{"id":42629,"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-software-licensing-agreement-lynx-real-time-systems-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"oem-software-licensing-agreement-lynx-real-time-systems-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/oem-software-licensing-agreement-lynx-real-time-systems-inc.html","title":{"rendered":"OEM Software Licensing Agreement &#8211; Lynx Real-Time Systems Inc. and Xerox Corp."},"content":{"rendered":"<pre>                        OEM SOFTWARE LICENSING AGREEMENT\n              SOFTWARE LICENSE and DERIVATIVE PRODUCT DISTRIBUTION\n\n     THIS Agreement (the \"Agreement\") is made and entered into in San Jose,\nCalifornia, and is effective as of 4\/30\/99. (\"Effective Date\") between Lynx \nReal-Time Systems, Inc., a California corporation with principal offices at 2239\nSamaritan Drive, San Jose, CA 95124 (\"Lynx\"), and XEROX CORPORATION, a New York\ncorporation, with offices at 200 Cross Keys Office Park, Fairport, NY 14450\n(\"Licensee\").\n\n     IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE\nAS FOLLOWS:\n\n--------------------------------------------------------------------------------\n\n                                                                 \n1  DEFINITIONS                                                   \n   -----------                                                   \n\n   1.1   \"Licensed Software\" means all software and Documentation delivered \npursuant to this Agreement, as listed in Exhibit B, and shall include all Error \nCorrections, modifications, improvements, enhancements, additions, Underlying \nSoftware, Updates, releases and versions thereof.\n\n   1.2   \"Underlying Software\" means a binary executable version of a certain\ncomputer program which Lynx has either created or has the ownership of or a\nlicensable right in and which is a portion of one of the software programs\nidentified as Licensed Software in Exhibit B, including Updates and Error\nCorrections.\n\n   1.3   \"Derivative Product\" means any work derived from, the Underlying \nSoftware, which derivation was created or developed, at the expense of, or on \nthe initiative of Licensee.\n\n   1.4   \"Licensee Product(s)\" shall mean an integrated product combining a\nDerivative Product with a controller board which may consist of, without \nlimitation, Intel x86 family of microprocessor hardware and\/or software owned, \ndeveloped and\/or licensed by Licensee.\n\n   1.5   \"Documentation\" shall mean all written materials as listed in Schedule \n1.\n\n   1.6   \"Licensee\" means Xerox Corporation, Xerox Europe, Fuji Xerox Co., Ltd.,\nand their respective subsidiaries and affiliates.\n\n   1.7   \"Confidential Information\" means information concerning the business, \nplans, customers, and\/or products of a party to this Agreement that is of \nsubstantial value to that party, which value would be impaired if such \ninformation were disclosed to third parties and which is marked \"proprietary\" or\n\"confidential\" when disclosed, or if disclosed orally, is reduced to writing and\ndelivered to the receiving party as such within thirty (30) days after the \ninitial disclosure. Notwithstanding the foregoing, the Underlying Software and \nthe Licensed Software, excluding Documentation, shall be deemed to be the \nConfidential Information of Lynx, whether or not marked as such.\n\nConfidential Information as defined herein does not include the technology or \nsource code of either party and should the exchange of such be required the \nparties will execute a separate agreement.\n\n   1.8   \"Site\" means the location of the Licensee facility. Licensee may change\nthe location of the Site provided there is not more than one (1) Site at a time \nand provided that Licensee notifies LYNX in writing prior to the change.\n\n   1.9   \"Support Contacts\" means the persons designated by Licensee in Appendix\nA who are the primary point of contact to communicate with LYNX on any problems,\nquestions, and\/or issues related to the Licensed Software.\n\n   1.10  \"Error\" means a failure attributed to the Licensed Software or its\nDocumentation, which causes the Licensed Software to deviate materially from all\nportions of the Documentation except that portion of the Documentation that\ncontains disclaimers against errors in the documentation software and fitness\nfor a particular purpose.\n\nCERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH\nTHE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE\nOMITTED PORTIONS.\n\n\n                                       1\n\n \n     1.11 \"Error Correction\" means either a software modification, patch, or\naddition that, when made or added to the Licensed Software, establishes material\nconformity of the Licensed Software to the Documentation.\n                                                              \n     1.12 \"Workaround\" means a procedure, routine, or suitable alternate\nsolution that, when observed in the regular operation of the Licensed Software,\nallows the user to get around the problem or practical adverse effect on the\nLicensed Software of an Error or nonconformity. The workaround may include\nalternate methods of implementation to achieve a similar but not identical\nsolution.\n                                                              \n     1.13 \"Update\" means any modification or addition that, when made or added\nto the Licensed Software, fixes bugs and may provide functionality enhancements,\nbut does not change the overall utility or functional capability. An update\ngenerally includes all Error Corrections provided as patches for the current\nversion of the Licensed Software. There may be exceptions to this and these\nshall be communicated to Licensee, on a case by case basis and resolved in a\nmutually agreed upon manner and time frame. Updates are done within the current\nmajor release level.\n                                                              \n     1.14 \"Upgrade\" means any modification or addition that, when made or added\nto the Licensed Software, substantially changes the overall utility or\nfunctional capability. Upgrades are denoted by major release level changes.\n                                                              \n     1.15 \"Normal Working Hours\" means the hours between 8:00 a.m. and 5:00\np.m., Pacific Time, on the days Monday through Friday, excluding the regularly\nscheduled LYNX holidays.\n                                                              \n     1.16 \"Acknowledgement\" means LYNX's (1) initial acknowledgement of problem\nreceipt and (2) acknowledgement that LYNX has been able to reproduce the\nproblem.\n\n     1.17 \"Target Closure Time\" means LYNX's final disposition of Licensee's\nrequest regarding the Licensed Software.\n                                                              \n     1.18 Error Severity Level: The following are the definitions for the\ndifferent Error severity levels, as discussed in Section 3 of Exhibit A.\n                                                              \nCritical - Real data loss or corruption, or essential part of the system is\nunusable.\n\nHigh - A major feature or tool does not work as documented and no reasonable\nWorkaround exists. Examples are: failure of major features of product builds,\nkernel crashes outside routine operation (e.g. debugging).\n                                                               \nMedium - Failure of a minor feature or tool, or a feature does not work as\ndocumented, but a Workaround exists.\n                                                               \nLow - Cosmetic, as in output field alignment, obvious typographical errors or\npoor grammar.\n                                                               \n2.   GRANT OF LICENSE                                           \n     ----------------                                           \n                                                               \n     2.1  License. Subject to the terms and conditions of this Agreement, Lynx\n          ------- \nhereby grants Licensee the rights as defined in Exhibit A, attached hereto.\nLicensee agrees to the restrictions, obligations and other terms set forth in\nExhibit A.\n                                                               \n3.   PAYMENT &amp; COMPENSATION                                     \n     ----------------------                                     \n                                                               \n     3.1  Fees &amp; Royalties. Licensee shall pay fees, if any, and royalties\n          ----------------                                     \naccording to the terms of Exhibits A &amp; B. Upon execution of this Agreement, Lynx\nwill invoice Licensee for all applicable fees not previously paid as defined in\nExhibit B. Licensee agrees to pay all such invoices within 45 days of receipt.\n                                                               \n     3.2  Taxes. Amounts payable to Lynx under this Agreement are payable in\n          -----                                                 \nfull to Lynx without deduction and are net of taxes (including any withholding\ntax) and customs duties. In addition to such amounts, Licensee shall pay sums\nequal to taxes (including, without limitation, sales, withholding, value-added\nand similar taxes) and customs duties paid or payable, however designated,\nlevied, or based on amounts payable to Lynx hereunder but exclusive of United\nStates federal, state, and local taxes on Lynx's net income.\n                                                               \n     3.3  Reports. Licensee shall, within sixty (60) days of the end of each\n          -------\ncalendar quarter, deliver to Lynx a report detailing the number of revenue\nbearing installations of Licensee Product, if any, and the number of shipments\nof Licensee Product to Licensee's OEM customers, if any, during the previous\ncalendar quarter, and setting forth the aggregate royalties due and owing to\nLynx thereon.\n\n          A check for the amount of aggregate royalties owed shall be delivered\nto Lynx within the\n\n\n                                       2\n\n \nsame 60 day period. All payments hereunder will be in U.S. Dollars, without\ndeductions of any kind. Any payments made by Licensee under this Agreement shall\nbe non-refundable to Licensee.\n                                                              \n     3.4  Audit Rights. Licensee agrees to make and to maintain until the\n          ------------                                        \nexpiration of two (2) years after each royalty report issued under this\nAgreement, sufficient books, records and accounts to confirm Licensee's royalty\nobligations hereunder. Lynx shall have the right not more than once every\ncalendar year to examine such books, records and accounts during Licensee's\nnormal business hours to verify Licensee's reports on the amount of payments\nmade to Lynx under this Agreement, and Licensee's compliance with the terms and\nconditions of this Agreement. If any such examination discloses a shortfall in\nthe royalties due to Lynx hereunder, Licensee shall reimburse Lynx for the full\namount of shortfall. If any such examination discloses an overpayment in the\nroyalties due to Lynx hereunder, Lynx shall reimburse Licensee for the full \namount of the overpayment. Should an audit discover any errors or omissions by\nLicensee amounting to more than five percent (5%) of the amount due during any\ngiven period, Licensee shall reimburse Lynx for the costs of such audit.\n                                                              \n4.   PROPRIETARY RIGHTS                                       \n     ------------------                                       \n\n     4.1  Licensed Software. Licensee shall not be an owner of any copies of the\n          -----------------                                   \nLicensed Software, but, rather, is licensed pursuant to this Agreement to use\nsuch copies. Licensee acknowledges and agrees that, as between Licensee and\nLynx, all right, title and interest in the Licensed Software and any part\nthereof, including, without limitation, all rights to patent, copyright,\ntrademark and trade secret rights and all other intellectual property rights\ntherein and thereto, and all copies thereof, in whatever form, including any\nwritten Documentation shall at all times remain solely with Lynx.\n\n     4.2  Derivative Products. Notwithstanding the foregoing, Licensee shall\n          -------------------\nretain all right, title and interest in and to modifications to the Underlying \nSoftware made by Licensee pursuant to the license in Section 2 above, the\nDerivative Products, subject always to Lynx's ownership rights and copyright\nrights in the Underlying Software as such ownership rights are licensed to\nLicensee pursuant to this Agreement.\n                                                              \n5.   CONFIDENTIALITY                                \n     ---------------\n\n     5.1  General. Lynx and Licensee agree to keep confidential and not to\n          -------\ndisclose or make available to any third party Confidential Information received\nfrom the other in any form without the express written approval of the other.\nEach party agrees not to use such Confidential Information except to the extent\nnecessary to perform under this Agreement, and neither party shall intentionally\ncirculate the Confidential Information of the other party within its own\norganization except to those with a specific need to know.\n                                                                  \nLicensee shall retain in strict confidence the Licensed Software and use the\nLicensed Software only as expressly licensed herein. Licensee agrees that it\nwill under no circumstances distribute or in any way disseminate or disclose the\nLicensed Software to third parties, except as expressly provided in this\nAgreement.\n                                                                  \nThe obligations of both parties recited herein shall terminate with respect\nto any portion of such Confidential Information when and to the extent it is or\nbecomes: (a) part of the public domain through no fault of the other party: (b)\ncommunicated by the disclosing party to a third party free of any obligation of\nconfidence: (c) independently developed by the receiving party without access to\nor use of the Confidential Information of the disclosing party: (d) known to the\nreceiving party free of any obligation of confidence from a source other than\nthe disclosing party without breach of this Agreement and not otherwise in\nviolation of the disclosing party's rights.\n                                                                  \nThe obligations of this Section 5.1 with respect to Confidential Information,\nother than Licensed Software, shall cease upon the third anniversary of the\ninitial disclosure of such Confidential Information.\n                                                                  \n6    WARRANTY &amp; DISCLAIMER                                          \n     ---------------------                                          \n                                                                  \n     6.1  LYNX REPRESENTS AND WARRANTS THAT LYNX OWNS ALL RIGHTS AND TITLE TO\nTHE LICENCED SOFTWARE OR OTHERWISE HAS SUFFICIENT RIGHTS TO GRANT LICENSEE THE\nLICENSES GRANTED HEREIN. LYNX FURTHER WARRANTS THAT THE LICENSED SOFTWARE IS\nSUBSTANTIALLY FREE FROM PROGRAM ERROR AND THAT IT FULLY CONFORMS WITH THE\nDOCUMENTATION AS LISTED IN\n\n\n                                       3\n\n \nSCHEDULE I. EXCEPT THE PORTION OF THE DOCUMENTATION THAT CONTAINS DISCLAIMERS\nAGAINST ERRORS IN THE DOCUMENTATION OR SOFTWARE AND FITNESS FOR A PARTICULAR\nPURPOSE, LICENSEE'S SOLE REMEDY UNDER THE PRECEEDING SENTENENCE SHALL BE IN\nACCORDANCE WITH THE TERMS OF THE SUPPORT AGREEMENT. FOR A PERIOD OF NINETY (90)\nDAYS FROM THE DATE OF DELIVERY, THE MEDIA ON WHICH THE LICENSED SOFTWARE IS\nFURNISHED WILL BE FREE FROM MATERIAL DEFECTS IN MATERIALS AND WORKMANSHIP.\n(IF ANY PROGRAM ERRORS OR DEFECTS ARE FOUND IN THE MEDIA DURING THE ABOVE NINETY\n(90) DAY WARRANTY PERIOD, LYNX SHALL CORRECT SUCH ERRORS OR REPLACE SUCH\nDEFECTIVE MEDIA AT NO CHARGE TO LICENSEE, EXCEPT FOR THE ABOVE EXPRESS LIMITED\nWARRANTIES. THE LICENSED SOFTWARE IS PROVIDED \"AS IS.\" LYNX MAKES NO WARRANTIES\nOR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND LYNX SPECIFICALLY\nDISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A\nPARTICULAR PURPOSE. LYNX DOES NOT WARRANT THAT USE OF THE LICENSED SOFTWARE WILL\nBE UNINTERRUPTED OR ERROR FREE, WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THEY\nWILL OPERATE WITH THE COMBINATION OF HARDWARE AND SOFTWARE SELECTED BY LICENSEE.\n\n     6.2   Year 2000 Warranty. LYNX represents and warrants that the Licensed\n           ------------------\nSoftware, when used in accordance with all LYNX-supplied Documentation, and\nprovided that every product used in combination with such Licensed Software\nproperly exchanges date data with it, will correctly process dates and date data\nbefore and after January 1, 2000 (i.e., such LYNX Product is \"Year 2000 Ready\").\n\nIn the event, that the Licensed Software is not Year 2000 Ready, LYNX will use\ncommercially reasonable efforts to provide to Licensee with an Error Correction\nor Update in accordance with the Correction Schedule identified in Exhibit A \nhereto. \n\nLYNX will have no liability for indirect, special, incidental or consequential\ndamages, under any theory of liability and whether or not LYNX has been advised\nof the possibility of such damages.  \n\n     7.    TERM AND TERMINATION                                               \n           --------------------                                               \n                                                                      \n           7.1       Term. This Agreement shall become effective upon the\n                     ----\nEffective Date and shall be perpetual provided neither party terminates or has\nterminated this Agreement under the terms and conditions herein.\n\n           7.2       Termination. This Agreement may be terminated by either\n                     -----------\nparty upon notice if the other party (i) breaches any material term or condition\nof this Agreement and fails to remedy the breach within sixty (60) days after\nbeing given notice thereof: provided, however, that if such breach cannot be\ncured within such sixty (60) day period, but the breach is capable of cure\nwithin a reasonable period of time which is acceptable to the other party and\nthe breaching party diligently pursues such cure, the breaching party shall be\nallowed such agreed time period to cure such default, (ii) becomes the subject\nof any voluntary or involuntary proceeding under the U.S. Bankruptcy Code or\nstate insolvency proceeding and such proceeding is not terminated within sixty\n(60) days of its commencement, (iii) ceases to be actively engaged in business.\nAdditionally, Licensee shall have the right to terminate this Agreement upon\nthirty (30) days notice to LYNX.\n\n          7.3        Effect of Termination. Should this Agreement be terminated\n                     ---------------------\nfor any reason:\n\n                     (a)  the licenses granted to Licensee hereunder shall\n terminate except that if termination is on account of material breach by LYNX.\n Licensee may continue to distribute the Underlying Software as part of those\n Licensee Products in production and inventory upon the termination of this\n Agreement (but not including new models, upgrades, line extensions, updates or\n any new products of any kind) for so long as such Licensee Products are\n manufactured or distributed by Licensee and subject to continued payment of\n royalties as set forth in Section 3.3. Licensee's rights (but not end users\n sublicensed hereunder) shall terminate with respect to each Licensee Product\n upon Licensee's discontinuation of each such Licensee Product in production and\n inventory at the time of termination of this Agreement;\n\n                                       4\n\n \n     (b)   end users sublicensed hereunder shall be permitted perpetual use of\nthe Underlying Software contained in the Derivative Product according to the\nterms of their sublicense agreements;\n\n     (c)   each party shall return the Confidential Information of the other\nparty or shall certify to the other party that such Confidential Information has\nbeen destroyed.\n                                                         \n     7.4   Survival of Certain Terms. The Provisions of Sections 3, 4, 5, 6, 7,\n           -------------------------\n9, 10, 11, and 12 will survive the termination of this Agreement for any reason.\nIn addition, termination of this Agreement shall not release Licensee from its\nliability to pay to Lynx any royalties which shall have accrued to Lynx at the\ntime such termination becomes effective, or which accrue to Lynx after the\neffective date of such termination. All other rights and obligations of the\nparties will cease upon termination of this Agreement.\n\n8.    TRADEMARK LICENSE                                     \n      -----------------                                    \n\n      8.1. Use. During the term of this Agreement, Licensee shall have the right\n           ---\nto indicate to the public that it utilizes the Licensed Software in the Licensee\nProduct, and to advertise such utilization under the trademarks, marks, and\ntrade names that Lynx may adopt from time to time (\"Lynx's Trademarks\").\nLicensee shall reproduce any of Lynx's Trademarks marked in or on the Licensed\nSoftware on each copy made by Licensee. Nothing herein shall grant to Licensee\nany right, title or interest in Lynx's Trademarks, and Licensee shall have no\nright to sublicense the rights to use Lynx's trademarks to Sub-distributors or\nanother third party. At no time during the term of this Agreement shall Licensee\nchallenge or assist others to challenge Lynx's Trademarks or the registration\nthereof or attempt to register any trademarks, marks or trade names confusingly\nsimilar to those of Lynx.\n\n\n      8.2  Approval of Representations. All representations of Lynx's \n           ---------------------------\nTrademarks that Licensee intends to use shall first be submitted to Lynx for\napproval (which shall not be unreasonably withheld) of design, color, and other\ndetails or shall be exact copies of those used by Lynx. Lynx agrees to approve\nor disapprove of any representation of Lynx's Trademarks within fifteen (15)\nbusiness days of receipt of samples of such representation, provided failure of\nLynx to respond within such fifteen (15) business day period shall be determined\nan approval, Licensee may not use any representation of Lynx's Trademarks unless\nthey have been so approved by Lynx and only as approved by Lynx.\n\n9.    LIMITED LIABILITY                              \n      -----------------                              \n\n      IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY\nFOR LOST PROFITS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR\nSERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES,\nHOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND\nWHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH\nDAMAGE. THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS REASONABLE ALLOCATION\nOF RISK\n\n10.   MAINTENANCE                                       \n      -----------                                       \n                                                                        \n      Any obligation Lynx may have to provide support, updates or maintenance to\nthe Licensee shall be pursuant to a Support Agreement pursuant to Exhibit D.\nLicensee shall have the sole obligation to support all Licensee Product(s)\ndistributed by Licensee.\n\n11.   INTELLECTUAL PROPERTY                           \n      ---------------------                           \n      INFRINGEMENT INDEMNITY                          \n      ----------------------                          \n                                                                        \n      11.1  Indemnity. Lynx agrees at its own expense, to defend or at its\n            ---------\noption to settle, any claim or action brought against Licensee to the extent\nthat it is based on a claim that the Licensed Software, when used or distributed\nwithin the scope of this Agreement, infringes any patent, copyright, trademark\nor trade secret of any third party; and Lynx agrees to pay any settlements\nentered into or damages finally awarded against Licensee to the extent based on\nsuch a claim; provided that Licensee provides Lynx with (i) prompt written\nnotice of such claim or action, (ii) sole control and authority over the defense\nor settlement of such claim or action and (iii) proper and full information and\nreasonable assistance to defend and\/or settle any such claim or action.\nNotwithstanding the above, Licensee shall be entitled at its option and cost to\nretain its own counsel, which counsel shall participate in all proceedings in a\nmanner consistent with the above provisions. If a final injunction is entered,\nor Lynx believes, in its sole discretion, is likely to be entered prohibiting\nLicensee from exercising its right to use the Licensed Software.\n\n                                       5\n\n \ngranted hereunder. Lynx, at its sole option and expense, may either (i) procure\nfor Licensee the right to use and distribute the Licensed Software as provided\nherein, (ii) replace the Licensed Software with other non-infringing products;\n(iii) suitably modify the Licensed Software so that it is not infringing; or\n(iv) accept return of the Licensed Software and refund the amortized value of\nsuch Licensed Software to Licensee. Lynx will not be liable for any costs or\nexpenses incurred without its prior written authorization.\n\n     11.2  Limitations. Notwithstanding the provisions of Section 11.1 above,\n           ----------- \nLynx assumes no liability for infringement claims arising from (i) combination\nof the Licensed Software with other products not provided by Lynx, but not\ncovering the Licensed Software standing alone, or (ii) the modification of the\nLicensed Software unless such modification was made by Lynx.\n\n     11.3  Disclaimer. THE FOREGOING PROVISIONS OF THIS SECTION 11 STATES THE\n           ----------\nENTIRE LIABILITY AND OBLIGATIONS OF LYNX AND THE EXCLUSIVE REMEDY OF LICENSEE,\nWITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF ANY PATENT, COPYRIGHT,\nTRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE LICENSED\nSOFTWARE.\n\n12.  GENERAL PROVISIONS\n     ------------------\n\n     12.1  Independent Contractors. The relationship of Lynx and Licensee\n           -----------------------\nestablished by this Agreement is that of independent contractors, and nothing\ncontained in this Agreement shall be construed (i) to constitute the parties as\npartners, joint venturers, co-owners or otherwise as participants in a joint or\ncommon undertaking. All financial obligations associated with Licensee's\nbusiness are the sole responsibility of Licensee. All sales and other agreements\nbetween Licensee and its customers are Licensee's exclusive responsibility and\nshall not affect Lynx's obligations under this Agreement. Licensee shall be\nsolely responsible for, and shall indemnify, defend, and hold Lynx harmless of\nany costs, liabilities and expenses against all claims, damages, and lawsuits\narising from the acts and omissions of Licensee, its employees, servants, agents\nor any of them, provided that Lynx provides Licensee with (i) prompt written\nnotice of such claim or action, (ii) sole control and authority over the defense\nor settlement of such claim or action and (iii) proper and full information and\nreasonable assistance to defend and\/or settle any such claim or action. Licensee\nwill not be liable for any costs or expenses incurred without its prior written\nauthorization.\n\n     12.2  Governing Law. This Agreement shall be interpreted and governed by\n           -------------\nthe laws of the State of New York, without reference to conflict of laws\nprinciples.\n\n     12.3  Jurisdiction. For any disputes arising out of this Agreement the\n           ------------\nparties consent to the personal and exclusive jurisdiction of, and venue in, the\nstate or federal courts within Monroe County, New York.\n\n     12.4  Entire Agreement. This Agreement, along with a Support Agreement if\n           ----------------\nrequired, constitutes the entire and exclusive Agreement(s) between the parties\nhereto with respect to the subject matter hereof and supersedes and cancels all\nprevious registrations, agreements, commitments and writings in respect thereof.\n\n     12.5  Modification. No Modification to this Agreement, nor any waiver of\n           ------------\nany rights, shall be effective unless assented to in writing by the party to be\ncharged, and the waiver of any breach or default shall not constitute a waiver\nof any other right hereunder or any subsequent breach or default.\n\n     12.6  Assignment. This Agreement and the license provided hereunder are not\n           ---------\nassignable without the prior written consent of Lynx which shall not be\nunreasonably withheld. Any attempt at assignment without such consent shall be\nnull and void and of no force and effect.\n\n     12.8  Disputes. The parties will attempt to settle any claim or controversy\n           --------\narising out of this Agreement through good faith negotiations and mutual\ncooperation. If those attempts fail, then the dispute will be first submitted to\na mutually acceptable neutral advisor for mediation. Neither party may\nunreasonably withhold acceptance of such an advisor, and selection of the\nadvisor shall be made within forty-five (45) days after written notice by one\nparty demanding such resolution. The cost of such mediation shall be shared\nequally by both parties. Any dispute, which cannot be resolved between the\nparties within one hundred eighty (180) days of the date of the initial demand\nby either party for such mediation, shall be finally determined by the courts.\n\n\n                                       6\n\n \nThe use of such a procedure shall not be construed to affect adversely the\nrights of either party under the doctrines of laches, waiver or estoppel.\nNothing in this paragraph shall prevent either party from resorting to judicial\nproceedings if: (A) good faith efforts to resolve a dispute under these\nprocedures have been unsuccessful: or (B) interim resort to a court is necessary\nto prevent serious and irreparable injury to a party or to others. This section\nshall not apply to claims or disputes relating to intellectual property rights. \n                                                             \n     12.9   Compliance with U.S. Export and Re-export Controls. Licensee and its\n            --------------------------------------------------\nagents and emp1oyees shall not disclose, transfer, export, or re-export,\ndirectly or indirectly, any software, technology (or direct products thereof)\nprovided under this Agreement to any destination, end user, or end use\nprohibited under the U.S. Export Administration Regulations or any other\napplicable export control laws, without the prior written approval of the U.S.\nDepartment of Commerce or other relevant agency. This clause shall survive\ntermination or lapse of the Agreement.\n\n     12.10  Severability. If any provision of this Agreement is held to be\n            ------------\ninvalid by a court of competent jurisdiction, then the remaining provisions\nwill nevertheless remain in full force and effect. The parties agree to re-\nnegotiate in good faith any term held invalid and to be bound by the mutually\nagreed substitute provision.\n\n     12.11  No Waiver. The failure of either party to enforce any term or\n            ---------\ncondition of this Agreement shall not constitute a waiver of that party's rights\nto enforce subsequent breaches of any term or condition under this Agreement.\n\n     12.12  Notices. Any notices required to be given under this Agreement shall\n            -------\nbe in writing and addressed to the respective party at the address shown on the\nfirst page of this Agreement or such other address as may be provided by each\nparty from time-to-time. Notices shall be effective when received and shall be\nsent by certified or registered mail, return receipt requested, or by overnight\ncourier.\n\n     12.13  Force Majeure. Neither party shall be liable to the other for its\n            -------------\nfailure to perform any of its obligations under this Agreement, except for\npayment obligations, during any period in which such performance is delayed\nbecause such services were rendered impracticable or impossible due to\ncircumstances beyond the responsible party's reasonable control, provided that\nthe party experiencing the delay promptly notices the other of the delay. Any\nTechnical Support to be performed at Licensee's facility, as referenced in\nExhibit D, section 6.0, may not be performed if Lynx reasonably believes\nconditions at such facility represent a safety or health hazard to any Lynx\nemployee.\n                                                               \nThe terms and conditions on Exhibits \"A,\" \"B,\" \"C,\" and \"D\" are attached hereto\nand made a part hereof.\n\nLYNX REAL-TIME SYSTEMS, INC.                                   \n                                                               \nBy: \/s\/ Inder M. Singh\n    ------------------------------------ \n                                                               \nPrint Name:  INDER M. SINGH                                    \n           -----------------------------\n                                                               \nTitle: CHAIRMAN &amp; CEO                                         \n       --------------------------------- \n                                                               \nDate:   4\/30\/99\n     -----------------------------------\n\n\nLICENSEE:\n\nCompany:     Xerox Corporation\n\n\nBy: \/s\/ Raymond Valukonis\n   -------------------------------------\n\nPrint Name:  Raymond Valukonis\n           -----------------------------\n\nTitle:  Vice President Finance, ODPG\n      ----------------------------------      \n\nDate:     4\/30\/99               \n     -----------------------------------\n\n\n                                       7\n\n \n                                   EXHIBIT A\n\n\n[*]\n\n\n[*]=Certain information on this page has been omitted and filed separately with \nthe Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n\n                                       8\n\n\n \n                                  EXHIBIT B \n\n\n[*]\n \n    \n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n                                       9\n\n \n                                   EXHIBIT C\n                          END-USER LICENSE AGREEMENT\n                          --------------------------\n\n\n--------------------------------------------------------------------------------\nSOFTWARE LICENSE. The following terms apply to copyrighted software and the\naccompanying documentation, including but not limited to operating system\nsoftware, provided with or within the Equipment (\"Base Software\") as well as\nsoftware specifically set out as \"Application Software\" on the face of this\nAgreement. This license does not apply to any Diagnostic Software nor to any\nsoftware and accompanying documentation made subject to a separate license\nagreement.\n\nA. Licensee grants you a non-exclusive, non-transferable license to use the Base\nSoftware only on or with the Equipment with which (or within which) it was\ndelivered and to make one back-up copy. For Application Software, Licensee\ngrants you a non-exclusive, non-transferable license to use this software on any\nsingle unit of equipment you desire along with the right to make one back-up\ncopy for as long as you are current in the payment of any indicated software\nlicense fees (including the Annual Renewal Fees, if any). You have no other\nrights to the Base or Application Software and, in particular, may not (1)\ndistribute, modify, create derivatives of, decompile, or reverse engineer the\nBase or Application Software, or (2) allow others to engage in same. Title to\nthe Base and Application Software, any back-up copy of it, and all copyrights\nand other intellectual property rights in it, shall at all times reside solely\nwith Xerox and\/or its licensors.\n\nB. Xerox may terminate your license for any Base Software (1) immediately if\nyou no longer use or possess the Equipment or are a lessor of the Equipment and\nyour first lessee no longer uses or possesses it or (2) upon the date of\ntermination of any agreement under which you have rented or leased the\nEquipment.\n\nC. If you transfer possession of the Equipment, Xerox will offer the transferee\na license to use the Base Software on or with it, subject to Xerox' then-\napplicable terms and license fees, if any, and provided the transfer is not in\nviolation of Xerox' rights.\n\nD. Xerox warrants that the Base and Application Software will perform in\nmaterial conformity with its published specifications for a 90-day period from\nthe date it is delivered or, for software installed by Xerox, the date of\nsoftware installation. Neither Xerox nor its licensors warrant that the Base or\nApplication Software will be free from errors or that its operation will be\nuninterrupted.\n\nSOFTWARE SUPPORT. During the period that Xerox provides Basic Services for the\nEquipment, Xerox will also provide software support for the Base Software under\nthe following terms. For Application Software, Xerox will provide this same\nlevel of support provided you are current in the payment of all Initial License\nand Annual Renewal Fees (or, for programs not requiring Annual Renewal Fees,\nthe payment of the Initial License Fee and the annual \"Support Only\" Fees):\n\nA. Xerox will assure that Base and Application Software performs in material\nconformity with its published specifications and will maintain a toll-free\nhotline during standard business hours for responding to questions regarding\nBase and Application Software.\n\n                                       10\n\n\n \nB. Xerox may make available new releases of the Base or Application Software\nthat exclusively incorporates coding error fixes (\"Maintenance Releases\").\nMaintenance Releases are provided at no charge and must be implemented within\nsix (6) months after being made available to you. Each new Maintenance Release\naccepted by you shall be considered Base or Application Software governed by the\nSoftware License terms.\n\nC. Xerox will use reasonable efforts, either directly and\/or with its vendors,\nto resolve coding errors or provide workarounds or patches, provided you report\nproblems in the manner specified by Xerox.\n\nD. Xerox shall not be obligated to remedy coding errors if you have made\nmodifications to the Base or Application Software.\n\nE. Xerox may annually adjust the Annual Renewal and Support-Only Fees, each such\nincrease not to exceed 10%. (For state and local-government customers, this\nadjustment shall take place at the commencement of each of your annual contract\ncycles.)\n\n\n                                       11\n\n \n                                   EXHIBIT D\n\n\n[*, Pages 12-19]\n\n[*] = Certain information on pages 12-19 has been omitted and filed separately\nwith the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n\n                                       12\n\n \n                                  SCHEDULE 1\n                                DOCUMENTATION:\n\n The following documents will be shipped with the Software:\n \n Part Number             Description\n-------------------------------------------------------------------\n DOC-0261                LynxOS 3.0.1 Release Notes                 \n------------------------------------------------------------------\n DOC-0263                LynxOS 3.0.1 Installation Guide           \n------------------------------------------------------------------\n DOC-0264                LynxOS 3.0.1 Hardware Support Guide       \n------------------------------------------------------------------\n DOC-0265                TotalDB Release Notes                     \n------------------------------------------------------------------\n DOC-0276                LynxOS 3.0.1 Device Mosaic Release Notes  \n------------------------------------------------------------------\n ISBN 1-56592-015-5      X Window System User's Guide              \n------------------------------------------------------------------\n ISBN 1-56592-074-0      Posix.4: Programming for the Real World   \n------------------------------------------------------------------\n ISBN 1-937175-73-0      Posix Programmers Guide                    \n------------------------------------------------------------------ \n DKT-0007                GNU C\/C++ Tools Set \n------------------------------------------------------------------ \n DKT-0008                LynxOS Base Documentation Set             \n------------------------------------------------------------------  \n DOC-0253                LynxInsure++ Release Notes                \n------------------------------------------------------------------\n DOC-0252                LynxInsure++ InUSE                         \n------------------------------------------------------------------ \n DOC-0251                LynxInsure++ TCA                          \n------------------------------------------------------------------\n DOC-0250                LynxInsure++ User's Guide               \n------------------------------------------------------------------\n DOC-0249                LynxInsure++ Getting Started              \n------------------------------------------------------------------\n DOC-0222                TimeScan User's Guide                     \n------------------------------------------------------------------\n DOC-0223                ELOG Library Programmer's Guide           \n------------------------------------------------------------------\n DOC-0225                TimeScan Release Notes                    \n------------------------------------------------------------------\n DOC-0220                TotalView User's Guide                   \n------------------------------------------------------------------\n DOC-0221                TotalView Supplement                      \n------------------------------------------------------------------\n DOC-0224                TotalView Release Notes                   \n------------------------------------------------------------------\n\n                                       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