AVID DRAFT JUNE 29, 1998
GEMINI-NT FILE CLIENT SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
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AUGMENT SYSTEMS, Inc., a Delaware corporation with its principal place of
business located at Two Xxxxxxx Road, Westford, MA 01886-4113 ("Augment"),
hereby agrees to license certain Software (as that term is herein defined) to
Avid Technology, Inc., a Delaware corporation with a place of business located
at Metropolitan Technology Park, Xxx Xxxx Xxxx, Xxxxxxxxx, XX 00000 ("Avid")
pursuant to the terms and conditions set forth herein, all as of June 30, 1998.
Whereas, Augment has developed certain proprietary software for the
transfer and storage of large files over local and wide area networks;
Whereas, Avid is interested in developing a real-time video shared storage
subsystem and has evaluated the feasibility of using and/or modifying
Augment's proprietary software for use in such a shared storage system;
Whereas, Avid wishes to license certain of Augment's proprietary software
for the purpose of this product development;
Now Therefore, for good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree:
Section 1. DEFINITIONS.
The following italicized terms shall have the correspondent meanings set
forth below.
"Agreement" shall mean this Gemini-NT File Client Software License and
Distribution Agreement and any schedules hereto, including any amendments,
revisions, additions, or deletions thereto.
"Avid Derived Works" shall mean modifications based upon or derivative
works of the Software in any form.
"Augment Field of Use" shall mean the Geographical Information Systems
Field of Use, the Medical Imaging Systems Field of Use and the Printing and
Publishing Field of Use, but shall not include the Avid Field of Use.
"Avid Field of Use" shall mean software, systems and processes relating to
(i) the capture, creation, manipulation, storage, transmission, management
and/or display of film, video or other motion images or audio (including,
without limitation, still-frame images intended to be used in motion
images); or (ii) news or broadcast production. The Avid Field of Use shall
not include the Augment Field of Use.
"Binary Code" shall refer to copies of the Software, including any Software
incorporating Avid Derived Works, in binary language, stored in whatever
media.
"Bug" shall mean any error in the Software which causes repeated
malfunctions in the operations or functions of the Software.
"Designated Location" shall mean Avid's current facility at Metropolitan
Technology Park, Xxx Xxxx Xxxx, Xxxxxxxxx, XX 00000, other Avid research
and development sites identified on Schedule D hereto, and such other
locations at which Avid shall conduct research and development from time to
time, provided, however, that no Designated Location (other than the
Designated Locations identified on Schedule D) shall be outside of the
United States.
"Geographical Information Systems Field of Use" shall mean the following
processes or activities which utilize a large database of terrain data and
scan, digitize, or enhance for analysis, including but not limited to
photogrammetry, land visualization, satellite image acquisition and
enhancement, spatial information systems, digital orthophoto, digital image
acquisition, mapping, and aerial photography.
"Independent Contractor" shall mean any Person (other than employees of
Avid) to whom Avid grants access to the Source Code.
"Medical Imaging Systems Field of Use" shall mean the following processes
or activities which utilize a large database of computer enhanced
two-dimensional or three-dimensional data for medical analysis, including
but not limited to MRI, CT, radiology (x-ray), radiology information
systems, healthcare information systems, nuclear medicine, ultrasound, cine
imagery, teleradiology, picture archiving and communications systems,
mini-PACS, digital imaging communications in medicine, and diagnostic
viewing.
"Person" shall mean and include any individual, partnership, joint venture,
firm, limited liability company, corporation, association, trust, or other
enterprise, or any entity or agency of local, state, federal, or foreign
government.
"Printing and Publishing Field of Use" shall mean processes or activities
which utilize a database of image and text data, and which data is scanned,
digitized, manipulated or enhanced for display or printing in the following
industries: newspapers (SIC 2711); periodicals (SIC 2721); book publishing
(SIC 2731); book printing (SIC 2732); miscellaneous publishing (SIC 2741);
commercial printing, lithographic (SIC2752); commercial printing, gravure
(SIC 2754); commercial printing, n.e.c. (SIC 2759); manifold business forms
(SIC 2761); greeting cards (SIC 2771); blankbooks and loose-leaf binders
(SIC 2782); bookbinding and related work (SIC 2789); printing trade
services (SIC 279); in-house printing; in-plant printing; graphic design;
advertising design (SIC 731).
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"Proprietary Information" shall have the meaning ascribed to it in the
Bilateral Confidentiality Agreement by and between Augment and Avid (the
"Confidentiality Agreement"), attached as hereto as Schedule B and
incorporated into this Agreement.
"Software" shall mean each computer program described in Schedule A to this
Agreement.
"Source Code" shall refer to copies of the Software in any source code
language, in whatever form.
Section 2. GRANT OF SOURCE CODE LICENSE.
(a) Augment hereby grants to Avid a non-exclusive, irrevocable, perpetual
license to use, modify, copy, or make derivative works of the Source Code
to the extent expressly provided in this Section 2 and solely at the
Designated Location for the consideration set forth in Section 2(c) and
subject to the terms and conditions otherwise set forth in this Agreement
(the "Source Code License"). Subject to the terms and conditions of this
Agreement, Augment further grants to Avid a non-exclusive, irrevocable,
perpetual license under any patents, copyrights, trade secrets or other
intellectual property rights owned or licensed by Augment at any time
during the terms of this Agreement to the extent necessary to exercise any
right and license granted under this Agreement. The Source Code License is
non-transferable, non-assignable, and without the right to sub-license,
except in connection with the sale to any Person (a "Permitted
Sublicensee") of a line of Avid's business that includes the transfer of
substantially all rights in one or more products related to the Software
and all obligations under this Agreement. Notwithstanding any other
provision in this Agreement, the Source Code License shall not include any
right to market, distribute, or publicly perform or display any form of the
Source Code, or to make the Source Code available to any Person that is not
an employee or an Independent Contractor or Permitted Sublicensee of Avid
modifying or making derivative works of the Software on behalf of Avid.
(b) RIGHTS GRANTED BY THE SOURCE CODE.
(i) Avid shall exclusively own all right, title, and interest in any
Avid Derived Works of the Source Code and associated Binary Code
only to the extent of Avid's modifications or alterations to the
Source Code.
(ii) Avid agrees to give notice of Augment's proprietary interest in
the Software and the provisions of this Agreement to any Avid
employee to whom the Source Code is made available. Avid shall
require any Independent Contractor granted access to or
information about the Source Code to execute a Non-Disclosure
Agreement containing substantially the provisions in the form
attached as Schedule C.
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(iii) In no case shall Avid have any ownership interest in Augment's
SOURCE CODE OR preexisting work embodied in the Software, nor
shall any aspect of the Source Code License affect the scope,
duration, ownership, or substance of Augment's ownership
interest in the SOURCE CODE OR THE Software.
(c) Consideration. As consideration for the Source Code License, Avid agrees to
pay to Augment, upon the execution of this Agreement by both parties, one
hundred thousand dollars (US $100,000.00) (the "Source Code
Consideration"). The Source Code Consideration shall take the form of a
check or wire transfer to a financial institution of Augment's selection
and the delivery thereof shall be a condition precedent to Augment's
obligations under the Source Code License.
(d) Change of Designated Location. Upon the written request of Augment, Avid
shall provide Augment with a list of the Designated Locations where the
Source Code is maintained.
(e) Acknowledgment of Source Code. Upon receipt of the Source Code, Avid shall
sign a hard copy reproduction of the Source Code acknowledging receipt of
the Source Code.
(f) Bug Notification. For a period of one year from the date of execution of
this Agreement and to the extent reasonably practicable, Avid and Augment
agree to notify each other of any Bugs discovered by the respective parties
or by any third party with access to the Software acting on such party's
behalf. Such notification shall include any available information on
conditions under which the Bug arises and any other relevant data
concerning the existence of such Bug.
Section 3. GRANT OF BINARY CODE LICENSE.
(a) Except as provided in Section 10(e) of this Agreement, Augment grants to
Avid a non-exclusive worldwide irrevocable perpetual license to use, copy,
modify, prepare derivative works of, market, distribute, sell and
sublicense the Binary Code (including any Binary Code incorporating Avid
Derived Works) for the consideration set forth in Section 3(d)(i) and (ii),
subject to the terms and conditions otherwise set forth in this Agreement
(the "Binary Code License"). The Binary Code License permits Avid to
license the Binary Code to end-users, resellers, distributors, VARs, and
OEMs. Such resellers, distributors, VARs, and OEMs may grants sublicenses
to end users. Within forty-five (45) days of the end of each calendar
quarter, Avid agrees to provide Augment a report indicating royalties due
and payment received of or for all licenses granted during such calendar
quarter.
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(b) Avid hereby grants to Augment (and any certified public accountant
designated by Augment) the right to audit Avid's books and records relative
to the Binary Code License on reasonable prior written notice and during
Avid's normal business hours. Such audits shall not take place more than
twice per calendar year. In the event that such review determines that Avid
has underrepresented licensing royalties by more than ten percent (10%) in
any period, Avid shall assume the reasonable cost of such review, and, in
addition to the royalties due, shall immediately pay to Augment a late
payment charge of 1.5% per month based on royalties due.
(c) All Avid licenses or sub-licenses of Binary Code shall contain customary
prohibitions against the sublicensee's decompilation and modification of
the Software, except to the extent that such prohibitions are restricted by
law.
(d) Consideration.
(i) Binary Code Royalty. As consideration for the Binary Code
License, and subject to the provisions of Sections 3(d)(iii)
and 3(d)(iv) of this Agreement, Avid agrees to pay Augment a
royalty (the "Binary Code Royalty") on all of Avid's
sublicenses of the Software (including on sublicenses granted
by VARs, OEMs, resellers, and distributors insofar as such
VARs, OEMs, resellers, or distributors copy the Binary Code and
distribute such copies, and do not merely sublicense copies of
the Binary Code as provided by Avid), based upon the following
marginal rate schedule. Only one (1) royalty payment per copy
of the Software shall be due. Payments shall be due within
forty-five (45) days of the end of each calendar quarter in
which such sublicenses were granted. Avid shall be entitled to
grant up to seventy five (75) sublicenses of the Software for
evaluation, demonstration, or similar purposes without the
payment of the Binary Code Royalty hereunder.
COPY SUB-LICENCED MARGINAL BINARY CODE ROYALTY
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Copy #1 through #4,999 US $ 100.00 per copy
Copy #5,000 through #9,999 US $75.00 per copy
Copy #10,000 through #12,499 US $50.00 per copy
Copy # 12,500 or greater US $0.00 per copy
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For example, if Avid sublicensed 13,100 copies of the Binary
Code, the total Binary Code Royalty owed to Augment would be US
$999,775 ($499,900 for copies 1 through 4,999; $374,925 for
copies 5,000 through 9,999; $124,950 for copies 10,000 through
12,499; and $0 for copies 12,500 through 13,100).
(ii) Incremental Royalty on Certain Sales. As further consideration
for the Binary Code License, in the event that Avid or any Avid
VAR, OEM, reseller, or distributor sublicenses the Binary Code
(including any Binary Code incorporating Avid Derived Works) or
the Mac Software (as defined below) or any derivations of the
Mac Software created by or on behalf of Avid for use primarily
in the Augment Field of Use, Avid agrees to pay Augment (in
addition to the royalty set forth in Section 3(d)(i) above), an
incremental royalty on each such sublicense in the amount of
two thousand dollars (US $2,000) within thirty (30) days after
written notification thereof from Augment. In the event Augment
does not so notify Avid within one hundred eighty (180) days of
the sublicense or thirty days after the date that Augment
receives actual notice of such sublicense, whichever is
earlier, then no incremental royalty will be required to be
paid.
(iii) Entertainment Market Buyout. At any time prior to 5:00 pm on
December 31, 1998, Avid, in its sole discretion, may elect to
make a lump sum payment (the "Entertainment Buyout") of two
hundred and fifty thousand dollars (US $250,000)
("Entertainment Buyout Fee") in lieu of the Binary Code Royalty
for sub-licenses of the Binary Code in the Avid Field of Use.
If Avid elects to pay the Entertainment Buyout Fee, the Binary
Code License in the Avid Field of Use shall thereafter be fully
paid up and royalty free for an unlimited number of copies.
Election of the Entertainment Buyout shall be effective upon
Augment's receipt of the Entertainment Buyout Fee; Augment's
failure to receive the Entertainment Buyout Fee by 5:00 pm on
December 31, 1998 shall constitute a waiver of the
Entertainment Buyout.
(iv) `Other Market' Buyout. At any time prior to 5:00 pm on December
31, 1998, Avid, in its sole discretion, may elect to make a lump
sum payment of two hundred and fifty thousand dollars (US
$250,000) ("`Other Market' Buyout Fee") in lieu of the Binary
Code Royalty for sub-licenses of the Binary Code to all markets
except
(A) the Augment Field of Use; and
(B) the Avid Field of Use.
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If Avid elects to pay the `Other Market' Buyout, all
sub-licenses of Binary Code in all markets other than those
listed in this Section 3(iv)(A) and (B) shall thereafter be
fully paid up and royalty free for an unlimited number of
copies. Election of the `Other Market' Buyout shall be effective
upon Augment's receipt of the `Other Market' Buyout Fee;
Augment's failure to receive the `Other Market' Buyout Fee by
5:00 pm on December 31, 1998 shall constitute a waiver of the
`Other Market' Buyout.
(v) The parties acknowledge and agree that Augment and Polybus
Systems Corporation ("Polybus") are parties to a certain
agreement dated August 1, 1996 (the "Polybus Agreement")
related to the development and license of Augment's existing
AFX 410 network file server system (the "AFX Software"). The
Polybus Agreement contains a certain non-competition provision
pursuant to which Polybus agreed not to license, sell, or
transfer the AFX Software to any party for a purpose that
competes with Augment in the Printing and Publishing Field of
Use without the express written consent of Augment (the
"Polybus Non-compete"). Avid and Polybus are presently
negotiating an agreement regarding the license, modification
and distribution of a certain computer program (the "Mac
Software") which implements a Macintosh file system client and
was derived from the AFX Software. Augment agrees that the
Polybus Non-compete shall not apply to Avid or Polybus with
respect to any license, sale, or transfer of the Mac Software
by Avid in the Augment Field of Use, provided that any such
license, sale, or transfer shall be governed by the terms of
Section 3(d)(ii) above.
Section 4. OWNERSHIP OF THE SOFTWARE.
(a) Avid acknowledges that all right, title and interest, including all
patents, copyrights, and trade secret rights, in the Software (except
for Avid's right to ownership of the Avid Derived Works expressly set
forth in Section 2(a)(i)) are the exclusive property of Augment or its
assigns. Avid further acknowledges that nothing contained in this
Agreement shall be construed to convey any rights or proprietary
interest in the Software, other than the specific licenses granted
hereunder. Avid covenants that it shall not, at any time, challenge or
contest the validity, ownership, title in and to the Software (except
for Avid's right to ownership of the Avid Derived Works expressly set
forth in Section 2(a)(i)) or the validity of the Agreement. Avid agrees
to execute any documents that Augment may reasonably request from time
to time so as to ensure that all right, title, and interest in and to
the Software (except for Avid's right to ownership of the Avid Derived
Works expressly set forth in Section 2(a)(i)) resides in Augment.
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(b) Augment acknowledges that all right, title and interest, including all
patents, copyrights, and trade secret rights, in the Avid Derived Works
(except for Augment's right to ownership of the preexisting works
embodied in the Software) are the exclusive property of Avid or its
assigns. Augment further acknowledges that nothing contained in this
Agreement shall be construed to convey any rights or proprietary
interest in the Avid Derived Works. Augment covenants that it shall
not, at any time, challenge or contest the validity, ownership, title
in and to the Avid Derived Works (except for Augment's right to
ownership of the preexisting works embodied in the Software) or the
validity of the Agreement. Augment agrees to execute any documents that
Avid may reasonably request from time to time so as to ensure that all
right, title, and interest in and to the Avid Derived Works (except for
Augment's right to ownership of the preexisting works embodied in the
Software) resides in Avid.
Section 5. SOFTWARE SUPPORT.
Augment agrees to provide a total of twenty (20) hours of telephone
support service ("Telephone Support") to assist Avid in development of
Avid Derived Works, without additional cost to Avid. This Telephone
Support shall consist of not more than five (5) hours of service in any
seven (7) day period, and in any event shall be concluded (whether or
not all 20 hours are requested or provided) no later than three (3)
months from the date hereof. In addition, Augment will make available
to Avid an Augment representative who is reasonably knowledgeable and
trained in the operation of the Software (the "Representative") who
will assist Avid with installation of the Software for a period of two
(2) consecutive days. Such Representative shall, in Augment's sole
discretion provide service to Avid either at Augment's facility in San
Diego, California, or at the Designated Location.
Section 6. AUGMENT INDEMNIFICATION.
(a) Augment shall defend or, at its option, settle (with Avid's written
consent, which shall not be unreasonably withheld), any claim or
proceeding brought against Avid to the extent that it is based on an
assertion that the Software, as provided to Avid, infringes any patent,
copyright, trade secret or other intellectual property right of any
third party and shall indemnify Avid against all costs, damages, and
expenses (including reasonable attorneys fees) finally awarded against
Avid which result from any such claim, provided that Avid shall notify
Augment promptly in writing of any such claim or proceeding and gives
Augment full and complete authority, information, and assistance to
defend such claim or proceeding, and further provided that Avid gives
Augment sole control of the defense of any such claim or proceeding and
all negotiations for its compromise or settlement. No delay on the part
of Avid in notifying Augment shall relieve Augment from any obligation
hereunder unless (and then solely to the extent) Augment thereby is
prejudiced. Should any Software, as
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provided by Augment, become, or in Augment's opinion be likely to
become, the subject of a claim of infringement, Augment shall have the
right, at Augment's option and expense:
(i) to procure for Avid the right to continue using it; or
(ii) to replace or modify it with a non-infringing version of
substantially equivalent function and performance.
(b) Augment shall have no liability or obligation to Avid hereunder for any
infringement to the extent based upon:
(i) the combination of the Software with other products not produced
by Augment if such infringement would not have arisen but for such
combination;
(ii) any use of Software in the practice of a process not authorized
pursuant to this Agreement; or
(iii) modifications by Avid to the Software if such infringement would
not have arisen but for such modifications.
(c) Augment shall have no obligation for any costs incurred by Avid without
Augment's prior written authorization. In no event shall Augment's
liability to indemnify Avid hereunder exceed the amounts paid by Avid
to Augment for the infringing Software. In the event that Avid incurs
or suffers any costs, damages, liabilities or expenses in excess of
Augment's indemnification obligation ("Infringement Costs"), the total
amount of such Infringement Costs shall be treated as prepaid royalties
under Section 3(d) hereof.
Section 7. AVID INDEMNIFICATION.
(a) Avid shall defend or, at its option, settle (with Augment's written
consent, which shall not be unreasonably withheld), any claim or
proceeding brought against Augment to the extent that it is based on an
assertion that Avid Derived Works infringe any patent, copyright, trade
secret or other intellectual property right of any third party and
shall indemnify Augment against all costs, damages, and expenses
(including reasonable attorneys fees) finally awarded against Augment
which result from any such claim, provided that Augment shall notify
Avid promptly in writing of any such claim or proceeding and gives Avid
full and complete authority, information, and assistance to defend such
claim or proceeding, and further provided that Augment gives Avid sole
control of the defense of any such claim or proceeding and all
negotiations for its compromise or settlement. No delay on the part of
Augment in notifying Avid shall relieve Avid from any obligation
hereunder unless (and then solely to the extent) Avid thereby is
prejudiced.
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(b) Avid shall have no liability or obligation to Augment hereunder for any
infringement to the extent based upon:
(i) to the extent based on the Software as provided by Augment;
(ii) the combination of the Avid Derived Software with other products
not manufactured, sold or licensed by Avid if such infringement
would not have arisen but for such combination;
(iii) modifications to Avid Derived Software not made or authorized by
Avid if such infringement would not have arisen but for such
modifications.
(c) Avid shall have no obligation for any costs incurred by Augment without
Avid's prior written authorization.
Section 8. Warranty; Disclaimers; Limitation of Liability.
(a) Augment and Avid warrant and represent to one another that that they have
the right, power, and authority to enter into this Agreement; that this
Agreement has been duly executed and delivered; and that this Agreement
does not contravene any other agreement to which either Augment or Avid is
party or either of their charters or organizational documents.
(b) Augment further represents and warrants to Avid as follows:
(i) Augment has full and exclusive right to grant all licenses and
rights granted herein, and that the Software does not infringe
any patents, copyrights, trade secrets, or other proprietary
rights of any third party; and
(ii) The Software shall conform in all material respects to the
specifications and functions set forth in Schedule A.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, AUGMENT SHALL NOT BE
DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS
TO THE CONDITION, MERCHANTABILITY, DESIGN, OPERATION, OR FITNESS FOR A
PARTICULAR PURPOSE OF THE SOFTWARE OR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR WRITTEN, WITH
RESPECT TO THE SOFTWARE.
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(d) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL,
CONSEQUENTIAL, OR TORT DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
Section 9. PROPRIETARY RIGHTS; NON-DISCLOSURE.
(a) The terms and conditions of the Confidentiality Agreement are incorporated
herein by reference and shall govern the disclosure of Proprietary
Information by one party to the other party hereunder. Notwithstanding the
terms of the Confidentiality Agreement, each party shall have the right and
license to use the other party's Proprietary Information to the extent
provided by Licenses herein for the purposes of this Agreement.
(b) Each party's obligations to protect the confidential and proprietary nature
of Proprietary Information shall survive any termination or expiration of
these licenses for any reason.
Section 10. TERMINATION.
(a) This Agreement shall be effective on the date first above written and shall
remain in force until terminated as provided below.
(b) Avid, at its option, shall have the right to terminate this Agreement at
any time. Any such termination shall be made by written notice to Augment
and shall become effective thirty (30) days after giving such notice.
(c) If Avid fails to make payments as provided herein, or in the event of a
material and continuing breach by Avid of its obligations, Augment may
serve written notice of a breach upon Avid which identifies the breach.
With respect to a payment breach or a breach of the Confidentiality
Agreement, unless such breach is cured to both parties' reasonable
satisfaction within ten (10) business days from receipt of notice by Avid,
Augment may thereupon, at its option (which shall be exercised within one
hundred twenty (120) days of service of such notice of breach), immediately
terminate this Agreement. With respect to non-payment breaches by Avid that
do not relate to violations of the Confidentiality Agreement, unless such
breach is cured to both parties' reasonable satisfaction within thirty (30)
calendar days from receipt of notice by Avid, Augment, at its option (which
shall be exercised within one hundred twenty days of service of notice of
such breach) may immediately terminate this Agreement.
(d) Termination of this Agreement for any reason will not excuse Avid of its
obligations to make payments due under this Agreement nor shall it
terminate the effectiveness of any term of this Agreement that specifically
survives the Agreement's termination. Upon termination of this Agreement
for any reason, Avid shall promptly return (or, at
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Augment's election, destroy) all Proprietary Information relating to the
Source Code, the Object Code, or the Software, in any form; provided
however that if the Agreement is terminated by Avid solely on the basis of
Section 10(b), Avid may retain one copy of the Software in Source Code form
subject to all of the restrictions set forth in this Agreement, but without
the right to modify, alter, or make derivative copies of the Source Code.
(e) In the event that Avid willfully or repeatedly markets Avid Derived Works
or targets for marketing efforts Avid Derived Works in the Augment Field of
Use, Augment shall have the option, which may be exercised in its sole
discretion, to terminate this Agreement upon not less than 10 business
days' notice to Avid.
Section 11. FREEDOM OF INDEPENDENT DEVELOPMENT
Nothing in this Agreement shall be construed as prohibiting or restricting
either party from independently developing or acquiring and marketing
materials or programs that are competitive with the Software except as
otherwise expressly provided herein; provided, however, that nothing in
this Section 11 shall grant to Avid a property interest in any of Augment's
copyrights, trademarks, patents, or trade secrets or waive any rights that
Augment arising at law or from this Agreement.
Section 12. GENERAL.
(a) This Agreement and the schedules hereto constitute and incorporate the
parties' entire agreement with respect to the subject matter, and supersede
any and all prior oral and written agreements or understandings. No waiver,
alteration, modification, or cancellation of any of the provisions of this
Agreement shall be binding unless made in writing and signed by Augment.
The failure of either party at any time or times to require performance of
any provision hereof shall in no manner affect that party's right at a
later time to enforce such provision.
(b) Neither Augment nor Avid shall be liable for any delay or failure to take
any action required hereunder (except for payment) due to any cause beyond
the reasonable control of Augment or Avid, as the case may be, including,
but not limited to, unavailability or shortages of labor, materials, or
equipment, failure or delays in the delivery of vendors and suppliers, or
delays in transportation.
(c) This Agreement, and the transactions to which it relates, will be governed
by and construed and enforced in accordance with the law of the
Commonwealth of Massachusetts, excluding its choice of law rules to the
contrary. Any claims or legal actions by one party against the other shall
be commenced and maintained in the Commonwealth of Massachusetts, and both
parties hereby submit to the jurisdiction and venue of any such court.
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(d) If any provision of this Agreement is held to be unenforceable, the
remaining portions of this Agreement shall remain in full force and effect.
(e) Regardless of any disclosure by Avid to Augment of the ultimate destination
of any Software, Avid will not directly or indirectly export any Software
without first obtaining the appropriate United States export license.
(f) This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, assigns, and legal
representatives. The provisions of this Agreement are not intended to be
for the benefit of any creditor of either party.
(g) Avid represents that it had free access to capable legal counsel in the
negotiation of this Agreement, and therefore any maxim, rule, or law of
interpretation by which contracts are construed against their drafter shall
be inapplicable in the interpretation of this Agreement.
(h) Nothing in this Agreement shall create a partnership for any purpose.
(i) This Agreement may be executed in several counterparts and, as so executed,
shall constitute one contract binding on both parties hereto,
notwithstanding that all of the parties have not signed the same
counterpart.
(j) For purposes of interpretation of this Agreement and unless the context
otherwise requires, the singular shall include the plural; the masculine
gender shall include the feminine and neuter, and vice versa; and the word
"or" in non-exclusive.
(k) Notices to Avid shall be addressed to Avid Technology, Inc., Xxx Xxxx Xxxx,
Xxxxxxxxx, XX 00000, Attn: Senior Vice President of Professional Products,
with a copy to Attn: General Counsel; notices to Augment shall be addressed
to Augment Systems, Inc. 0 Xxxxxxx Xxxx Xxxxxxxx, XX 00000-0000, Attn.
President. Except as otherwise provided, any and all notices required under
this Agreement shall be in writing and effective (i) on the fourth business
day after being sent by registered or certified mail, return receipt
requested, postage prepaid; (ii) on the first business day after being sent
by express mail, or commercial overnight delivery service providing a
receipt for delivery; (iii) on the date of hand delivery; or (iv) on the
date actually received, if sent by any other method.
(l) Except as otherwise expressly provided, no term, condition, obligation or
benefit of this Agreement may be assigned or delegated, in whole or in
part, by Augment; provided however that Augment may assign its rights to
payments arising out of this Agreement.
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In witness whereof, the parties hereto have executed this Agreement under
seal as of the day and year first above written.
Augment Systems, Inc.
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By:
Title:
Avid TechnologY, Inc.
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By:
Title:
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Schedule A
SOFTWARE AND SPECIFICATIONS
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GEMINI - NT CLIENT SOFTWARE - DESCRIPTION
The Gemini - NT Client Software is designed to operate on computers that utilize
the Client or Server versions of the Windows NT 4.0 Operating System, with
Service Pac 3, and 1 or 2 Intel Pentium or Digital Equipment Corporation Alpha
computer processing units. The Gemini - NT Client Software used in conjunction
with the OSR (Open Systems Resources) `wrapper', and a suitable protocol
transport mechanism (Fibre channel etc.) to access a remote file server. The
server must support the Polybus File Transfer Protocol (including access
control). Messages destined for the remote server are converted to a subset of
the CIFS protocol, prior to conversion to Polybus format (this is included to
support future standards conformance). The code comprises of the following.
AVID FOLDER
AFXCLIENT FOLDER
1 Core redirector
Directory: NetRedir
Files: Access.c, Access.h, Attr.c, Attr.h, Buffers.c, Buffers.h,
Connect.c, Connect.h, Create.c, Create.h, Ctrl.c,
Ctrl.h, Dir.c, Dir.h, E, Entry.c, Entry.h, Enum.c,
Enum.h, enumservers.c, enumservers.h, Lookup.c,
Lookup.h, Makefile, Misc.c, Misc.h, rdAhead.c,
rdAhead.h, Redircmn.h, Sources, Trace.c, Trace.h,
Types.h, wrBehind.c, Wrbehind.h
This module includes the following functionality:
Implementation of the OSR wrapper interface Management of the
system, volume and file structures as required by the OSR
interface. Access control in conjunction with the user mode
service Read ahead and write behind buffering to improve
sequential access performance Volume mounting functionality
Volume and directory enumeration File/directory
create/rename/delete File open/read/write/flush/close File
attribute management Program execution trace mechanism for
debugging
All output (with the exception of access control) is in a modified CIFS format
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2 CIFS DRIVER
Directory: Cifs
Files: cifsconnect.c, cifsconnect.h, cifscreate.c, cifscreate.h,
Cifsdata.c, Cifsdata.h, Cifsfind.c, Cifsfind.h,
Cifsinfo.c, Cifsinfo.h, Cifsmisc.c, Cifsmisc.h,
cifstypes.h, Makefile, Sources
This module converts CIFS calls from the core redirector into Polybus
protocol function calls. It maintains a CIFS state machine.
3 FILE PROTOCOL DRIVER
Directory: FsDrv
Files: FsApi.c, FsNtStatus.c, Makefile, Sources
This module marshals incoming file system calls and parameters into
Polybus protocol message blocks. Responses from the file server are
parsed and converted back into local parameters. Macintosh endian and
time format conversions are also performed.
4 ACCESS PROTOCOL DRIVER
Directory: AsDrv
Files: AsApi.c, Makefile, Sources
This module marshals incoming access calls and parameters into Polybus
protocol message blocks. Responses from the access server are parsed
and converted back into local parameters. Macintosh endian and time
format conversions are also performed.
5 SERVICE
Directory: Service
Files: Afxsvc.c, Afxsvc.def, Afxsvc.h, Afxsvc, Afxsvc.rc, Build,
Control.c, Makefile, Resource.h, Service.c, Service.h,
Small
The user mode service provides access control functions. On behalf of
the redirector it converts SID's (NT security descriptors) into NT user
names. When appropriate it prompts the user for a corresponding
password.
6 NETWORK PROVIDER
Directory: NetProvider
Files:Afxnp.c, Afxnp.h, Afxprov.def, Afxprov.src, Makefile, Makefile.
inc, npconnect.c, npconnect.h, npenumerate.c, npenumerate.h,
Npmisc.c, Npmisc.h, Nptypes.h, Sources
The user mode network provider provides user mode volume mounting and
volume/directory enumeration interfaces. These are implemented by calls
to the core redirector code.
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7 COMMON INCLUDE
Directory: Include
Files: Afxdef.h, AsApi.h, AtApi.h, BaseTypes.h, Cifsapi.h, FsApi.h
, FsCommon.h, Log.h, MsgCommon.h, traceDef.h
A number of common include file are provided..
8 COMMON MESSAGES
Directory: MsgCommon
Files: Makefile, MsgCommon.c, Sources
9 AT INTERFACE
Directory: AtInterface
Files: Atapi.c, Makefile, Sources
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Schedule B
BILATERAL CONFIDENTIALITY AGREEMENT
With respect to the Gemini-NT File Client Software License and
Distribution Agreement ("License Agreement") by and between Avid Technology,
Inc. ("Avid") and Augment Systems, Inc. ("Augment") to which this Schedule B is
attached, the parties agree as follows. The party disclosing confidential or
proprietary information will be referred to as the "DISCLOSING PARTY" and the
party receiving the confidential or proprietary information will be referred to
as the "RECEIVING PARTY".
1. The parties intend to license technology pursuant to the License
Agreement, and that it may be necessary for the DISCLOSING PARTY to
transfer to the RECEIVING PARTY information of a proprietary nature,
including, but not limited to processes, trade secrets, copyrights,
customer lists, proprietary computer programs (including Source Code)
hardware configurations and other business and technical practices and
information of a confidential nature ("Proprietary Information"). The
Proprietary Information specifically includes the Software, as defined
in the License Agreement between Avid and Augment executed as of the
date hereof, including all materials, specifications, algorithms, trade
secrets, and data related thereto.
2. The RECEIVING PARTY agrees that it will not disclose any Proprietary
Information to any other party (other than its employees who are
directly participating in work involving the DISCLOSING PARTY's
products and who are contractually bound to protect the confidentiality
of such Proprietary Information, including Independent Contractors who
have executed a Non-Disclosure Agreement provided in Schedule C), and
that it will use its best efforts to prevent any such disclosure of
Proprietary Information. Avid and Augment hereby agree that any breach
of a Non-Disclosure Agreement on the part of any Independent Contractor
shall be deemed a breach of Avid's obligations under this paragraph 2.
3. The limitations on disclosure or use of Proprietary Information shall
not apply to, and the RECEIVING PARTY shall not be liable for
disclosure or use of Proprietary Information with respect to which the
RECEIVING PARTY proves using tangible evidence that any of the
following conditions exist: (a) If, prior to the receipt thereof from
the DISCLOSING PARTY, it has been developed independently by the
RECEIVING PARTY, or was lawfully known to the RECEIVING PARTY. (b) If,
subsequent to the receipt thereof (i) it is published by the DISCLOSING
PARTY or is disclosed by the DISCLOSING PARTY to others, without
restriction, or (ii) it has been lawfully obtained by the RECEIVING
PARTY from other sources, provided such other source did not receive it
due to a breach of Schedule B, Schedule C, or the License Agreement, or
(iii) it otherwise comes within the public knowledge or becomes
generally known to the public.
4. Except as otherwise expressly provided, in the License Agreement all
Proprietary Information shall be and remain the property of the
DISCLOSING PARTY, and all embodiments and copies thereof, upon the
written request of the DISCLOSING PARTY, shall be promptly returned to
the DISCLOSING PARTY or destroyed (in which case the RECEIVING PARTY
shall certify to the DISCLOSING PARTY as to its destruction), at the
DISCLOSING PARTY's option.
5. The RECEIVING PARTY acknowledges that the DISCLOSING PARTY's products
and technical data must be licensed for export under the regulations of
the United States Department
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of Commerce. Regardless of any disclosure made by the RECEIVING PARTY
to the DISCLOSING PARTY or its distributors, resellers, VARs, and OEMs
(as set forth in the License Agreement) of an ultimate destination of
the products, the RECEIVING PARTY will not export or re-export, either
directly or indirectly, any products or systems incorporating such
product without first obtaining all required licenses from the United
States Government.
7. The RECEIVING PARTY acknowledges and agrees that the restrictions
contained in this Schedule B are necessary for the protection of the
business and property of the DISCLOSING PARTY, and considers them to be
reasonable for such purpose. The RECEIVING PARTY agrees that any breach
of this Agreement may cause the DISCLOSING PARTY substantial and
irreparable damage and therefore, in the event of any such breach, the
RECEIVING PARTY agrees that the DISCLOSING PARTY shall be entitled to
specific performance and other injunctive relief, in addition to such
other remedies as may be afforded by applicable law, without being
required to post a bond.
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Schedule C
Non-Disclosure Agreement (Independent Contractor)
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PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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TO : Avid Technology, Inc.
Metropolitan Technology Park
0 Xxxx Xxxx
Xxxxxxxxx, XX 00000 As of
The undersigned, in consideration of and as a condition of my consulting
arrangement by you and/or by companies which you own, or are affiliated with or
their successors in business (collectively the "Company"), hereby agrees as
follows:
1. CONFIDENTIALITY
I agree to keep confidential, except as the Company may otherwise
consent in writing not to disclose or make any use of at any time either
during or subsequent to my consulting arrangement any Inventions (as
hereinafter defined), trade secrets, confidential information,
knowledge, data or other information of the Company relating to
products, processes, know-how, designs, formulas, test data, customer
lists, business plans, marketing plans and strategies, or other subject
matter pertaining to any business of the Company or any of its
affiliates, which I may produce, obtain, or otherwise acquire during the
course of my consulting relationship except as herein provided. I
further agree not to deliver, reproduce, or in any way allow any such
trade secrets, confidential information, knowledge, data or other
information, or any documentation relating thereto, to be delivered to
or used by any third parties without specific direction or consent of a
duly authorized representative of the Company.
2. CONFLICTING EMPLOYMENT; RETURN OF CONFIDENTIAL MATERIAL
I agree that during my consulting arrangement with the Company I
will not engage in any other employment, occupation, consulting or other
activity relating to the business in which the Company is now or may
hereafter become engaged, or which would otherwise conflict with my
obligations to the Company. In the event my consulting arrangement with
the Company terminates for any reason whatsoever, I agree to promptly
surrender and deliver to the Company all records, materials, equipment,
drawings, documents and data of which I may obtain or produce during the
course of my consulting arrangement, and I will not take with me any
description containing or pertaining to any confidential information,
knowledge or data of the Company which I may produce or obtain during
the course of my consulting arrangement.
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3. ASSIGNMENT OF INVENTIONS
3.1 I hereby acknowledge and agree that the Company is the owner of
all Inventions. In order to protect the Company's rights to such
Inventions, by executing this Agreement I hereby irrevocably
assign to the Company all my right, title and interest in and to
all Inventions to the Company.
3.2 For the purposes of this Agreement, "Inventions" shall mean all
discoveries, processes, designs, technologies, devices, or
improvements in any of the foregoing or other ideas, whether or
not patentable and whether or not reduced to practice, made or
conceived by me (whether solely or jointly with others) during the
period of my employment with the Company which relate in any
manner to the actual or demonstrably anticipated business, work,
or research and development of the Company, or result from or are
suggested by and any task assigned to me or any work performed by
me for or on behalf of the Company.
3.3 Any discovery, process, design, technology, device, or improvement
in any of the foregoing or other ideas, whether or not patentable
and whether or not reduced to practice, made or conceived by me
(whether solely or jointly with others) which I develop entirely
on my own time not using any of the Company's equipment, supplies,
facilities, or trade secret information ("Personal Invention") is
excluded from this Agreement provide such Personal Invention:
a) does not relate to the actual or demonstrably anticipated
business, research and development of the Company, and
b) does not result, directly or indirectly, from any work
performed by me for the Company.
4. DISCLOSURE OF INVENTIONS
I agree that in connection with any Invention, I will promptly
disclose such Invention to my immediate superior at the Company in order
to permit the Company to enforce its property rights to such Invention
in accordance with this Agreement. My disclosure shall be received in
confidence by the Company.
5. PATENTS AND COPYRIGHTS; EXECUTION OF DOCUMENTS
5.1 Upon request, I agree to assist the Company or its nominee (at its
expense) during and at any time subsequent to my consulting
arrangement in every reasonable way to obtain for its own benefit
patents and copyrights for Inventions in any and all countries.
Such patents and copyrights shall be and remain the sole and
exclusive property of the Company or its nominee. I agree to
perform such lawful acts as the Company deems to be necessary to
allow it to exercise all right, title and interest in and to such
patents and copyrights.
5.2 In connection with this Agreement, I agree to execute, acknowledge
and delivery to the Company or its nominee upon request and at its
expense all documents, including assignments of title, patent or
copyright applications, assignments of such applications,
assignments of patents or copyrights upon issuance, as the Company
may determine necessary or desirable to protect the Company's or
its nominee's interest in Inventions, and/or to use in obtaining
patents or copyrights in any and all countries and to vest title
thereto in the Company or its nominee to any of the foregoing.
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6. MAINTENANCE OF RECORDS
I agree to keep and maintain adequate and current written
records of all Inventions made by me (in the form of notes, sketches,
drawings and other records as may be specified by the Company), which
records shall be available to and remain the sole property of the
Company at all times.
7. PRIOR INVENTIONS
It is understood that all Personal Inventions, if any, whether
patented or unpatented, which I made prior to my employment by the
Company, are excluded from this Agreement.
8. OTHER OBLIGATIONS
I acknowledge that the Company from time to time may have
agreements with other persons or with the U.S. Government or agencies
thereof, which impose obligations or restrictions on the Company
regarding Inventions made during the course of work thereunder or
regarding the confidential nature of such work. I agree to be bound by
all such obligations and restrictions and to take all action necessary
to discharge the Company's obligations.
9. TRADE SECRETS OF OTHERS
I represent that my performance of all the terms of this
Agreement and as a consultant of the Company does not and will not
breach any agreement to keep confidential proprietary information,
knowledge or data acquired by me in confidence or in trust prior to my
consulting arrangement with the Company, and I will not disclose to the
Company, or induce the Company to use, any confidential or proprietary
information or material belonging to any previous employer or others. I
agree not to enter into any agreement either written or oral in conflict
herewith.
10. MODIFICATION
I agree that any subsequent change or changes in my consulting
duties, salary, or compensation or, if applicable, in any Consulting
Agreement between the Company and me, shall not affect the validity or
scope of this Agreement.
11. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon my heirs, executors,
administrators or other legal representatives and is for the benefit of
the Company, its successors and assigns.
12. INTERPRETATION
It is the intent of the parties that in case any one or more of
the provisions contained in this Agreement shall, for any reason, be
held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of
this Agreement, and this Agreement shall be construed as if such
invalid, illegal, or unenforceable provision had never been contained
herein.
Moreover, it is the intent of the parties that in case any one
or more of the provisions contained in this Agreement shall for any
reason be held to be excessively broad as to duration, geographical
scope, activity or subject, such provision shall be construed by
limiting and reducing it, so as to be enforceable to the maximum extent
compatible with applicable law.
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13. WAIVERS
If either party should waive any breach of any provision of this
Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any provision of this
Agreement.
14. COMPLETE AGREEMENT; AMENDMENTS
I acknowledge receipt of this Agreement, and agree that with
respect to the subject matter thereof it is my entire Agreement with the
Company, superseding any previous oral or written communications,
discussions, representations, understandings, or agreements with the
Company or any officer or representative thereof.
Any amendment of this agreement or waiver by either party of any
right hereunder shall be effective only if evidenced by a written
instrument executed by the parties hereto, and, in the case of the
Company, upon written authorization of the Company's Board of Directors.
15. HEADINGS
The headings of the sections hereof are inserted for convenience
only and shall not be deemed to constitute a part hereof nor to affect
the meaning thereof.
16. COUNTERPARTS
This Agreement may be signed in two counterparts, each of which
shall be deemed an original and both of which shall together constitute
one agreement.
17. GOVERNING LAW
This Agreement shall be governed and construed under
Massachusetts law.
Accepted and Agreed:
CONSULTANT AVID TECHNOLOGY, INC.
_______________________________ ___________________________________
Name Employment Manager
Avid Technology, Inc.
_______________________________ ___________________________________
Date Date
Social Security Number
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Schedule D
DESIGNATED LOCATIONS
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