EXHIBIT 10.5
SOFTWARE CROSS LICENSE AGREEMENT
Terms and Conditions
This SOFTWARE CROSS LICENSE AGREEMENT ("Agreement") is entered into by and
between Liquid Audio, having its principal place of business at 000 Xxxxxxx
Xxxxxx Xxxxxxx Xxxx, XX 00000 ("Liquid Audio") and Adaptec, Inc., which includes
its wholly-owned subsidiaries and having its principal place of business at 000
Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000 ("Adaptec") and is effective the
12th day of June, ("Effective Date") 1998.
RECITALS
A. Liquid Audio is the developer and owner of the Liquid Music Player
CD software ("Player").
B. Adaptec is the developer and owner of Easy CD Creator version 4.x
and Toast version 4.x ("CD Software").
C. Adaptec wishes to obtain and Liquid Audio wishes to grant to
Adaptec the right to combine Player with CD Software as a commercial product
package for distribution, and to distribute an upgrade to CD Software that will
include Player.
D. Liquid Audio wishes to obtain and Adaptec wishes to grant to
Liquid Audio the right to distribute a subset of CD Software as an upgrade to
Player.
NOW, THEREFORE, for the mutual promises contained herein and for other
valuable consideration, the parties agree as follows.
1. LICENSE
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1.1 To Adaptec.
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1.1.1 License Grant. Liquid Audio grants to Adaptec a perpetual,
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worldwide license to copy or have copied by a manufacturing contractor, Player,
and to distribute it to its customers, directly or through its distribution
network as part of a package which will include at minimum Player and CD
Software "(Bundle"). Liquid Audio also grants to Adaptec a perpetual, worldwide
license to copy or have copied by a manufacturing contractor, Player and to
distribute it to its customers, directly or through its distribution network as
part of a package which is an upgrade to CD Software ("CD Software Upgrade").
1.1.2 Exclusive License. During the term of the Agreement,
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Liquid Audio will not license Player to any other party to include in a Bundle
containing such third party's product. During the term of the Agreement, Liquid
Audio will not
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enter into any licensing agreement with any manufacturer or distributor of CD
recording software or hardware.
1.1.3 Sub-license. Liquid Audio grants to Adaptec the right to
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sub-license Player, as part of a Bundle, to its OEMs.
1.1.4 Limitation. This license is limited to a Bundle or CD
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Software Upgrade that is connected to the current version of CD Software, and
does not include any subsequent versions of CD Software.
1.2 To Liquid Audio
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1.2.1 License Grant. Adaptec grants to Liquid Audio a perpetual,
worldwide, non-exclusive license to copy or have copied by a manufacturing
contractor, and without the right to sub-license, a subset of CD Software, which
is defined by the file listing indicated on Exhibit A ("Subset"), and to
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distribute the Subset to its customers, directly or through its distribution
network as part of Player.
2. ROYALTIES
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2.1 Royalties to Liquid Audio. In payment for the license for Player,
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Adaptec shall pay to Liquid Audio a one-time royalty fee covering all rights
described above of [*] payable as follows. There will be [*] the first payable
upon execution of this Agreement, the second payable upon delivery to Adaptec of
the Player code, is defined by the file listing indicated on Exhibit B, by
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Liquid Audio, and the third payable six (6) months after the delivery of Player
to Adaptec.
2.2 Royalties to Adaptec. In payment for the license for the Subset,
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Liquid Audio shall pay to Adaptec a per-unit fee of [*] on each copy of the
Player that is sold at a price of less than [*] Such royalties will be due and
owing in the end of each calendar quarter. Adaptec reserves the right to charge
Liquid Audio the lesser of one and one-half percent (1 1/2%) per month, or the
maximum amount permissible under law, on any royalties not paid within forty-
five (45) days after the end of the calendar quarter in which such royalties
accrued.
2.3 Reports to Adaptec. Within forty-five (45) days after the end of
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each calendar quarter, Liquid Audio will deliver to Adaptec a written report
("Report") stating the (i) number of copies of the Subset made by Liquid Audio
during that calendar quarter; (ii) the number of units of Player shipped by
Liquid Audio incorporating the Subset during the calendar quarter; and (iii)
such other information as Adaptec may from time to time require. Reports will be
signed by a corporate officer of Liquid Audio, and will be sent to the following
address:
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* Certain information in this Exhibit has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect
to the omitted portions.
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Revenue Accounting Manager
Adaptec, Inc.
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Liquid Audio will deliver a Report for each calendar quarter, even if no
royalties were incurred during that calendar quarter.
2.4 Reports to Liquid Audio. Within forty-five (45) days after the
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end of each calendar quarter, Adaptec will deliver to Liquid Audio a written
report stating the (i) number or copies of Player made by Adaptec during the
calendar quarter; (ii) the number of units of Bundle or CD Software Upgrade
which included Player distributed or sold during the calendar quarter; and (iii)
such other information as Liquid Audio may from time to time require.
3. AUDIT: TAXES
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3.1 Audit. Liquid Audio will maintain at Liquid Audio's principal
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office such accurate books and records relating to the Subset as will be
sufficient to confirm Liquid Audio's compliance with this Agreement. Liquid
Audio will permit Adaptec and/or Adaptec's representatives to audit such books
and records as may reasonably be required to verify compliance with this
Agreement, at such times as Adaptec may reasonably request, upon reasonable
written notice. Adaptec will pay the cost of audits unless (i) the number of
actual copies of the Player sold by Liquid Audio subject to a royalty under
Section 2.2 exceeds the number of units of Player reported shipped during the
audit period by five percent (5%), or (ii) the number of copies of Subset made
exceeds by more than five percent (5%) the number of copies of Player containing
Subset that were shipped; in which event Liquid Audio will reimburse Adaptec for
the cost of such audits in addition to all other amounts to which Adaptec may be
legally entitled as a result of such under reported copies. Audits will not
unreasonably interfere with Liquid Audio's business activities.
3.2 Taxes. Each party shall be responsible for the payment of all
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export, excise, sales, use, property and other taxes based upon the transactions
under this Agreement or the fees paid hereunder, other than taxes imposed upon
or measured by net income.
4. PROPRIETARY OWNERSHIP RIGHTS
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4.1 Adaptec Ownership. Adaptec will retain all ownership, right,
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title and interest in and to all current and hereafter existing versions of and
modifications to CD Software, including all copies made hereunder and the
trademarks.
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4.2 Liquid Audio Ownership. Liquid Audio will retain all ownership,
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right, title and interest in and to all current and hereafter existing versions
of and modifications to Player, including all copies made hereunder.
5. WARRANTY
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5.1 Warranty Exclusion. NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND
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WITH REGARD TO THE SOFTWARE. EACH PARTY EXPRESSLY DISCLAIMS ANY OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING IN LAW,
CUSTOM, CONDUCT OR OTHERWISE.
5.2 Support. Adaptec shall be responsible for all technical support
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for products sold by Adaptec. Liquid Audio shall be responsible for all
technical support for products sold by Liquid Audio. Adaptec will provide to
Liquid Audio such support as is necessary to integrate Player into CD Software.
6. LIMITATION OF LIABILITY
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6.1 Limitation. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS
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OF PROFITS, LOSS OF USE, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES ARISING
UNDER THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ANY DAMAGES ATTRIBUTABLE TO
ADAPTEC EXCEED THE AMOUNT OF PAYMENTS MADE TO ADAPTEC UNDER THIS AGREEMENT.
6.2 Force Majeure. Except for payment of monies due under this
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Agreement, nonperformance of either party will be excused to the extent that
performance is rendered impossible by fire, earthquake, flood, governmental acts
or orders or restrictions, failure of suppliers, or any other reason where
failure to perform is beyond the control and not caused by the negligence of the
nonperforming party.
7. PROPRIETARY RIGHTS INDEMNIFICATION
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7.1 Adaptec Indemnity. Adaptec agrees to defend, or at Adaptec's
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option settle, at Adaptec's own expense and under Adaptec's sole control, any
claim, suit or proceeding brought against Liquid Audio on the issue of
infringement of any United States patent, copyright or trade secret by the
Subset, subject to the limitations herein. Adaptec will be relieved of the
foregoing obligations unless Liquid Audio (i) notifies Adaptec promptly in
writing of such claim, suit or proceeding, and (ii) gives Adaptec information
and assistance to any such claim, suit or proceeding. If the Subset, or any
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part thereof, is finally adjudicatively determined to be, or in Adaptec's sole
opinion may become, the subject of any claim, suit or proceeding for
infringement of any United States patent, copyright or trade secret or if the
distribution or use of the Subset, or any part thereof, is enjoined, then
Adaptec will, at Adaptec's option and expense, and as Liquid Audio's sole
remedy: (i) procedure for Liquid Audio and its customers the right to distribute
or use the Subset under such proprietary rights; or (ii) replace the Subset with
other suitable software; or (iii) suitably modify the Subset; or (iv) if the use
of the Subset is prevented by injunction, remove the Subset, and refund the fees
paid therefor by Liquid Audio. Adaptec will not be liable for any costs or
expense incurred without Adaptec's prior written authorization.
7.2 Liquid Audio Indemnity. Liquid Audio agrees to defend, or at
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Liquid Audio's option settle, at Liquid Audio's own expense and under Liquid
Audio's sole control, any claim, suit or proceeding brought against Adaptec on
the issue of infringement of any United States patent, copyright or trade secret
by Player, subject to the limitations herein. Liquid Audio will be relieved of
the foregoing obligations unless Adaptec (i) notifies Liquid Audio promptly in
writing of such claim, suit or proceeding, and (ii) gives Liquid Audio
information and assistance to any such claim, suit or proceeding. If Player, or
any part thereof, is finally adjudicatively determined to be, or in Liquid
Audio's sole opinion may become, the subject of any claim, suit or proceeding
for infringement of any United States patent, copyright or trade secret or if
the distribution or use of Player, or any part thereof, is enjoined, then Liquid
Audio will, at Liquid Audio's option and expense, and as Adaptec's sole remedy:
(i) procure for Adaptec and its customers the right to distribute or use the
Software under such proprietary rights; or (ii) replace Player with other
suitable software; or (iii) suitably modify Player; or (iv) if the use of Player
is prevented by injunction, remove Player, and refund the fees paid therefor by
Adaptec. Liquid Audio will not be liable for any costs or expense incurred
without Liquid Audio's prior written authorization.
7.3 Exclusive Remedy. THE-FOREGOING PROVISIONS OF THIS SECTION 7
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STATE THE ENTIRE LIABILITY AND OBLIGATION OF EACH PARTY AND THE EXCLUSIVE REMEDY
OF EACH PARTY WITH RESPECT TO ANY ALLEGED INTELLECTUAL PROPERTY RIGHTS
INFRINGEMENT BY PLAYER OR CD SOFTWARE.
8. CONFIDENTIALITY. All disclosures of Confidential Information by and
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between the parties shall be governed by that certain Master Mutual
Nondisclosure Agreement signed by the parties on February 9, 1998, a copy of
which is attached hereto as Exhibit C.
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9. TERM: TERMINATION
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9.1 Term. This Agreement will commence on the Effective Date and
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continue for eighteen (18) months after such date, unless earlier terminated
under this
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Section 9. The term of this Agreement may be extended for additional terms upon
written agreement of both parties.
9.2 Termination for Cause. If either party defaults in the
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performance of any material provision of this Agreement, then the non-defaulting
party may give written notice to the defaulting party that if the default is not
cured within thirty (30) days, then the Agreement will automatically terminate
at the end of such period. Any breach of the provisions in Sections 1, 4, or 8
shall be considered breaches which cannot be cured and may be the basis for the
immediate termination of this Agreement.
9.3 Bankruptcy. If Liquid Audio files a petition in bankruptcy or is
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adjudicated a bankrupt, or if a petition in bankruptcy is filed against Liquid
Audio and such petition is not discharged within sixty (60) days of such filing,
or if Liquid Audio becomes insolvent, or makes an assignment for the benefit of
creditors or an arrangement pursuant to any bankruptcy law, or if Liquid Audio
discontinues its business or if a receiver is appointed for it or its business,
this Agreement will automatically terminate without any notice whatsoever being
necessary.
9.4 Acquisition. This Agreement will automatically terminate upon
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notice in the event either party merges with another or is acquired, such that
the resulting entity is not directly controlled by the original party.
9.5 Survival. The obligations under Sections 4, 5, 6, 7, and 8, and
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the relevant portions of Sections 9 and 10, will survive any termination of this
Agreement. Unless this Agreement is terminated for cause in Section 9.2, the
obligations under Section 2 will survive termination of this Agreement.
9.6 Termination Effect. Within thirty (30) days after the termination
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of this Agreement, each party will return to the other party any item embodying
any Confidential Information of the other party which may be entrusted to or
created by such party, and the master copy of Player or CD Software
(collectively, "Software") as was delivered to the other party. Unless this
Agreement was terminated for cause under Section 9.2, each party may dispose of
any Software in its inventory on the effective date of termination within a
period of ninety (90) days after such date. In the event either party owns
copies of the Software for its internal use, all such copies will be returned to
the other party upon termination of this Agreement. Termination of this
Agreement for any reason will not affect the rights of any end user to use the
Software under any license granted in accordance with this Agreement.
9.7 Additional Remedies. Except as expressly limited by this
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Agreement, termination of this Agreement will be without prejudice to any other
remedy which may be available to a party due to default of this Agreement.
Violation of obligations under this Agreement may cause irreparable harm and
damage which may not be recovered at law, and remedies for breach of this
Agreement may be awarded in equity through injunctive relief.
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9.8 Right to Renew. At the end of the term of this agreement, unless
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terminated for convenience or cause, Adaptec shall have the right to renew with
the following terms.
(i) Adaptec shall pay Liquid Audio [*] as an advance against
royalties, in three payments of [*] each, the first payment due upon execution
of the amendment to this Agreement renewing the license, subsequent payments in
six month intervals thereafter.
(ii) The per-unit royalty amount paid by Adaptec to Liquid Audio
shall be calculated by dividing the royalty payable under this Agreement, which
is [*] by the number of units sold by Adaptec during the term of this Agreement.
(iii) Royalty accounting shall be per standard procedures.
(iv) The limitation on the version number of CD Software, as
specified in Section 1.1.4 herein may be modified.
10. MISCELLANEOUS
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10.1 Relationship. The relationship between the parties will be that
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of independent contractors. Nothing contained herein will be construed to imply
a joint venture, principal or agent relationship, or other joint relationship,
and neither party will have the rights, power or authority to create any
obligation, express or implied, on behalf of the other.
10.2 Governing Law. This Agreement will be governed in all respects
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by the substantive laws of the State of California, United States of America,
exclusive of its conflicts of laws rules, as applied to agreements entered into
in California between California residents.
10.3 Jurisdiction; Venue. The parties expressly stipulate that all
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litigation under this Agreement will be brought in the state courts of the
County of Santa Clara, California, or in the U.S. District Court of the Northern
District of California.
10.4 Attorneys' Fees. In the event of any litigation by the parties
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under this Agreement, the prevailing party will be entitled to costs and
reasonable attorneys' fees.
10.5 Assignment. Neither party will assign or otherwise transfer any
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of its rights, obligations or licenses hereunder without the prior written
consent of the other party, which shall not be unreasonably withheld. Subject to
the foregoing, the provisions
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* Certain information in this Exhibit has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect
to the omitted portions.
7
of this Agreement will apply to and bind the successors and permitted assigns of
the parties.
10.6 Waiver. Failure by any party to enforce any of its rights under
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this Agreement will not be deemed a waiver of any right which that party has
under this Agreement.
10.7 Notices. All notices, requests, consents and other
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communications hereunder will be in writing and delivered personally, by mail or
by facsimile (with facsimiles to be promptly confirmed in writing) or overnight
courier. All such written communications delivered by mail will be mailed,
postage prepaid, either by certified or registered, first-class mail or
overnight courier to the parties at their respective addresses as set forth on
the facing page of this Agreement, subject to the right of either party to
change its address by delivering written notice to the other. Such notices will
be deemed to be effective upon two (2) days following the date of mailing or
upon receipt if by facsimile or personal delivery.
10.8 Severability. Should any provisions of this Agreement contravene
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any law or valid regulation of any government having jurisdiction over the
parties, then such provision will be automatically terminated and performance
thereof by the parties waived, and all other provisions of this Agreement will
continue in full force and effect.
10.9 Export Compliance. Neither party will export, directly or
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indirectly, any Software to any country for which United States' laws or
regulations require an export license or other governmental approval, without
first obtaining such license or approval. Each party hereby agrees to indemnify
and hold the other party harmless from and against any losses, damages,
penalties or causes of action resulting from a violation of this Section.
10.10 Government Restricted Rights. The Software is subject to
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restricted rights as follows. If the Software is acquired under the terms of a
GSA contract: use, reproduction or disclosure is subject to the restrictions set
forth in the applicable ADP Schedule contract. If the Software is acquired under
the terms of a DoD or civilian agency contract, use, duplication or disclosure
by the Government is subject to the restrictions of this Agreement in accordance
with 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors
and 49 C.F.R. 227.7202-1 of the DoD FAR Supplement and its successors.
10.11 Entire Agreement; Amendment. This Agreement (including the
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facing page and all Exhibits) reflects the entire agreement of the parties
regarding the subject matter hereof, and supersedes all prior and
contemporaneous agreements between the parties regarding such subject matter,
whether written or oral. This Agreement may not be amended, altered or changed
except by a writing signed by both parties. This Agreement is executed in the
English language.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives on the date(s) shown below.
ADAPTEC, INC. LIQUID AUDIO
/s/ [SIGNATURE ILLEGIBLE]
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(Signature)
/s/ [SIGNATURE ILLEGIBLE]
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(Print Name)
/s/ [SIGNATURE ILLEGIBLE]
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(Title)
June 12, 1998
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(Date)
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EXHIBIT A
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CD SOFTWARE SUBSET
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Engine.DLL
Drivers.DLL
Easy CD Creator 4.0 API Version 1.0
Toast Lite Version 4.0 Engine
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EXHIBIT B
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PLAYER SOFTWARE
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Liquid Player API for Windows and Macintosh
LMPSETUP.EXE
LMPINSTALL.EXE
LIQUIDAUDIO.LIB
LTAENGINE.DLL
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EXHIBIT C
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MASTER MUTUAL NONDISCLOSURE AGREEMENT
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(ATTACHED)
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12
ADAPTEC
NDA#6841
----
MASTER MUTUAL NONDISCLOSURE AGREEMENT
THIS AGREEMENT is made on Feb 9th 1998 between Adaptec, Inc. ("Adaptec"),
and LIQUID AUDIO ("Company"). This Agreement will apply to all divisions or
locations of Adaptec and Company, unless specified to the contrary in writing by
either party.
1. Purpose. The parties wish to explore potential business opportunities,
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under which each may disclose Confidential Information to the other. The
receiving party agrees not to use the Confidential Information of the other for
any purpose other than that set forth in writing. The parties further agree not
to copy, alter, modify, disassemble, reverse engineer or decompile any of the
Confidential Information unless permitted in writing by the disclosing party.
Nothing herein shall be deemed to restrict the disclosing party's use of its own
Confidential Information.
2. Definition. "Confidential Information" means any information, data or
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know-how of either party considered confidential or proprietary by the
disclosing party, disclosed, in writing, orally, or by access to the disclosing
party's premises, which is designated in writing as confidential, or if given
orally, is confirmed promptly in writing as confidential. Confidential
Information includes, without limitation, information identified on a
Confidential Information Transmittal Record (a "CITR") signed by the parties.
Confidential Information does not include that which (i) is in the receiving
party's possession at the time of disclosure, (ii) is or becomes part of the
public knowledge or literature, not as a result of any action or inaction of the
receiving party, (iii) is approved for release by written authorization of the
disclosing party, or (iv) is independently developed by the receiving party
without access to the Confidential Information.
3. Non-Disclosure. Each party will only disclose Confidential Information
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to those employees who have a need to know such Confidential Information and who
are bound to retain the confidentiality under provisions similar to this
Agreement. Neither party will disclose Confidential Information to any third
parties. Each party will maintain the Confidential Information with at least the
same degree of care it uses to protect its own proprietary information, but no
less than reasonable care under the circumstances. Any copies of the
Confidential Information authorized to be made in writing will be identified as
belonging to the disclosing party and prominently marked "Confidential". In the
event the receiving party is required to disclose Confidential Information
pursuant to a judicial or governmental order, such party will promptly notify
the disclosing party to allow intervention in response to such order. Each party
will advise the other party in writing of any misappropriation or misuse of the
Confidential Information of which the notifying party becomes aware.
4. No License, No Warranty. No license is granted to either party under
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any patents, copyrights, mask work rights, trademarks or other proprietary
rights of the other. All information provided hereunder is "AS IS" and without
warranty. Title and right to possess Confidential Information will remain in the
disclosing party.
5. Injunctive Relief. If the receiving party fails to comply with any of
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its obligations under this Agreement, the disclosing party will suffer
immediate, irreparable harm due to the unique nature of the Confidential
Information. Monetary damages will be inadequate to compensate the disclosing
party for any such breach, and the disclosing party may enforce this Agreement
by seeking injunctive or other equitable remedies in addition to any available
legal remedies.
6. Term. This Agreement will become effective as of the date written above
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and will continue for a period of five (5) years unless earlier terminated.
Either party may terminate this Agreement at any time without cause upon written
notice to the other; however, the confidentiality obligation will survive
expiration or termination of this Agreement for a period of three years from the
date of the disclosure of each particular item.
7. Attorneys' Fees; Jurisdiction. In the event of a litigation between the
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parties, the prevailing party will be entitled to reasonable attorneys' fees and
all costs incurred in enforcing this Agreement. The parties agree that this
Agreement and the transactions hereunder will be governed by California law,
excluding its conflict of laws rules. The parties stipulate that litigation
under this Agreement will be brought in the state courts of Santa Xxxxx County,
California or, for matters involving federal jurisdiction, in the United States
District Court for the Northern District of California.
8. General. This Agreement, and any CITRs executed from time to time
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hereunder, sets forth the entire understanding and agreement of the parties with
respect to the subject matter hereof and supersedes all other oral or written
representations and understandings. The failure to enforce any right not be
deemed a waiver of such or any other right, including the right to end a
subsequent breach of the same obligation. This Agreement may be amended
modified only by a writing signed by the parties. This Agreement will not
construed as a teaming agreement, joint venture or other business relationship
This Agreement will be binding upon the successors and assigns of both parties.
The undersigned represent and warrant that they have the authorization to
enter into this Agreement on behalf of the person, entity or corporation
above their name.
ADAPTEC, INC.
By: /s/ XXXXX XXXXX
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(Signature)
Print Name: XXXXX XXXXX
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Title: Acting General Manager
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000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
LIQUID AUDIO
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COMPANY
By: /s/ XXXXXX XXXXX
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(Signature)
Print Name: XXXXXX XXXXX
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Title: VP, Business Development
Address: 000 Xxxxxxx Xxxxxx
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Xxxxxxx Xxxx, XX 00000
ADAPTEC LEGAL COPY