to the end of the section entitled “Deliverables”:<\/p>\n
\n
\n “Description Estimated Delivery Date
\n NCI TV Navigator 1.2 within 14 days following the
\n Amendment 1 Effective Date
\n DTV Navigator if and when available”
\n<\/c><\/s><\/table>\n19. Attachment B of the OEM License Agreement is hereby amended by adding the
\n following to the end of the Section entitled “Pricing”:<\/p>\n
\n
\n “Amendment 1
\n Prepaid Royalty: Licensee shall pay to NCI a
\n non-refundable, non-cancelable
\n prepayment of Royalties for
\n Full Web Browsing in the amount
\n of $[***]* payable as
\n follows: $[***]* upon the
\n Amendment 1 Effective Date,
\n $[***]* on or before December
\n 31, 1998, and $[***]* on or
\n before May 15, 1999.”
\n<\/c><\/s><\/table>\n20. Attachment B of the OEM License Agreement is hereby amended by deleting
\n the definition of “Prepaid License Fee” and replacing it with the
\n following:<\/p>\n
\n
\n ” – Prepaid License Fee: The parties acknowledge and
\n agree that Licensee has paid to
\n NCI a prepaid license fee in
\n the amount of $[***]* for
\n royalties on Tier II Directed
\n Browsing applications. The
\n parties also acknowledge and
\n agree that such $[***]* is
\n no longer considered to be a
\n prepayment of royalties as set
\n forth in the foregoing sentence
\n but is hereby deemed to be a
\n one-time non-refundable, non-
\n cancelable, non-recoupable
\n license fee in consideration
\n for the rights granted herein
\n with respect to Embedded
\n Graphics and Directed
\n Browsing.”
\n<\/c><\/s><\/table>\n21. Attachment B of the OEM License Agreement is hereby amended by deleting
\n the definition of “Royalties” and replacing it with the definition set
\n forth on Exhibit C hereto.<\/p>\n
22. This Amendment No. 1 shall be deemed to be incorporated into the OEM
\n License Agreement and made a part thereof. All references to the OEM
\n License Agreement in any other document shall be deemed to refer to the
\n OEM License Agreement as modified by this Amendment No. 1. Except as
\n modified by this Amendment No. 1, the OEM License Agreement shall remain
\n in full force and effect and shall be enforceable in accordance with its
\n terms. In the event that the terms of this Amendment No. 1 conflict with
\n the terms of the OEM License Agreement, or its exhibits, as amended, the
\n terms of this Amendment No. 1 shall be deemed to govern.<\/p>\n
————–
\n* Confidential Treatment Requested. Confidential portion has been filed with
\n the Securities and Exchange Commission.<\/p>\n
8<\/p>\n
23. This Amendment No. 1 may be executed in counterparts, each of which shall
\n be deemed an original, but all of which shall constitute one and the same
\n document.<\/p>\n
24. Section 2.1.4 of the OEM License Agreement is hereby amended by adding
\n the following to the last sentence: between the word “Usage” and
\n “capabilities” add “, or Full Web Browsing”. <\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be
\nduly executed as of the Amendment 1 Effective Date.<\/p>\n
“NCI” “Licensee”<\/p>\n
Network Computer, Inc. Wind River Systems, Inc.<\/p>\n
By: By:
\n ——————————- ——————————-
\nPrint Name: Print Name:
\n ———————– ———————–
\nTitle: Title:
\n —————————- —————————-<\/p>\n
9<\/p>\n
EXHIBIT A<\/p>\n
SPECIFIED ACCOUNTS<\/p>\n
“Specified Accounts” shall refer to the entities listed below. NCI will, within
\none month following the Amendment 1 Effective Date, provide Licensee with an
\nupdated list of Specified Accounts which will be updated to include certain of
\nthe below listed entities’ subsidiaries and which shall amend this Exhibit A.<\/p>\n
[***]<\/p>\n
If Wind River intends to become involved in a design of a Bundled Product with
\none of the Specified Accounts (“Proposed Relationship”), Wind River will notify
\nNCI in writing (to NCI’s General Counsel and Senior Director of OEM Sales)
\nrequesting approval to proceed with the Proposed Relationship prior to
\napproaching the Specified Account. Such notice shall include the name of the
\nSpecified Account, contact and project information. If NCI is not currently
\nengaged in business discussions for the same or related projects with the
\nSpecified Account, then NCI’s approval shall not be unreasonably withheld. NCI
\nagrees to respond to such requests for approval within five (5) business days of
\nNCI’s acknowledgement by NCI’s Senior Director of OEM Sales of receipt of such a
\nrequest, after which the Proposed Relationship will be deemed approved.<\/p>\n
[***] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
10<\/p>\n
Exhibit B<\/p>\n
NCI TV NAVIGATOR-TM- SDK LICENSE AGREEMENT<\/p>\n
The following terms shall apply to any NCI NAVIGATOR SOFTWARE DEVELOPMENT
\nTOOLKITs licensed to ISP (referred to as “Licensee”) hereunder. <\/p>\n
REDISTRIBUTION OF THIS SOFTWARE DEVELOPMENT TOOLKIT (“SDK”) OR ANY DOCUMENTATION
\nPROVIDED TO LICENSEE BY NCI IS STRICTLY PROHIBITED. REDISTRIBUTION OF ANY
\nRESULTS CREATED USING THIS SDK ARE PROHIBITED UNLESS SUCH RIGHT HAS BEEN GRANTED
\nPURSUANT TO A WRITTEN LICENSE AGREEMENT EXECUTED BY NCI AND LICENSEE (THE
\n“RESELLER AGREEMENT”) AND THEN ONLY AS LICENSED THEREBY.<\/p>\n
THE MEDIA CONTAINED IN THIS PACKAGE INCLUDE A NUMBER OF SEPARATE PROGRAMS,
\nINCLUDING THE TORNADO FOR NCI TV NAVIGATOR, ADD-ON COMPONENTS AND TOOL PROGRAMS
\nFOR USE WITH TORNADO FOR NCI TV NAVIGATOR, AND THE NCI TV NAVIGATOR SYSTEM
\nCOMPONENTS. LICENSEE IS PERMITTED TO USE ONLY THOSE PROGRAMS FOR WHICH LICENSEE
\nHAS PAID THE LICENSE FEE AND OBTAINED A PASS KEY FROM NCI ALLOWING LICENSEE
\nACCESS TO THE PROGRAM. LICENSEE HAS NOT LICENSED A PROGRAM UNTIL LICENSEE HAS
\nPAID THE LICENSE FEE AND OBTAINED THE PASS KEY. FURTHERMORE, LICENSEE’S USE OF
\nTHIS SDK IS SUBJECT TO ALL THE TERMS AND CONDITIONS SET FORTH BELOW.<\/p>\n
LICENSE.<\/p>\n
This SDK is licensed, not sold, to Licensee for use only under the terms of this
\nagreement, and NCI and its licensors reserve all rights not expressly granted to
\nLicensee. Licensee owns the media on which this SDK was originally fixed, but
\nNCI and its licensors retain ownership of all copies of the programs comprising
\nthis SDK (collectively the “Programs”). Licensee (the original licensee of this
\nSDK) may:<\/p>\n
(a) use this SDK on a single computer by one user at a time. Use is limited to
\ndevelopment of the Product or Products as defined in the Reseller Agreement
\nwhich may only be performed at the site set forth herein or, if applicable, only
\nat the location of Licensee’s principal office as set forth in the Reseller
\nAgreement. Furthermore, use is limited to development for a Product or Products
\nwhich execute on a single target architecture, as set forth herein or, if
\napplicable, the target architecture set forth in the Reseller Agreement. The
\nnumber of authorized seats may be increased only upon approval of NCI and
\npayment of additional license fees.
\n(b) make one copy of Tornado for NCI TV Navigator or Tornado for NCI TV
\nNavigator Component Program licensed by Licensee or portions thereof except for
\nthe directory “bin”, sub directory “h”, and the files entitled “makefile” in
\ndirectories “config\/all” and “config\/(target)”. Such copy shall be in tangible
\nobject code form only for physical incorporation into a Product or Products as
\ndefined in the Reseller Agreement that Licensee develops using this SDK,
\nprovided that such copy includes a reproduction of any notices appearing in or
\non the programs included in this SDK. Such copy shall be used for development
\nprocesses only and be accessed only as part of the Target Application and not on
\na stand alone or independent basis.
\n(c) make one copy of any licensed programs in tangible object code form for
\npurposes of backup; provided that such copy includes a reproduction of any
\nnotices appearing in or on such program.<\/p>\n
LICENSE RESTRICTIONS.<\/p>\n
(a) Unauthorized copying of this SDK, the Programs or the written materials
\nincluded in this package is expressly forbidden. Licensee may be held legally
\nresponsible for any copyright infringement which is caused or encouraged by
\nLicensee’s failure to abide by the terms of this agreement.
\n(b) Licensee may not market, distribute, or transfer copies of this SDK or the
\nProgram to others or electronically transfer this SDK or the Programs from one
\ncomputer to another over a network.
\n(c) Licensee may not: (i) permit other individuals to use this SDK or the
\nPrograms; (ii) modify, translate, reverse engineer, decompile, disassemble
\n(except to the extent applicable laws specifically prohibit such restriction),
\nor create derivative works based on this SDK or the Programs; (iii) copy this
\nSDK or the Programs (except as expressly provided herein); (iv) rent, lease,
\ngrant a security interest in, or otherwise transfer rights to this SDK or the
\nPrograms; or (v) remove any proprietary notices or labels in or on this SDK or
\nthe Programs.
\n(d) Licensee understands that NCI and its licensors may update or revise this
\nSDK and\/or the Programs and in so doing incurs no obligation to furnish such
\nupdates to Licensee unless Licensee has purchased current support and
\nmaintenance services from <\/p>\n
11<\/p>\n
NCI as described in the section below titled Technical Support.
\n(e) Use of this SDK and the Programs is subject to proper AND complete
\ninstallation of the NCI TV Navigator System Components pursuant to the
\ninstructions and procedures provided to Licensee by NCI.
\n(f) Upon transfer of this SDK, any Program or any copy thereof, the licensed
\ngranted hereunder shall terminate immediately.
\n(g) Unless otherwise agreed by the parties in writing, any and all development
\nby Licensee of device drivers must be performed at NCI’s premises.<\/p>\n
To the extent European Economic Community (“EEC”) law is applicable, the above
\nrestrictions on reverse engineering, decompiling, disassembling or reducing any
\nmachine-readable software or component to human-readable form is limited so that
\nit prohibits such activity only to the maximum extent such activity may be
\nprohibited without violating the EEC Directive on the legal protection of
\ncomputer programs.<\/p>\n
HARDWARE LOANS.<\/p>\n
In the event that NCI has provided Licensee any hardware (including, without
\nlimitation, the NCI Reference Platform) for use with the SDK, Licensee shall
\nreturn to NCI any such hardware immediately upon the earlier of (i) NCI’s
\nwritten request to Licensee or (ii) the date agreed upon by the parties in any
\nseparate written agreement for the return of such hardware. NCI shall retain
\nall right, title and interest in and to such hardware at all times, including,
\nwithout limitation, the period while such hardware is located at Licensee’s
\nfacilities. <\/p>\n
DISCLAIMER OF WARRANTY.<\/p>\n
THIS SDK IS PROVIDED ON AN “AS IS” BASIS. NCI AND ITS LICENSORS EXPRESSLY
\nDISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE
\nWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
\nINFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS SDK AND
\nANY RESULTS CREATED USING THIS SDK IS BORNE BY LICENSEE. IN ADDITION, THE
\nSECURITY MECHANISMS IMPLEMENTED BY THIS SDK AND RESULTS GENERATED THROUGH ITS
\nUSE HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE SDK AND SUCH
\nRESULTS SUFFICIENTLY MEET LICENSEE’S SECURITY REQUIREMENTS. THIS DISCLAIMER OF
\nWARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME JURISDICTIONS DO
\nNOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY
\nAND LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.<\/p>\n
TITLE.<\/p>\n
Title, ownership rights, and intellectual property rights in this SDK and the
\nPrograms shall remain in NCI and\/or its licensors. This SDK is protected by the
\ncopyright laws and treaties. <\/p>\n
CONFIDENTIALITY.<\/p>\n
NCI and its licensors consider this SDK and the Programs to contain valuable
\ntrade secrets of NCI and its licensors, the unauthorized disclosure of which
\ncould cause irreparable harm to NCI and\/or its licensors. Licensee agrees to
\nuse reasonable efforts not to disclose the Programs to any third parties and not
\nto use the Programs other than for the purposes authorized by this Agreement.
\nThis confidentiality obligation shall continue after any termination of this
\nAgreement.<\/p>\n
TERMINATION.<\/p>\n
This Agreement is effective until terminated. The Sections of this Agreement
\ntitled License Restrictions, Disclaimer of Warranty, Limitation of Liability,
\nTitle, Confidentiality and Miscellaneous shall survive any termination or
\nexpiration of this Agreement. This Agreement will terminate automatically upon
\nLicensee’s failure to comply with any of the limitations described herein or in
\nthe Reseller Agreement by and between NCI and Licensee. <\/p>\n
Licensee hereby acknowledges that unless and until Licensee enters into a
\nReseller Agreement, Licensee shall use the SDK solely for its internal
\nevaluation purposes.<\/p>\n
On any termination or expiration of this Agreement, Licensee must, at NCI’s
\noption, return or destroy the SDK, any documentation provided by NCI and any
\ncopies thereof and shall return to NCI all hardware (including, without
\nlimitation, the NCI Reference Profile), if any, provided by NCI to Licensee for
\nuse with the SDK.<\/p>\n
EXPORT CONTROLS.<\/p>\n
12<\/p>\n
None of this SDK or any underlying information or technology may be
\ndownloaded or otherwise exported or reexported (i) into (or to a national or
\nresident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any
\nother country to which the U.S. has embargoed goods; or (ii) to anyone on the
\nU.S. Treasury Department’s list of Specially Designated Nationals or the U.S.
\nCommerce Department’s Table of Denial Orders. By using this SDK, Licensee is
\nagreeing to the foregoing and Licensee is representing and warranting that
\nLicensee is not located in, under the control of, or a national or resident
\nof any such country or on any such list.<\/p>\n
SUPPORT AND MAINTENANCE.<\/p>\n
Upon mutual agreement of the parties and subject to NCI’s standard support
\nand maintenance terms and conditions (including payment of NCI’s then-current
\nsupport and maintenance fees), NCI shall provide to Licensee support and
\nmaintenance for the SDK licensed hereunder.<\/p>\n
LIMITATION OF LIABILITY.<\/p>\n
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR
\nOTHERWISE, SHALL NCI OR ITS LICENSORS BE LIABLE TO LICENSEE OR ANY OTHER
\nPERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
\nCHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK
\nSTOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL
\nDAMAGES OR LOSSES. IN NO EVENT WILL NCI BE LIABLE FOR ANY DAMAGES IN EXCESS
\nOF THE AMOUNT NCI RECEIVED FROM LICENSEE FOR A LICENSE TO THIS SDK, EVEN IF
\nNCI SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY
\nCLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO
\nLIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS
\nSUCH LIMITATION. FURTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION
\nOR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND
\nEXCLUSION MAY NOT APPLY TO LICENSEE. THE WARRANTY DISCLAIMERS AND LIMITATION
\nOF LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN
\nLICENSEE AND NCI.<\/p>\n
HIGH RISK ACTIVITIES.<\/p>\n
The SDK and results created using the SDK are not fault-tolerant and is not
\ndesigned, manufactured or intended for use or resale as on-line control
\nequipment in hazardous environments requiring fail-safe performance, such as
\nin the operation of nuclear facilities, aircraft navigation or communication
\nsystems, air traffic control, direct life support machines, or weapons
\nsystems, in which the failure of the SDK and results created using the SDK
\ncould lead directly to death, personal injury, or severe physical or
\nenvironmental damage (“High Risk Activities”). NCI and its licensors
\nspecifically disclaim any express or implied warranty of fitness for High
\nRisk Activities. <\/p>\n
MISCELLANEOUS.<\/p>\n
This Agreement represents the complete agreement concerning this license and
\nmay amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY
\nPURCHASE ORDER PLACED BY LICENSEE IS EXPRESSLY MADE CONDITIONAL ON LICENSEE’S
\nASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE IN LICENSEE’S PURCHASE
\nORDER. If any provision of this Agreement is held to be unenforceable, such
\nprovision shall be reformed only to the extent necessary to make it
\nenforceable and the remaining provisions of this Agreement will not be
\naffected or impaired in any way. This Agreement shall be governed by
\nCalifornia law without regard to the conflict of laws provisions thereof. The
\napplication the United Nations Convention of Contracts for the International
\nSale of Goods is expressly excluded. If any legal action or proceeding is
\nbrought for the enforcement of this Agreement, or because of any alleged
\ndispute, breach, default or misrepresentation in connection with any of the
\nprovisions of this Agreement, the successful or prevailing party shall be
\nentitled to recover reasonable attorneys’ fees and other costs incurred in
\nsuch action or proceeding, in addition to any other relief to which such
\nparty may be entitled.<\/p>\n
U.S. GOVERNMENT RESTRICTED RIGHTS.<\/p>\n
If this SDK is acquired by or on behalf of a unit or agency of the United
\nStates Government, this provision applies. If the Programs are acquired by or
\non behalf of a unit or agency of the United States Government, this provision
\napplies. The Programs: (a) were developed at private expense, are existing
\ncomputer software and no part of them were developed with government funds,
\n(b) are a trade secret of NCI or its licensors for all purposes of the
\nFreedom of Information act, (c) are “restricted computer software” submitted
\nwith restricted rights in accordance with subparagraphs (a) through (d) of
\nthe <\/p>\n
13<\/p>\n
Commercial Computer Software-Restricted Rights clause at 52.227-19 and its
\nsuccessors, (d) in all respects are proprietary data belonging solely to NCI
\nor its licensors, and (e)are unpublished and all rights are reserved under
\nthe copyright laws of the United States. For units of the Department of
\nDefense (DoD), the programs are licensed only with “Restricted Rights” as
\nthat term is defined in the DoD supplement to the Federal Acquisition
\nRegulation 252.227-7013 (c)(1)(ii), Rights in Technical Data and Computer
\nSoftware and its successors, and use, duplication or disclosure is subject to
\nrestrictions as set forth in subdivision (c)(1)(ii) of the Rights in
\nTechnical Data and Computer Software clause at 252.227-7013 or to NCI’s
\nstandard commercial license, as applicable. Contractor\/manufacturer is
\nNetwork Computer, Inc., 1000 Bridge Parkway, Redwood Shores, CA 94065. If
\nthe Programs are acquired under a GSA Schedule, the Government has agreed to
\nrefrain from changing or removing any insignia or lettering from the Programs
\nor the documentation as provided or from producing copies of manuals or media
\n(except for backup purposes).<\/p>\n
14<\/p>\n
EXHIBIT C<\/p>\n
PRICING<\/p>\n
“- Royalties: <\/p>\n
a) For Directed Browsing\/Embedded Graphics Applications
\n for eNavigator:<\/p>\n
\n\n=============================================================================
\n PRODUCT ROYALTY\/UNIT
\n—————————————————————————–
\n
\n Tier I: NCI eNavigator v1.1 for Directed
\n Browsing (excluding Tier II applications) NONE
\n—————————————————————————–
\n Tier II: NCI eNavigator v1.1 for Directed
\n Browsing Applications for Web Phones, Car
\n Navigation Systems, and Personal Digital
\n Assistants NONE
\n—————————————————————————–
\n Embedded Graphics Applications SEE BELOW
\n=============================================================================
\n NCI eNavigator v1.1 Source Code Access N\/A
\n=============================================================================
\n<\/c><\/s><\/caption>\n<\/table>\n In the event Licensee elects to include available third
\n party modules, Licensee agrees to pay optional third party
\n royalties at a [***]* percent ([***]*%) discount off of NCI’s
\n list price applicable to such optional modules provided
\n that such third party module is available from NCI in
\n source code form. Personal Java will be treated as an
\n optional third party module if available.<\/p>\n
Licensee shall make the following payments for distributing
\n units of the Bundled Product as follows:
\n (i) For any Bundled Product where the use of
\n eNavigator is restricted solely to Embedded Graphics Usage,
\n Licensee shall owe no additional Royalty hereunder.
\n (ii) For any Bundled Product licensed for any Tier
\n I Application or Tier II Application of Directed Browsing,
\n Licensee shall owe no additional Royalty hereunder.<\/p>\n
b) For Web Browsing:<\/p>\n
Licensee shall pay a Royalty on each unit of the
\n Bundled Product manufactured which includes
\n eNavigator and which provides Web Browsing
\n capabilities which shall be (i) at least [***]*% of
\n Licensee’s combined selling price for the Bundled
\n Product, (ii) at least [***]*% of Licensee’s selling
\n price for eNavigator, and (iii) subject to the
\n minimum per unit Royalties set forth below. Web
\n Browsing Royalties shall be due at the end of the
\n quarter of the applicable Licensee Payment Accrual
\n Date.<\/p>\n
————–
\n* Confidential Treatment Requested. Confidential portion has been filed with
\n the Securities and Exchange Commission.<\/p>\n
15<\/p>\n
\n\n——————————————————————————————
\n COMMITTED UNIT VOLUME MINIMUM ENAVIGATOR MINIMUM ENAVIGATOR
\n PER PROJECT Royalties per unit Royalties per unit of
\n of Bundled Product Bundled Product manufactured
\n manufactured not utilizing a television
\n utilizing a television display in any form, but do
\n display in any form not present Enhanced TV
\n——————————————————————————————
\n
\n First 1000 $[***]* $[***]*
\n——————————————————————————————
\n 1,001 – 2,499 $[***]* $[***]*
\n——————————————————————————————
\n 2,500 – 4,999 $[***]* $[***]*
\n——————————————————————————————
\n 5,000 – 9999 $[***]* $[***]*
\n——————————————————————————————
\n 10,000 – 24,999 $[***]* $[***]*
\n——————————————————————————————
\n 25,000 – 49,999 $[***]* $[***]*
\n——————————————————————————————
\n 50,000 – 99,999 $[***]* $[***]*
\n——————————————————————————————
\n 100,000 – 249,999 $[***]* $[***]*
\n——————————————————————————————
\n 250,000 – 499,999 $[***]* $[***]*
\n——————————————————————————————
\n 500,000 – 999,999 $[***]* $[***]*
\n——————————————————————————————
\n 1,000,000+ $[***]* $[***]*
\n——————————————————————————————
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n c) For TV and DTV Navigator (if and when available):<\/p>\n
Licensee will pay to NCI a royalty which is equal to
\n [***]* percent ([***]*%) of NCI’s then-current price
\n list for TV Navigator or DTV Navigator (if and when
\n available), as applicable, per each unit of the
\n Customer Bundled Product manufactured incorporating
\n the TV Navigator or the DTV Navigator (if and when
\n available). TV Navigator and DTV Navigator
\n Royalties shall be due at the end of the quarter of
\n the applicable Licensee Payment Accrual Date.”<\/p>\n
————–
\n* Confidential Treatment Requested. Confidential portion has been filed with
\n the Securities and Exchange Commission.<\/p>\n
16<\/p>\n
EXHIBIT D<\/p>\n
SOURCE HEADER FILES<\/p>\n
TVNavSDK\\include\\anim
\nTVNavSDK\\include\\AppError.h
\nTVNavSDK\\include\\appmod
\nTVNavSDK\\include\\AppMsg.h
\nTVNavSDK\\include\\arch
\nTVNavSDK\\include\\assert.h
\nTVNavSDK\\include\\aud
\nTVNavSDK\\include\\AudMsg.h
\nTVNavSDK\\include\\Base.h
\nTVNavSDK\\include\\bootLib.h
\nTVNavSDK\\include\\cAccntMan.h
\nTVNavSDK\\include\\cacheLib.h
\nTVNavSDK\\include\\CacheMan.h
\nTVNavSDK\\include\\capabilities.h
\nTVNavSDK\\include\\cAud.h
\nTVNavSDK\\include\\cCacheMan.h
\nTVNavSDK\\include\\cErrLog.h
\nTVNavSDK\\include\\CharSet.h
\nTVNavSDK\\include\\chat
\nTVNavSDK\\include\\cHwfHandlers.h
\nTVNavSDK\\include\\cI8042.h
\nTVNavSDK\\include\\cIspConnect.h
\nTVNavSDK\\include\\classLib.h
\nTVNavSDK\\include\\cNotifier.h
\nTVNavSDK\\include\\codeHeader.h
\nTVNavSDK\\include\\cRemote.h
\nTVNavSDK\\include\\ctype.h
\nTVNavSDK\\include\\DataWrapper.h
\nTVNavSDK\\include\\dbgLib.h
\nTVNavSDK\\include\\Destroyable.h
\nTVNavSDK\\include\\dir.txt
\nTVNavSDK\\include\\dllLib.h
\nTVNavSDK\\include\\errno.h
\nTVNavSDK\\include\\errnoLib.h
\nTVNavSDK\\include\\esf.h
\nTVNavSDK\\include\\excLib.h
\nTVNavSDK\\include\\fcntl.h
\nTVNavSDK\\include\\Fetcher.h
\nTVNavSDK\\include\\gfx
\nTVNavSDK\\include\\html
\nTVNavSDK\\include\\HtmlHandler.h
\nTVNavSDK\\include\\iCacheMan.h
\nTVNavSDK\\include\\int64.h
\nTVNavSDK\\include\\intl
\nTVNavSDK\\include\\intLib.h
\nTVNavSDK\\include\\ioLib.h
\nTVNavSDK\\include\\iosLib.h
\nTVNavSDK\\include\\iv.h
\nTVNavSDK\\include\\JisKbd.h
\nTVNavSDK\\include\\kernel
\nTVNavSDK\\include\\limits.h
\nTVNavSDK\\include\\liveConn
\nTVNavSDK\\include\\logLib.h
\nTVNavSDK\\include\\lstLib.h
\nTVNavSDK\\include\\Mail.h<\/p>\n
17<\/p>\n
TVNavSDK\\include\\MailNotHandler.h
\nTVNavSDK\\include\\math.h
\nTVNavSDK\\include\\media
\nTVNavSDK\\include\\memLib.h
\nTVNavSDK\\include\\mime
\nTVNavSDK\\include\\MimeHandler.h
\nTVNavSDK\\include\\MiscPlatformDep.h
\nTVNavSDK\\include\\module.h
\nTVNavSDK\\include\\navio.h
\nTVNavSDK\\include\\navioBoot.h
\nTVNavSDK\\include\\navioErr.h
\nTVNavSDK\\include\\navioInit.h
\nTVNavSDK\\include\\net
\nTVNavSDK\\include\\net.h
\nTVNavSDK\\include\\NviParamdef.h
\nTVNavSDK\\include\\objLib.h
\nTVNavSDK\\include\\PlatformInfo.h
\nTVNavSDK\\include\\PlatformInfoBitmask.h
\nTVNavSDK\\include\\portServices.h
\nTVNavSDK\\include\\PrintDriver.h
\nTVNavSDK\\include\\private
\nTVNavSDK\\include\\qClass.h
\nTVNavSDK\\include\\qLib.h
\nTVNavSDK\\include\\reg
\nTVNavSDK\\include\\regs.h
\nTVNavSDK\\include\\rngLib.h
\nTVNavSDK\\include\\Rtc.h
\nTVNavSDK\\include\\scriptSym
\nTVNavSDK\\include\\sec
\nTVNavSDK\\include\\selectLib.h
\nTVNavSDK\\include\\semLib.h
\nTVNavSDK\\include\\sioLib.h
\nTVNavSDK\\include\\SmartBoot.h
\nTVNavSDK\\include\\stdarg.h
\nTVNavSDK\\include\\stddef.h
\nTVNavSDK\\include\\stdio.h
\nTVNavSDK\\include\\stdlib.h
\nTVNavSDK\\include\\string.h
\nTVNavSDK\\include\\stringutil.h
\nTVNavSDK\\include\\sys
\nTVNavSDK\\include\\sysLib.h
\nTVNavSDK\\include\\taskLib.h
\nTVNavSDK\\include\\Text.h
\nTVNavSDK\\include\\TextTypes.h
\nTVNavSDK\\include\\tickLib.h
\nTVNavSDK\\include\\time.h
\nTVNavSDK\\include\\ttyLib.h
\nTVNavSDK\\include\\tyLib.h
\nTVNavSDK\\include\\types
\nTVNavSDK\\include\\unistd.h
\nTVNavSDK\\include\\USKbd.h
\nTVNavSDK\\include\\util
\nTVNavSDK\\include\\Vec.h
\nTVNavSDK\\include\\vid
\nTVNavSDK\\include\\Virtual.h
\nTVNavSDK\\include\\vwModNum.h
\nTVNavSDK\\include\\vxWorks.h
\nTVNavSDK\\include\\wchar.h
\nTVNavSDK\\include\\wdLib.h
\nTVNavSDK\\include\\widget
\nTVNavSDK\\include\\win<\/p>\n
18<\/p>\n
TVNavSDK\\include\\anim\\AnimPlyr.h
\nTVNavSDK\\include\\appmod\\AppModule.h
\nTVNavSDK\\include\\arch\\i86
\nTVNavSDK\\include\\arch\\mips
\nTVNavSDK\\include\\arch\\ppc
\nTVNavSDK\\include\\arch\\i86\\archI86.h
\nTVNavSDK\\include\\arch\\i86\\cacheI86Lib.h
\nTVNavSDK\\include\\arch\\i86\\dbgI86Lib.h
\nTVNavSDK\\include\\arch\\i86\\esfI86.h
\nTVNavSDK\\include\\arch\\i86\\excI86Lib.h
\nTVNavSDK\\include\\arch\\i86\\ivI86.h
\nTVNavSDK\\include\\arch\\i86\\regsI86.h
\nTVNavSDK\\include\\arch\\mips\\archMips.h
\nTVNavSDK\\include\\arch\\mips\\r4000.h
\nTVNavSDK\\include\\aud\\Aud.h
\nTVNavSDK\\include\\aud\\cAud.h
\nTVNavSDK\\include\\aud\\Snd.h
\nTVNavSDK\\include\\aud\\UiSnd.h
\nTVNavSDK\\include\\gfx\\cColor.h
\nTVNavSDK\\include\\gfx\\Color.h
\nTVNavSDK\\include\\gfx\\FbColor.h
\nTVNavSDK\\include\\gfx\\FbMemRegion.h
\nTVNavSDK\\include\\gfx\\GfxCtx.h
\nTVNavSDK\\include\\gfx\\GfxPrims.h
\nTVNavSDK\\include\\gfx\\GfxTypes.h
\nTVNavSDK\\include\\gfx\\GfxUtil.h
\nTVNavSDK\\include\\gfx\\GifCond.h
\nTVNavSDK\\include\\gfx\\Image.h
\nTVNavSDK\\include\\gfx\\PdGfx.h
\nTVNavSDK\\include\\gfx\\PixMap.h
\nTVNavSDK\\include\\gfx\\png.h
\nTVNavSDK\\include\\gfx\\Rect.h
\nTVNavSDK\\include\\gfx\\RectList.h
\nTVNavSDK\\include\\gfx\\t9685i2c.h
\nTVNavSDK\\include\\gfx\\VBlankClock.h
\nTVNavSDK\\include\\intl\\Locale.h
\nTVNavSDK\\include\\kernel\\ansiTimeExt.h
\nTVNavSDK\\include\\kernel\\BSem.h
\nTVNavSDK\\include\\kernel\\cBsem.h
\nTVNavSDK\\include\\kernel\\cClock.h
\nTVNavSDK\\include\\kernel\\cCondVar.h
\nTVNavSDK\\include\\kernel\\cDirectory.h
\nTVNavSDK\\include\\kernel\\cEvent.h
\nTVNavSDK\\include\\kernel\\cFile.h
\nTVNavSDK\\include\\kernel\\cHwFault.h
\nTVNavSDK\\include\\kernel\\Clock.h
\nTVNavSDK\\include\\kernel\\ClockTypes.h
\nTVNavSDK\\include\\kernel\\cMemRegion.h
\nTVNavSDK\\include\\kernel\\cMsgQueue.h
\nTVNavSDK\\include\\kernel\\cMsgTypes.h
\nTVNavSDK\\include\\kernel\\cMutex.h
\nTVNavSDK\\include\\kernel\\CondVar.h
\nTVNavSDK\\include\\kernel\\cShareLock.h
\nTVNavSDK\\include\\kernel\\cSysMonitor.h
\nTVNavSDK\\include\\kernel\\cSystem.h
\nTVNavSDK\\include\\kernel\\cThread.h
\nTVNavSDK\\include\\kernel\\cTimer.h
\nTVNavSDK\\include\\kernel\\Directory.h
\nTVNavSDK\\include\\kernel\\Event.h
\nTVNavSDK\\include\\kernel\\File.h
\nTVNavSDK\\include\\kernel\\HwFault.h<\/p>\n
19<\/p>\n
TVNavSDK\\include\\kernel\\iBsem.h
\nTVNavSDK\\include\\kernel\\iClock.h
\nTVNavSDK\\include\\kernel\\iCondVar.h
\nTVNavSDK\\include\\kernel\\iDirectory.h
\nTVNavSDK\\include\\kernel\\iEvent.h
\nTVNavSDK\\include\\kernel\\iFile.h
\nTVNavSDK\\include\\kernel\\iHwFault.h
\nTVNavSDK\\include\\kernel\\iMemRegion.h
\nTVNavSDK\\include\\kernel\\iMsgQueue.h
\nTVNavSDK\\include\\kernel\\iMutex.h
\nTVNavSDK\\include\\kernel\\iShareLock.h
\nTVNavSDK\\include\\kernel\\iSystem.h
\nTVNavSDK\\include\\kernel\\iThread.h
\nTVNavSDK\\include\\kernel\\iTimer.h
\nTVNavSDK\\include\\kernel\\MemRegion.h
\nTVNavSDK\\include\\kernel\\Msg.h
\nTVNavSDK\\include\\kernel\\MsgQueue.h
\nTVNavSDK\\include\\kernel\\Mutex.h
\nTVNavSDK\\include\\kernel\\ShareLock.h
\nTVNavSDK\\include\\kernel\\System.h
\nTVNavSDK\\include\\kernel\\Thread.h
\nTVNavSDK\\include\\kernel\\Timer.h
\nTVNavSDK\\include\\kernel\\TimerTypes.h
\nTVNavSDK\\include\\liveConn\\LiveConnEnabled.h
\nTVNavSDK\\include\\liveConn\\LiveConnLoadable.h
\nTVNavSDK\\include\\media\\Conductor.h
\nTVNavSDK\\include\\media\\iConductor.h
\nTVNavSDK\\include\\mime\\MimeRequest.h
\nTVNavSDK\\include\\net\\uio.h
\nTVNavSDK\\include\\private\\classLibP.h
\nTVNavSDK\\include\\private\\eventP.h
\nTVNavSDK\\include\\private\\funcBindP.h
\nTVNavSDK\\include\\private\\objLibP.h
\nTVNavSDK\\include\\private\\semLibP.h
\nTVNavSDK\\include\\reg\\cReg.h
\nTVNavSDK\\include\\reg\\cRegDef.h
\nTVNavSDK\\include\\reg\\cRegName.h
\nTVNavSDK\\include\\reg\\reg.h
\nTVNavSDK\\include\\scriptSym\\DataValue.h
\nTVNavSDK\\include\\sys\\fcntlcom.h
\nTVNavSDK\\include\\sys\\ioctl.h
\nTVNavSDK\\include\\sys\\times.h
\nTVNavSDK\\include\\sys\\types.h
\nTVNavSDK\\include\\types\\navANSI.h
\nTVNavSDK\\include\\types\\navArch.h
\nTVNavSDK\\include\\types\\navCpu.h
\nTVNavSDK\\include\\types\\navParams.h
\nTVNavSDK\\include\\types\\navTypes.h
\nTVNavSDK\\include\\types\\navTypesBase.h
\nTVNavSDK\\include\\types\\navTypesOld.h
\nTVNavSDK\\include\\types\\vxANSI.h
\nTVNavSDK\\include\\types\\vxArch.h
\nTVNavSDK\\include\\types\\vxCpu.h
\nTVNavSDK\\include\\types\\vxParams.h
\nTVNavSDK\\include\\types\\vxTypes.h
\nTVNavSDK\\include\\types\\vxTypesBase.h
\nTVNavSDK\\include\\types\\vxTypesOld.h
\nTVNavSDK\\include\\util\\navFlash.h
\nTVNavSDK\\include\\util\\navRom.h
\nTVNavSDK\\include\\util\\ScreenSaver.h
\nTVNavSDK\\include\\vid\\cVid.h<\/p>\n
20<\/p>\n
TVNavSDK\\include\\vid\\Tv.h
\nTVNavSDK\\include\\widget\\Alert.h
\nTVNavSDK\\include\\widget\\Ascii.h
\nTVNavSDK\\include\\widget\\Border.h
\nTVNavSDK\\include\\widget\\CheckBox.h
\nTVNavSDK\\include\\widget\\Component.h
\nTVNavSDK\\include\\widget\\Container.h
\nTVNavSDK\\include\\widget\\Document.h
\nTVNavSDK\\include\\widget\\Focus.h
\nTVNavSDK\\include\\widget\\Frame.h
\nTVNavSDK\\include\\widget\\Grid.h
\nTVNavSDK\\include\\widget\\Highlight.h
\nTVNavSDK\\include\\widget\\History.h
\nTVNavSDK\\include\\widget\\iCheckBox.h
\nTVNavSDK\\include\\widget\\Indicator.h
\nTVNavSDK\\include\\widget\\iPushButton.h
\nTVNavSDK\\include\\widget\\KeyCodes.h
\nTVNavSDK\\include\\widget\\Layout.h
\nTVNavSDK\\include\\widget\\ListBox.h
\nTVNavSDK\\include\\widget\\Picture.h
\nTVNavSDK\\include\\widget\\player.h
\nTVNavSDK\\include\\widget\\ProgressBar.h
\nTVNavSDK\\include\\widget\\PushButton.h
\nTVNavSDK\\include\\widget\\RadioButton.h
\nTVNavSDK\\include\\widget\\SoftKbd.h
\nTVNavSDK\\include\\widget\\TextArea.h
\nTVNavSDK\\include\\widget\\TextEdit.h
\nTVNavSDK\\include\\widget\\TextField.h
\nTVNavSDK\\include\\widget\\TextLabel.h
\nTVNavSDK\\include\\widget\\TvPicture.h
\nTVNavSDK\\include\\widget\\Widget.h
\nTVNavSDK\\include\\widget\\WidgetErrorBase.h
\nTVNavSDK\\include\\win\\Point.h
\nTVNavSDK\\include\\win\\Win.h
\nTVNavSDK\\include\\win\\WinEvent.h
\nTVNavSDK\\include\\win\\WinInput.h
\nTVNavSDK\\include\\win\\WinManConn.h<\/p>\n
21<\/p>\n
AMENDMENT N0. 2 TO
\n OEM LICENSE AGREEMENT
\n BETWEEN NETWORK COMPUTER, INC.
\n AND WIND RIVER SYSTEMS, INC.
\n DATED DECEMBER 31, 1997<\/p>\n
This Amendment No. 2 (“Amendment No. 2”) to the OEM License Agreement dated
\nDecember 31, 1997 between Network Computer, Inc. a Delaware corporation (“NCI”)
\nand Wind River Systems, Inc., a Delaware corporation (“Licensee”), as amended
\n(the “OEM License Agreement”), is made and entered into this 8th day of
\nFebruary, 1999 (the “Amendment 2 Effective Date”).<\/p>\n
RECITALS<\/p>\n
A. Licensee has been granted a license to certain NCI technology under
\n the terms and subject to the conditions set forth in the OEM License
\n Agreement.<\/p>\n
B. The parties desire to amend the OEM License Agreement as set forth in
\n this Amendment No. 2.<\/p>\n
C. All capitalized terms not defined herein shall have the meanings given
\n them in the OEM License Agreement.<\/p>\n
NOW, THEREFORE, in consideration of the mutual covenants and agreements
\ncontained herein, and other good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, the parties hereby agree as
\nfollows:<\/p>\n
1. Section 2.1 of the OEM License Agreement, as amended, is hereby amended by
\n adding the following subsection to the end of said Section:<\/p>\n
“2.1.6 OPTIONAL SOURCE CODE. NCI may from time to time, but is
\n not obligated to, deliver to Licensee additional source code that
\n is not a standard feature in the NCI Products (“Optional Source
\n Code”). OPTIONAL SOURCE CODE SHALL BE PROVIDED “AS-IS” AND ALL
\n REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
\n FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND
\n NON-INFRINGEMENT, ARE HEREBY DISCLAIMED. Optional Source Code shall
\n be subject to all the terms and restrictions that the NCI Source
\n Code is subject to; except that the terms in sections 5.1, 9, and
\n 10 and Attachments A and B that apply to NCI Source Code shall not
\n be applicable to Optional Source Code. The Optional Source Code
\n shall be provided to Licensee at no additional charge, unless
\n otherwise agreed in writing by the parties.”<\/p>\n
2. This Amendment No. 2 shall be deemed to be incorporated into the OEM
\n License Agreement and made a part thereof. All references to the OEM
\n License Agreement in any other document shall be deemed to refer to the OEM
\n License Agreement as modified by this Amendment No. 2. Except as modified
\n by this Amendment No. 2, the OEM License Agreement shall remain in full
\n force and effect and shall be enforceable in accordance with its terms. In
\n the event that the terms of this Amendment No. 2 conflict with the terms of
\n the OEM License Agreement, or its exhibits, as amended, the terms of this
\n Amendment No. 2 shall be deemed to govern.<\/p>\n
3. This Amendment No. 2 may be executed in counterparts, each of which shall
\n be deemed an original, but all of which shall constitute one and the same
\n document.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be
\nduly executed as of the Amendment 2 Effective Date.<\/p>\n
“NCI” “Licensee”<\/p>\n
Network Computer, Inc. Wind River Systems, Inc.<\/p>\n
By: By:
\n ————————– ————————–
\nPrint Name: Print Name:
\n —————— ——————
\nTitle: Title:
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