{"id":42797,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/software-development-agreement-verifone-inc-hewlett-packard.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"software-development-agreement-verifone-inc-hewlett-packard","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/software-development-agreement-verifone-inc-hewlett-packard.html","title":{"rendered":"Software Development Agreement &#8211; VeriFone Inc., Hewlett-Packard Co. and LynuxWorks Inc."},"content":{"rendered":"<pre>                        Software Development Agreement\n                            Agreement No. D1279_____\n                          HP Agreement No. VER-00-018\n                                           ----------\n\nTHIS SOFTWARE DEVELOPMENT AGREEMENT (this \"Agreement\") is made as of May 25,\n2000, by and between VeriFone, Inc, a division of HEWLETT-PACKARD COMPANY, a\nDelaware corporation (\"HP\"), and LYNUXWORKS, INC., a California corporation\n(\"Developer\").\n\n1.   DEFINITIONS\n\n     1.1   \"Developer Code\" shall mean the BlueCat Linux Operating System and\n           ----------------\n           Cross Development Environment software source code existing as of the\n           date of this Agreement which is incorporated into the source code of\n           the Software. The \"BlueCat Lynx Operating System and Cross\n           Development Environment contains non-GPL code, as developed by\n           LynuxWorks. This non-GPL code will be available under this Agreement\n           in binary form only. The license terms for the non-GPL code\n           (including VisualLynx) will be stated in section 4 herein.\n\n     1.2   \"Development Program\" shall mean the activities undertaken by the\n           ---------------------\n           parties hereunder for the development of the Software and\n           Documentation satisfying the Specifications pursuant to this\n           Agreement.\n\n     1.3   \"Development Work\" shall mean the Software, Documentation and all\n           ------------------\n           other results and items arising out of the Development Program,\n           including without limitation, all Deliverables, programming\n           materials, source code and binary code for the GPL portions of the\n           code, binaries for the non-GPL portions of the code, inventions,\n           designs, notes, records, memoranda, documentation and other\n           materials, as well as all Enhancements, derivatives and modifications\n           thereof, and all intellectual property rights thereto.\n\n     1.4   \"Deliverables\" shall mean the Software, Documentation and other\n           --------------\n           materials to be delivered by Developer to HP with respect to each\n           Milestone.\n\n     1.5   \"Documentation\" shall mean the reference, implementation and user\n           ---------------\n           manuals which describe in reasonable detail the operation of the\n           Software that is normally provided by Developer as part of its\n           deliveries to its customers.\n\n     1.6   \"Enhancements\" shall mean error corrections, bug fixes, modifications\n           --------------\n           and updates with respect to the Software.\n\n     1.7   \"HP Property\" shall mean all property, including, designs, software,\n           ------------- \n           documentation, models, tools, devices and other materials, owned or\n           licensed to HP, which may be furnished to Developer by HP under this\n           Agreement.\n\n     1.8   \"Milestone\" shall mean each development or delivery milestone of the\n           ----------\n           Development Program as set forth in the \"Milestone Schedule\" attached\n           hereto as Exhibit B. \"Milestone Payment\" means a payment obligation\n           related to the achievement and acceptance of a particular Milestone.\n\n     1.9   \"Software\" shall mean the computer software program(s) described in\n           ---------\n           Exhibit A to be developed by Developer pursuant to the Development\n           Program, together-with all Enhancements made thereunder.\n                    \n     1.10  \"Source Code\" shall mean the readable forms together with make and\n           ------------\n           build files.\n\n     CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY\n     WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT\n     TO THE OMITTED POTIONS.\n\n                                       1\n\n\n     1.11  \"Specifications\" shall mean the specifications set forth in Exhibit A\n           ----------------                                            ---------\n           for the Software to be developed hereunder.\n \n2.  DEVELOPMENT EFFORT\n\n     2.1  Development. Commencing upon the execution of this Agreement,\n          ------------ \nDeveloper agrees to use its commercially reasonable efforts to perform its\nobligations under the Development Program, to achieve each Milestone and to\ndeliver Deliverables, which satisfy the test criteria specified in Exhibit A,\nsection 7.0.\n\n     2.2  Subcontractors.  Developer may subcontract the performance of the\n          --------------\nDevelopment Program to third parties, provided that each such subcontractor\nshall have agreed in writing to be bound by terms and conditions at least as\nstringent and restrictive as the terms and conditions of this Agreement and the\nlicense agreement covering the non-GPL code, including in particular Sections 4,\n7 and 10.\n\n     2.3  Program Management and Changes. Each party designated the person(s)\n          -------------------------------\nset forth in Exhibit D as the primary contact of each party with respect to this\nAgreement, which person(s) may be redesignated by a party by notice to the\nother. In the event of a necessary or desired change in any material aspect of\nthe Development Program, the parties shall mutually agree to any such change in\nwriting prior to its implementation. A proposed change shall be initiated by the\nproposing party in a written notice to the other party. The receiving party\nshall review such proposal in a timely manner. The parties agree to discuss in\ngood-faith the effect on each party of such proposed change, including any\neffect on the binary and\/or cost of the Development Program.\n\n3.   DELIVERY AND ACCEPTANCE\n\n     3.1  Delivery.  Upon completion of each Milestone for which Developer is\n          ---------\nresponsible, Developer shall promptly notify HP and deliver to HP the\ncorresponding Deliverables.  Prior to the delivery of any Deliverable, Developer\nwill have performed its internal testing to assure that such Deliverable\nconforms to the Specifications.  Deliverables shall be in source code and binary\ncode for the GPL portions of the Software and in binary code forms for the non-\nGPL Deliverable portions.  Deliverables consisting of Documentation shall be in\nboth human-readable and electronic formats.\n\n     3.2  Acceptance:\n          -----------\n\n          a. Upon Developer's delivery to HP of Deliverables with respect to a\n             milestone, HP will evaluate whether such Deliverables conform to\n             the applicable Specifications pursuant to the acceptance test\n             criteria and acceptance procedure detailed in 3.2. HP will give\n             Developer written notice of acceptance or rejection of Deliverable\n             within 15 business days after receipt of the Deliverable (the\n             \"Acceptance Period\"). If a statement of rejection is given:\n\n                Developer agrees to make commercially reasonable efforts to\n                correct all nonconformities to Specifications as stated by HP\n                and redeliver the corrected Deliverables for acceptance within\n                fifteen (15) business days or as agreed to between the parties\n                after receipt of such notice of rejection.\n\n          b. A Milestone shall be deemed completed with Deliverables with\n             respect to that Milestone accepted by HP, only when HP provides a\n             written acceptance notice to Developer; \n\n\n\n                                       2\n\n\n\n             provided, however, if HP fails to provide such an acceptance notice\n             or a statement of rejection to Developer within Acceptance Period,\n             such Deliverables will be deemed accepted by HP.\n\n          c. In the event that Developer fails to deliver to HP acceptable\n             Deliverables for any Milestone within sixty (60) days after the\n             original Milestone date therefor, or after three (3) attempts to\n             correct stated nonconformities to Specifications, HP may in its\n             sole option, terminate this Agreement pursuant to section 8, Term\n             and Termination.\n\n     3.3  License.  Once all Deliverables have been accepted by HP, Developer\n          -------                                                            \n          agrees to commercially license the Software arising out of such\n          Development Work within a commercially reasonable time period after\n          the Development Work is complete. Developer understands that the\n          payments made by HP hereunder are to expedite Developer's development\n          of the Software so that HP can purchase the commercial Software\n          product resulting from such Development when such Development is\n          complete.\n\n4.   OWNERSHIP AND LICENSES\n\n     4.1  Ownership and License:\n          ----------------------\n\n          a.  Portions of the Developer Code are open source and may be\n              distributed under the terms of the GNU General Public License\n              (GPL), which terms are located at\n              http:\/\/www.gnu.org\/copyleft\/gpl.html or other open source license\n              ------------------------------------ \n              modules and which are incorporated herein by reference. Except as\n              may otherwise be permitted, the Software, Documentation,\n              Enhancements and other Development Work shall also be governed by\n              the terms of the GPL. To the extent that the Software,\n              Documentation, Enhancements and other Development Work or any part\n              thereof falls outside the scope of Section 2 of the GPL, HP shall\n              own Confidential Information that HP owned prior to the Agreement\n              and for which it provided under this Agreement to Developer and\n              Developer shall own the Software and any modifications to the\n              Software, Documentation, Enhancements and other Development Work.\n              Except for any Confidential Information of HP, Developer shall\n              have the right to use, sell, sublicense and distribute the\n              Software, Documentation, Enhancements and any other Development\n              Work to third parties. In any event the non-GPL code will be\n              delivered in binary form to HP as a Deliverable as otherwise\n              required by this Agreement. To the extent not covered by the grant\n              of license in the GPL or other open source licenses, Developer\n              hereby grants to HP and its subsidiaries and affiliates a non-\n              exclusive, worldwide, perpetual, irrevocable right and license,\n              including the right to sublicense, to use, reproduce, modify and\n              distribute the Software, Documentation, Enhancements and other\n              Development Work to any third parties, subject to the royalty\n              provisions in Exhibit B stated herein.\n\n     4.2  Developer Code. Notwithstanding any provision to the contrary,\n          --------------\n          Developer shall own and retain all right, title and interest it may\n          have in the Developer Code incorporated within the Software existing\n          as of the effective date of this of this Agreement. With respect to\n          such Developer Code incorporated within the Software, Developer hereby\n          grants to HP a non-exclusive, world-wide, perpetual right and license,\n          subject to applicable royalty provisions, in Exhibit B including the\n          right to sublicense, to use, reproduce, modify, display and distribute\n          the Developer Code, in binary code only, solely as part of the\n          Software unless such Developer Code is governed by the GPL or other\n          open source provisions. In such case, such provisions shall apply.\n\n\n\n                                       3\n\n\n     4.3  HP Property. HP hereby grants to Developer a non-exclusive, royalty-\n          -----------\n          free, non-transferable internal license to use the HP Property and\n          intellectual property embodied therein, for the sole purpose of\n          performing Developer's obligation under this Agreement. No HP Property\n          may be provided to any third party without the prior written approval\n          by HP, unless otherwise required by the GPL or other open source\n          license. All HP Property shall returned immediately upon HP's request.\n\n5.  MAINTENANCE AND SUPPORT\n \n     5.1  Maintenance and Support for Software. Developer agrees to provide to\n          ------------------------------------\n          HP the maintenance and support services as set forth in Exhibit C for\n          the duration of this Agreement. Maintenance and support thereafter\n          shall be governed by a separate and independent agreement. Except as\n          otherwise agreed in writing between HP and Developer, HP will be\n          responsible for all maintenance and support of the Software with\n          respect to any end-users.\n\n     5.2  Product Evolution. The parties anticipate that HP may from time to\n          -----------------\n          time request additional functionalities to be made to the Software.\n          Upon request by HP, Developer agrees to make such adaptations, or\n          develop such enhancements on terms and conditions to be mutually\n          agreed upon in writing, which may provide for additional payments by\n          HP to Developer. The fee for any such adaptations or enhancements\n          shall be at the Developer's then current rates.\n\n     5.3  Additional Developer Services. Upon request by HP, Developer agrees to\n          -----------------------------\n          negotiate in good faith with HP with respect to providing additional\n          maintenance, support or other service with respect to the Software for\n          HP and\/or its customers.\n\n6.   COST AND FEES\n\n     6.1  Development Costs. In consideration of the development activities to\n          -----------------\n          undertaken by Developer hereunder, HP will pay Developer an aggregate\n          amount of [*] Dollars ($[*]), payable in installments in accordance\n          with the Milestones Schedule.\n\n     6.2  Payment Process. Unless otherwise agreed in writing, Milestone\n          ---------------     \n          payments will be made within thirty (30) days after acceptance by HP\n          of the Deliverables associated with such Milestones. The payment\n          milestones are as follows:\n\n          [*] ([*]%) percent of the Development costs upon [*]\n          [*] ([*]%) percent of the Development costs upon [*].\n\n7.   WARRANTIES AND INDEMNIFICATION\n\n     7.1  General Warranty. Each party warrants that it has full power and\n          -----------------\n          authority to enter into this Agreement, perform its obligations\n          hereunder, and grant the rights to the other party granted herein.\n\n     7.2  Media Warranty. Developer warrants that the physical media of the\n          ---------------\n          disks supplied to HP shall contain true and correct copies of the\n          Software developed under this Agreement and shall be free from defects\n          in workmanship and materials. HP's remedy for breach of the foregoing\n          warranty shall be replacement of the defective disk.\n\n          [*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED\n          SEPARAELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN\n          REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.\n\n                                       4\n\n\n\n\n     7.3  No Infringement. To the extent that the Deliverables are not governed\n          ----------------\n          by the provisions of the GPL, Developer warrants that the Deliverables\n          delivered to HP hereunder do not violate or infringe any patent,\n          copyright, trade secret or other proprietary right of any third party,\n          and that Developer is not aware of any facts upon which such a claim\n          for infringement could be based. Developer makes no warranties as to\n          the Developer's Code and\/or \"work based on the Program\" as that term\n          is used in the GPL; such code and\/or work is governed by Section 11 of\n          the GPL.\n\n     7.4  Infringement Defense. Developer will defend any claim, suit, or\n          ---------------------\n          proceeding brought against HP or its customers insofar as it is based\n          on a claim arising out of Developer's breach of Section 7.3, above;\n          provided that Developer is notified promptly in writing of such claim,\n          and given full authority, information and assistance (at Developer's\n          expense) to handle the expense to handle the defense or settlement of\n          any suit or proceeding. Developer agrees to pay all damages and costs\n          awarded therein against HP and its customers.\n\n     7.5  In case the Deliverables, or any part thereof not governed by the GPL,\n          is held to constitute an infringement and its use is enjoined,\n          Developer shall, at its own expense and at its option, either procure\n          for HP and its customers the right to continue to use or, if\n          applicable, replace such Deliverable or Documentation with\n          noninfringing program or documentation of equivalent function and\n          performance, or modify them so they become noninfringing without\n          detracting from function or performance.\n\n     7.6  Notwithstanding the forgoing, Developer shall have no responsibility\n          for claims arising from (i) modifications of the Software or\n          Documentation made by HP if such claim would not have arisen but for\n          such modifications, or (ii) combination or use of the Software or\n          Documentation with HP products if such claim would not have arisen but\n          for such combination or use.\n\n     7.7  Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER\n          --------\n          PARTY MAKES ANY OTHER WARRANTIES OR CONDITIONS, EITHER EXPRESS OR\n          IMPLIED, REGARDING THE SOFTWARE AND RELATED DOCUMENTATION, INCLUDING\n          WITHOUT LIMITATION AS TO THEIR MERCHANTABILITY OR FITNESS FOR ANY\n          PARTICULAR PURPOSE.\n\n     7.8  Program Warranty. Developer warrants that, as of the time of\n          ----------------\n          acceptance, the Software will operate in accordance with and\n          substantially conform to the Documentation and the test criteria\n          stated in Exhibit A, section 7.0, manuals and any relevant data\n          sheet(s) provided by Developer.\n\n8.   TERM AND TERMINATION\n\n     8.1  Term. Unless terminated earlier under this Section 8, this Agreement\n          -----\n          will terminate upon delivery and acceptance of the final Milestone and\n          fulfillment of all obligations by Developer hereunder.\n\n     8.2  Termination for Breach. HP may terminate this Agreement by written\n          -----------------------\n          notice to Developer if Developer breaches any material provision of\n          this Agreement and such Breach is not cured within thirty (30) days\n          after receipt of written notice thereof from HP.\n\n     8.3  Effect of Termination.\n          ----------------------\n\n          a.  In the event of termination by HP due to the material breach of\n              Developer prior to delivery and acceptance of the final Software\n              to HP, Developer shall immediately deliver to HP all HP property\n              and information in Developer's possession relating to the\n\n\n                                       5\n\n\n              Software. In the event of such termination, HP shall be relieved\n              of all obligations to make payment for any Deliverables that were\n              not accepted by HP. This provision shall not limit or waive any\n              other remedies that HP may have under law or equity.\n\n          b.  Survival. Notwithstanding any termination of this Agreement, the\n              following provisions shall survive for the period specified\n              therein, if any; Sections 4.1 and 4.2 (Ownership and Licenses);\n              Section 7 (Warranties and Indemnification); Section 9 (Limited\n              Liability); Section 10 (Confidential Information); and Section 11\n              (Other Provisions).\n\n9.   LIMITED LIABIITY\n\n     9.1  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR\n          CONSEQUENTIAL OR SPECIAL DAMAGES ARISING FROM ANY CLAIM OR ACTION\n          HEREUNDER, BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY. IN NO EVENT\n          SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES FOR ANY CAUSE\n          WHATSOEVER IN AN AMOUNT IN EXCESS OF THE AMOUNT PAYABLE TO DEVELOPER\n          UNDER THIS AGREEMENT, EXCEPT FOR DAMAGES RELATING TO BREACHES\n          CONCERNING SECTIONS 7.3 AND 10.\n\n10.  CONFIDENTIAL INFORMATION\n\n     10.1  Confidential Information. During the term of this Agreement, either\n           ------------------------\n           party may receive or have access to technical information, as well as\n           information about product plans and strategies, promotions, customers\n           and related non-technical business information which the disclosing\n           party considers to be confidential (\"Confidential Information\"). In\n           the event such information is disclosed, the parties shall first\n           agree to disclose and receive such information in confidence. If then\n           disclosed, the information shall (i) be marked as confidential at the\n           time of disclosure, or (ii) if disclosed orally but stated to be\n           confidential, be designated as confidential in writing by the\n           disclosing party summarizing the Confidential Information disclosed\n           and sent to the receiving party within a reasonable period of time\n           after such oral disclosure. Notwithstanding any provision to the\n           contrary, all source code provided by Developer or HP to the other,\n           and all business information with respect to any unpublished\n           Developer or HP products, are deemed Confidential Information for the\n           purposes of this Section 10.\n\n     10.2  Nondisclosure. Confidential Information may be used by the receiving\n           --------------\n           party only with respect to performance of its obligations under this\n           Agreement, and only by those employees of the receiving party who\n           have a need to know such information for the purposes related to this\n           Agreement. The receiving party shall protect the Confidential\n           Information of the disclosing party by using the same degree of care\n           (but no less than a reasonable degree of care) to prevent the\n           unauthorized use, dissemination or publication of such Confidential\n           Information, as the receiving party uses to protect its own\n           confidential information of like nature. The receiving party's\n           obligation under this Section 10 shall be for a period of ten (10)\n           years after the date of disclosure.\n\n     10.3  The foregoing obligation shall not apply to any information which is\n           (i) already known by the receiving party prior to disclosure; (ii)\n           publicly available through no fault of the receiving party; (iii)\n           rightfully received from a third party without a duty of\n           confidentially (iv) disclosed by the disclosing party to a third\n           party without a duty of confidentially on such third party; (v)\n           independently developed by the receiving party prior to or\n           independent of the disclosure; \n\n\n\n                                       6\n\n           (vi) disclosed under operation of law; or (vii) disclosed by the\n           receiving party with the disclosing party's prior written approval.\n\n     10.4  Access to Information Systems. Access, if any, to HP's systems is\n           ------------------------------    \n           granted solely to perform the Work under this Agreement, and is\n           limited to those specific HP systems time periods and personnel as\n           are separately agreed to by HP and Developer from time to time. HP\n           may require Developer's employees, Subcontractors or agents to sign\n           individual agreements prior to access to HP's systems. Use of any\n           other HP systems is expressly prohibited. This prohibition applies\n           even when an HP system that Developer is authorized to access serves\n           as a gateway to other systems outside the Developer's scope of\n           authorization. Developer agrees to access systems only from specific\n           locations approved for access by HP. For access outside of HP\n           premises, HP will designate the specific network connections to be\n           used to access systems.\n\n     10.5  Security of Information. Without limiting the foregoing, Developer\n           ------------------------    \n           agrees to maintain security measures to comply with the above\n           obligations and to ensure that access granted will not impair the\n           integrity and availability of HP systems. Upon reasonable notice, HP\n           may audit Developer to verify Developer's compliance with these\n           obligations.\n\n \n11.  OTHER PROVISIONS\n\n     11.1  Publicity. Each party agrees not to publish or disclose the existence\n           ---------\n           or terms of this Agreement to any third party without the prior\n           written consent of the other except as required by law. In\n           particular, no press releases shall be made without the mutual\n           written consent of each party, nor may Developer use HP marks or HP's\n           name as a customer reference. Notwithstanding the previous sentence,\n           the parties agree to issue a joint press release concerning this\n           program at the earliest convenient date after Agreement execution.\n\n     11.2  Independent Contractors. The relationship of the parties under this\n           -----------------------\n           Agreement is that of independent contractors, and neither party is an\n           employee, agent, partner or joint venturer of the other.\n\n     11.3  Dispute Resolution. In the event of disagreement with respect to any\n           -------------------    \n           aspect of this Agreement, the parties agree to discuss in good-faith\n           to reach an amicable resolution, and to escalate such resolution\n           process to the appropriate members of their respective management\n           organization who have the power and authority to achieve a successful\n           resolution.\n\n     11.4  Notice.  Unless otherwise stated, all notices required under this\n           ------- \n           Agreement shall be in writing and shall be considered given upon\n           personal delivery of the written notice or within forty eight (48)\n           hours after deposit in the U.S. Mail, certified or registered, and\n           addressed to the appropriate relationship manager as set forth in\n           Exhibit D.\n\n     11.5  No Assignment. Neither party may assign or transfer any of the rights\n           --------------     \n           or responsibilities set forth herein, or change its control of\n           ownership, without the express written consent of the other party\n           (which consent shall not be unreasonably withheld or delayed) and any\n           purported attempt to do so shall be deemed void. Notwithstanding the\n           foregoing, such written consent is not required in the event of a\n           merger or sale of all or substantially all of the assets of either\n           company, in which case this Agreement shall be assigned to the\n           surviving entity.\n\n     11.6  Governing Law. This Agreement is made under and shall be construed in\n           --------------\n           accordance with the law of the State of California, without reference\n           to conflict of laws principles.\n\n\n\n                                       7\n\n \n     11.7  Severability. The terms of this Agreement shall be applicable\n           -------------\n           severally to each Software program, if more than one, and any dispute\n           affecting either party's rights or obligations as to one or more\n           Software program(s) shall not affect the rights granted hereunder as\n           to any other Software program. If any provision of this Agreement is\n           held to be invalid or unenforceable by a court of competent\n           jurisdiction, then the remaining provisions will nevertheless remain\n           in full force and effect, and the parties will negotiate in good-\n           faith a substitute, valid and enforceable provision which most nearly\n           effects the parties' intent in entering into this Agreement.\n\n     11.8  Headings. The captions of and headings used in this Agreement are for\n           ---------\n           convenience of reference only and are not to be considered in any way\n           as material terms or be used to interpret the provisions of this\n           Agreement.\n\n     11.9  No Use Obligation. Except as expressly provided herein, HP may in its\n           ------------------\n           sole discretion decide whether or not to use or distribute the\n           Software as it deems appropriate. Nothing in this Agreement shall be\n           construed or interpreted as placing a \"best efforts\" standard upon HP\n           with respect to the use and distribution of the Software.\n\n     11.10 Non-Restrictive Relationship. Nothing in this Agreement shall be\n           -----------------------------\n           construed to preclude HP from independently developing, acquiring\n           from other third parties, distributing or marketing software programs\n           or other products which may perform the same or similar functions as\n           the Software provided under this Agreement.\n\n11.11  Modifications.  This Agreement may only be modified only by a writing\n       --------------                                                      \n       signed by an authorized representative of each party.\n\n11.12  Waiver.  Neither party's failure to exercise any of its rights hereunder\n       -------                                                                 \n       shall constitute or be deemed a waiver or forfeiture of any such rights.\n\n11.13  Force Majeure.  Nonperformance of either party will be excused to the\n       --------------                                                       \n       extent that performance is rendered impossible by strike, fire, flood,\n       governmental acts or orders or restrictions, or other similar reason\n       where failure to perform is beyond the control and not caused by the\n       negligence of the non-performing party, provided that the non-performing\n       party gives prompt notice of such conditions to the other party and makes\n       all reasonable efforts to perform.\n\n11.14  Export Control.  Each party agrees to comply with all applicable United\n       ---------------                                                        \n       States laws and regulations which may govern the export of Software\n       abroad, including the Export Administration Act of 1979, as amended, any\n       successor legislation, and the Export Administration Regulations issued\n       by the Department of Commerce.\n\n11.15  Entire Agreement.   This document represents the entire agreement between\n       -----------------                                                        \n       the parties as to the matter set forth herein and supersedes all prior\n       discussions or understandings between them.\n\n11.16  Exhibits.  Each Exhibit referred to in this Agreement is incorporated in\n       ---------                                                               \n       full in this Agreement whatever reference to it is made:\n\n       EXHIBIT A    SOFTWARE DESCRIPTION AND STATEMENT OF WORK\n\n       EXHIBIT B    ROYALTIES AND PRICING\n\n       EXHIBIT C    SUPPORT AND MAINTENANCE\n\n       EXHIBIT D    RELATIONSHIP MANAGERS\n\n11.17  Counterparts.  This Agreement may be executed in counterparts, each of\n       -------------                                                         \n       which shall be deemed an original.\n\n\n\n                                       8\n\n\n\nAgreed:\n\nHEWLETT-PACKARD COMPANY                DEVELOPER\n\nBy: \/s\/ Mario Gonzalez                 By: \/s\/ Bhupi Singh                  \n   ---------------------------------      ----------------------------------\n                                                                        \nPrinted Name: Mario Gonzalez           Printed Name: Bhupi Singh   \n             -----------------------                ------------------------\n                                                                        \nTitle: Controller                      Title: V.P. Finance &amp; CFO\n      ------------------------------         -------------------------------\n\nJennifer\/LynuxWorks\/hp.software.dev.051700\n\n                                       9\n\n \n                                   Exhibit A\n                           SOFTWARE DESCRIPTION AND\n                         DEVELOPMENT STATEMENT OF WORK\n\nSoftware:\n-------- \n\nBlueCat Linux Operating System and Cross Development Environment for the [*]\nmicroprocessor.\n\nThis includes [*] cross (VisualLynuxWorks) and. Cogent Computer Systems [*]\nMotherboard with [*] CPU Module, which will be the reference platform.\n\nSpecifications:\n-------------- \n\nStatement of Work\n\n1.0 Introduction\nThis Exhibit provides the Statement of Work for the Development Program.\n\n2.0 Project Description\n\nThe Development Program is to create a version of the BlueCat Linux Operating\nSystem operating on the [*] microprocessor. The development environment shall be\nbased on [*] and Microsoft [*] or later. This development environment is called,\nat the time of this contract execution, \"VisualLynx.\"\n\nThe Development Program also includes the development of Flash File System (FFS)\nand Advanced Power Management (APM) for BlueCat Linux. The FFS and APM\nrequirements are described below.\n\n3.0 Requirements\n\n.    3.1 BlueCat Linux for [*]          \n\n     BlueCat Linux 2.0 shall be ported to run on the [*] microprocessor. The\n     \"reference platform\" for this port shall be the [*] Computer Systems [*]\n     Motherboard with the [*] CPU Module. BlueCat Linux shall run in [*] mode.\n     BlueCat Linux shall support programs written in both C and C++.\n\n.    3.2 VisualLynx for [*]\n\n     VisualLynx shall be ported to support BlueCat Linux and the [*]. The host\n     platform will be a Microsoft Windows 98\/NT based personal computer running\n     Microsoft [*] or later. The VisualLynx GNU debugger (gdb) shall use the\n     [*]. VisualLynx shall provide support for developing C or C++ applications.\n     BlueCat Linux kernel or driver development shall be supported using the\n     underlying GNU tools.\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                                       10\n\n \n.    3.3 FFS\n\n     Flash File System (FFS) shall be provided to run with the BlueCat Linux\n     operating system on the [*]. The FFS shall support the [*] device, [*], or\n     its equivalent. Developer and HP shall develop a mutually agreeable\n     requirements specification for FFS. The following FFS requirements have\n     been tentatively identified.\n\n        -  [*] and [*] support\n        -  [*]\n        -  [*] mapping\n        -  [*] recovery\n\n.    3.4 APM\n\n     Advanced Power Management (APM) shall be provided to run with the BlueCat\n     Linux operating system on the [*]. Developer and HP shall develop a\n     mutually agreeable requirements specification for APM. The following APM\n     requirements have been tentatively identified:\n\n        -  [*]\n        -  [*]\n        -  [*] and [*] Monitoring\n        -  [*] Mode\n        -  [*] control\n\n4.0  Non-Requirements\n\nThe following have been deemed non-requirements as they have not been considered\nin the scope of this project:\n\n.    4.1 VisualLynx for BlueCat Linux kernel\n\n     VisualLynx provides an application development environment for\n     LynuxWorks\/'\/ LynxOS and BlueCat Linux operating systems. This application\n     development environment is highly integrated with Microsoft Visual C++.\n     VisualLynx does not currently provide the ability to develop and debug\n     operating system kernel or driver software. However, bundled with\n     VisualLynx are the standard GNU development tools. These GNU development\n     tools have been modified to run on Microsoft Windows in a \"command window\"\n     (or sometimes called a \"DOS window\") and may be used to perform operating\n     system kernel and driver development.\n\n5.0  Deliverables\n\nFollowing are the deliverables for the project. Tstart is defined to be start of\nthe development efforts described above and shall be no later than the execution\ndate of this agreement.\n\n.    BlueCat Linux Development Environment for Windows (including\n     VisualLynx)\n          \n     Alpha Release: Tstart + [*] months\n\n     Final Release: Tstart + [*] months\n\n.    BlueCat Linux Flash File System\n\n     Alpha Release: TBD (based on finalizing requirements between Developer and \n     HP)\n\n\n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEN OMITTED AND FILED SEPARATELY WITH\nTHE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE\nOMITTED PORTIONS.\n\n                                       11\n\n \n     Final Release: TBD\n\n.    BlueCat Linux Advanced Power Management\n\n     Alpha Release: TBD (based on finalizing requirements between Developer and \n     HP)\n\n     Final Release: TBD\n\n\n6.0  Software Quality Assurance\n\nLynuxWorks shall develop all software associated with this Statement of Work to\nestablished LynuxWorks' ISO 9001 practices and procedures.\n\n7.0  Acceptance Test Criteria\n\nValid acceptance of the BlueCat [*] port shall be the ability for Developer to\ndemonstrate and HP to reproduce the following:\n\n.    Successful installation of VisualLynx for BlueCat Linux onto an HP owned\n     [*] cross development workstation with a VeriFone supplied copy of Visual\n     C++ Version 6.0.\n\n.    Successful build on this Windows workstation of the acceptance tests\n     targeting the [*] reference platform.\n\n.    Successful execution and debugging of the acceptance test demo applications\n     running on the reference platform, debugging with GDB from the Windows\n     NT\/98 workstation across both serial and Ethernet connections.\n\n.    Successful execution of the FFS acceptance test demonstrating\n     integrity during power fail.\n\n.    Successful execution of the APM acceptance test.\n\n\nHP must provide all acceptance tests, which must be acceptable to Developer, to\nDeveloper no later than 2 months prior to scheduled deliveries against which the\ntests will be executed.\n\n\n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEN OMITTED AND FILED SEPARATELY WITH\nTHE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE\nOMITTED PORTIONS.\n\n                                       12\n\n \n                                   Exhibit B\n                             ROYALTIES AND PRICING\n\n1.1  BlueCat Lynux Run-Time License Royalty Price\n     --------------------------------------------\n\nThe BlueCat OS run-time royalty fee is $[*].\n\n1.2  BlueCat Lynux Operating System Source Code\n     -------------------------------------------\n\nSource code for the BlueCat Lynux operating system kernel and Linux utilities is\nincluded with the standard Cross Development Environment at no additional\ncharge.\n\n1.3  VisualLynx Run-Time Pricing\n     ---------------------------\n\nThe run-time royalties license price for VisualLynx will be: $[*] per seat for a\nsingle unit quantity.\n\n\n1.4  LynuxWorks Product Training\n     ---------------------------\n\nStandard Factory Training is offered in the form of the following BlueCat\nworkshop:\n\n.  Building Embedded Systems with BlueCat Linux\n.  On-Site Training (customized for your application requirement)\n\nThese workshops are offered on a repeating scheduled basis in San Jose. All\nworkshops are 5 days in length and are $[*] per student.\n\nOn-Site training can be obtained for any of the four training programs to be\npresented at a customer site, plus options, as follows:\n\n.  Standard Workshops conducted at customer location\n.  Customer provides the hardware to be used for the training class\n.  Workshops are typically [*] to [*] days in length\n\nOn-site training at the customer site is $[*] plus travel and expenses for a\nclass of up to [*] students. Additional students beyond the original [*] may be\nadded at a cost of $[*] per student with a maximum of 5 additional students.\n\n1.5  HP Board Support Package Validation\n     -----------------------------------\n\nIn addition to providing a standard reference platform for the [*] processor,\nDeveloper's Professional Services Organization offers a standard Board Support\nPackage validation service available for a mutually agreed upon fee per hardware\nplatform. The final price for this service is based on the complexity and custom\nnature of the HP's hardware platform, so this is discussed and agreed upon in\nadvance between Developer and HP.\n\n1.6  Support Pricing\n     ---------------\n\nLynx will provide Priority Support pursuant to the terms contained in that \nseparate agreement at the price of $[*] per year per developer.\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                                       13\n\n \n                                   Exhibit C\n                            MAINTENANCE AND SUPPORT\n\nPrior to the alpha release of the Deliverables, Developer shall provide support\nto the BlueCat product, pursuant to the Priority Support Agreement, contained in\na separate Agreement.  After the release of the alpha release by Developerof the\nDeliverables (currently expected to be BlueCat, FlashFile and Advanced Power\nManagement), Developer's engineering staff will provide support until the time\nof final release for Deliverables, pursuant to the terms of the Priority Support\nAgreement, contained under a separate agreement.  Points of contact will be\nestablished under those agreements.\n\nAfter the final release of the Deliverables, Developer will provide support for\nthe Deliverables by the Customer Support organization, pursuant to the Priority\nSupport Agreement.\n\n\n\n                                       14\n\n \n                                   EXHIBIT D\n                             RELATIONSHIP MANAGERS\n\nThe relationship manager for Developer is:  Rick Iorillo\n                                            ---------------------------\n                              PHONE:        408-626-2616\n                                     ----------------------------------\n                              E-MAIL:       riorillo@lynx.com\n                                     ----------------------------------\n\n\nThe relationship manager for HP is:         \n                                      Lance Nakamura\n                                      ----------------------------------\n                              PHONE:  805-625-3207                           \n                                      ----------------------------------\n                              E-MAIL: lance_nakamura@hp.com\n                                     ----------------------------------\n\n\n                                       15\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8098],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9620],"class_list":["post-42797","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-lynuxworks-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42797","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42797"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42797"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42797"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42797"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}