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EXHIBIT NO. 10(a)
SPARC TECHNOLOGY LICENSE AGREEMENT
(MICROPROCESSOR PLATFORM DESIGN LICENSE)
THIS SPARC TECHNOLOGY LICENSE AGREEMENT (the "Agreement") is made effective this
12th day of May, 1994 (the "Effective Date") by and between Sun Microsystems
Computer Corporation, a California corporation with principal offices located at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ acting by and through is
SPARC Technology Business division ("Sun"), and Pinnacle Data Systems, a Ohio
corporation with principal offices located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ("Licensee").
Whereas Sun possesses certain Sun Technology relating to the design,
development and manufacture of the Sun Board; and
Whereas Licensee desires to develop, manufacture and sell Licensee
Products based upon and using Sun Technology; and
Whereas Sun desires to grant limited license rights to Licensee for
such purposes, all on the terms and subject to the conditions set forth in this
Agreement.
Now, Therefore, in consideration of the mutual covenants and conditions
set forth below, the parties hereto agree as follows:
1. DEFINITIONS
1.1 "Affiliate" shall mean an entity which controls, is controlled by,
or is under common control with a party hereto.
1.2 "Intellectual Property Rights" shall mean all (i) patents, patent
applications and patent rights throughout the world; (ii) rights associated with
works of authorship throughout the world including copyrights, copyright
applications, copyright registrations, mask work rights, mask work applications
and mask work registrations; (iii) rights relating to the protection of trade
secrets and confidential information throughout the world; (iv) any rights
analogous to those set forth herein and any other proprietary rights relating to
intangible property; and (v) divisions, continuations, renewals, reissues and
extensions of the foregoing (as applicable) now existing or hereafter filed,
issued or acquired.
1.3 "Licensee Materials" shall have the meaning set forth in Section
3.2 below.
1.4 "Licensee Product" shall mean products developed by or for Licensee
which incorporate the Sun Technology.
1.5 "Licensee Facility" shall mean Licensee's facility identified in
EXHIBIT D.
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1.6 "Product Documentation" shall mean that documentation identified in
EXHIBIT B, which documentation constitutes a subset of the Sun Technology and
which Licensee desires to distribute with Licensee Products.
1.7 "Product Software" shall mean that computer software identified in
Exhibit B in binary form only, which computer software constitutes a subset of
the Sun Technology and which Licensee desires to distribute with Licensee
Products.
1.8 "Confidential Information" shall mean that technical or business
information which a party discloses to the other pursuant to this Agreement
which is designated as such in this Agreement or otherwise designated as
"confidential" or "proprietary" (or with words of similar meaning) in writing by
the disclosing party, or if disclosed orally, designated as "confidential" or
"proprietary" (or with words of similar meaning) at the time of disclosure. Each
party agrees that the terms and conditions of this Agreement shall be considered
Confidential Information.
1.9 "SPARC" shall mean the reduced instruction set and scalable
processor architecture developed by Sun, the features and attributes of which
are set forth in the SPARC Architecture Manual, Version 8 (and/or successor
versions) as promulgated by SPARC International, Inc.
1.10 "Sun Board" shall mean the printed circuit motherboard
incorporated in the Sun computer system identified in EXHIBIT A.
1.11 "Sun Technology" shall mean the technology, information materials
and deliverables identified in EXHIBIT C. "Sun Technology" specifically excludes
any and all commercial CAD software or libraries.
OWNERSHIP OF SUN TECHNOLOGY
2.1 SUN TECHNOLOGY. Licensee acknowledges and agrees that, as between
the parties, Sun is and shall remain the sole and exclusive owner of all right,
title and interest in and to the Sun Technology and all associated Intellectual
Property Rights and that Licensee acquires no rights therein other than the
limited rights specifically granted in this Agreement.
2.2 NO LIMITATION. Nothing contained in this Agreement shall be
construed to limit or restrict, in any way or manner, any right of Sun to
encumber, transfer, license, access, reference, use or practice the Sun
Technology in any way for any purpose or use (subject only to the rights
specifically granted Licensee hereunder), including without limitation the use,
licensing and/or registration of the Sun Technology anywhere in the world for
any purpose or use in connection with the development, manufacture,
distribution, marketing, promotion and sale of any products including products
competitive with the Licensee Products.
3. GRANT OF LICENSES.
3.1 SUN TECHNOLOGY. Sun hereby grants to Licensee, for the term of this
Agreement, a nonexclusive, nontransferable and worldwide (unless otherwise
indicated) license under Sun's Intellectual Property Rights in the Sun
Technology, to (i) use and practice the Sun Technology to design and develop
Licensee Products only at the Licensee Facility, (ii) copy and incorporate Sun
Technology (excluding computer software and firmware) into Licensee Products,
(iii) manufacture, have manufactured, market and sell Licensee Products designed
with and/or incorporating (as herein permitted) Sun Technology, and (iv) use the
Sun Technology to maintain and support Licensee Products.
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3.2 DISTRIBUTION RIGHTS - LICENSEE PRODUCT DOCUMENTATION. Sun hereby
grants to Licensee for the term of this Agreement, a nonexclusive,
nontransferable and worldwide license under Sun's Intellectual Property Right In
the Sun Technology, to (i) modify and incorporate the Product Documentation into
materials that Licensee will distribute with the Licensee Products ("Licensee
Materials"); and (ii) copy and distribute the Licensee Materials with Licensee
Products only in a manner consistent with Licensee's obligations to protect
Sun's Intellectual Property Rights hereunder including, without limitation,
distribution of Licensee Materials only pursuant to nondisclosure agreements
between Licensee and its customers consistent with Licensee's obligations under
Section 8. Sun shall have the right to review and approve (such approval not to
be unreasonably withheld) any and all and any nondisclosure agreements to be
used in connection therewith. Licensee shall promptly notify Sun upon creation
of Licensee Materials and, in any event, prior to distribution of any Licensee
Materials. Under no circumstance will Licensee Materials contain any reference
to Sun, including but not limited to any company names, product names, marks,
logos, designs, trade dress and other designations or brands used by Sun, except
as provided in Section 5.3.
3.3 SUBLICENSE RIGHTS - PRODUCT SOFTWARE. Sun hereby rants to Licensee
for the term of this Agreement, a nonexclusive, nontransferable and worldwide
license (unless specifically limited) under Sun's Intellectual Property Rights
in the Sun Technology, to (i) use the Product Software at the Licensee Facility
and (ii) copy, sublicense and distribute Product Software only as incorporated
in Licensee Products and in a manner consistent with Licensee's obligations to
protect Sun's Intellectual Property Rights hereunder including, without
limitation, sublicensing only pursuant to software license agreements which are
consistent with this Agreement. Sun shall have the right to review and approve
any such license agreements which Licensee intends to use in connection with the
distribution of the Licensee Product Software (such approval not to be
unreasonably withheld). Licensee shall promptly notify Sun upon creation of any
such agreement and, in any event, prior to distribution of the Product Software.
Licensee shall maintain complete and accurate records designating the name and
address of each sublicensee and shall provide such records to Sun at Sun's
request.
3.4 LIMITATIONS ON LICENSE GRANTS/NO OTHER LICENSES.
3.4.1 The licenses granted in Sections 3.1, 3.2 and 3.3 above are
granted on the terms and subject to the conditions of this Agreement including,
without limitation, Sections 5 and 6 below. No other license rights with respect
to the Sun Technology or associated Intellectual Property Rights are granted by
Sun for any purposes other than as expressly set forth in Sections 3.1, 3.2 and
3.3. Should Licensee, for any reason market and/or sell the Sun Technology or
any portion thereof separate and apart from the Licensee Products, the licensed
rights granted herein to Licensee shall not apply with respect to such
activities and, unless Licensee is authorized under other agreements with Sun
to, engage in such activities, shall constitute a material breach of this
Agreement entitling Sun to terminate this Agreement in accordance with Section 7
below.
3.4.2 Licensee shall not make or distribute any copies of the Sun
Technology, in whole or in part, without the prior written authorization of Sun,
provided however, that Licensee may make and maintain one (1) backup or archival
copy of the computer software components of the Sun Technology during the term
of this Agreement.
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3.4.3 Licensee shall treat the Sun Technology as Confidential
Information in accordance with the provisions of Section 8 including, without
limitation, Section 8.3.
4. DELIVERY OF TECHNOLOGY
4.1 SUN TECHNOLOGY. Sun shall use reasonable efforts to deliver to
Licensee one (1) copy of each item of Sun Technology set forth in Exhibit C
according to the target dates set forth therein. Licensee acknowledges that the
Sun Technology may be in various stages of completion for delivery and that the
target dates set forth in Exhibit C, while good faith estimates, are not
binding. In the event that Sun is unable to deliver any item by its target date,
Sun shall deliver such item to Licensee as soon as reasonably possible upon
completion.
4.2 RISK OF LOSS. Sun shall deliver the Sun Technology to a common
carrier Ex Works, Sun's facilities.
5. LIMITATIONS AND OBLIGATIONS
5.1 USE OF SUN TECHNOLOGY. Licensee must use and copy the Sun
Technology and manufacture, market, and sell Licensee Products only in a manner
consistent with the terms, conditions and restrictions of this Agreement, and
only in a manner reasonably designed not to jeopardize or prejudice Sun's rights
therein and thereto and, in all respects and at all times, consistent with
reasonably diligent mask work right, copyright, patent and trade secret
practices.
5.2 PROPRIETARY NOTICES. To the extent that Licensee incorporates or
copies any or all of the Sun Technology provided to Licensee by Sun hereunder,
as and if allowed hereunder, Licensee shall reproduce and apply any proprietary
rights notices placed by Sun thereon. In addition, Licensee shall comply with
all reasonable requests by Sun to include Sun's copyright and/or other
proprietary rights notices on any part of the Sun Technology, Licensee Product,
Licensee Materials, Product Software or related materials.
5.3 TRADEMARK. No license, right, title, or interest in any Sun
trademark, trade name, trade dress, design patent or service ▇▇▇▇ is granted
hereunder. Licensee acknowledges that "SPARC" and the SCD Compliant Logo are
registered trademarks of SPARC International, Inc. and that no rights to use the
▇▇▇▇ "SPARC" or any ▇▇▇▇ containing the word "SPARC" or the SCD Compliant Logo
are granted or implied in any way in this Agreement. Licensee further
acknowledges that if Licensee wishes to use any "SPARC"-based trademark or the
SCD Compliant Logo on or in connection with Licensee Products, Licensee must
independently obtain a license from SPARC International, Inc. for use of such
▇▇▇▇.
Licensee may use only the following, in its entirety, in connection
with the marketing of Licensee Products (where "X" is the name of the Licensee
Product): "X is derived from designs licensed from Sun Microsystems Computer
Corporation." Sun has the right to accurately refer to Licensee Products in
marketing materials, advertisements, and product documentation by reference to
the related trademarks.
5.4 NOTICE OF INFRINGEMENT. Licensee must notify Sun promptly upon
discovery of any potential or actual infringement by a third party of the Sun
Technology or associated Intellectual Property Rights and provide Sun with
available evidence of such infringement. Sun has the sole
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right to bring, any action involving the infringement of the Sun Technology and
to keep and retain for itself any compensation in connection therewith. In the
even that Sun chooses not to bring any such action, or fails to notify Licensee
of its intent to bring any such actin within sixty (60) days after notice
thereof by Licensee, and Licensee notifies Sun of its desire to do so, Sun may,
but is not obligated to, give Licensee written permission to undertake any such
actions. In the event Sun grants such permission, Sun and Licensee will agree on
the portion of monetary compensation awarded that Licensee will be entitled to
retain for itself and Sun will reasonably cooperate with Licensee, at Licensee's
sole cost and expense, with respect to such actions.
5.5 USE OF THIRD PARTIES. Licensee may retain third parties to furnish
services to it in connection with its use of Sun Technology and manufacture of
Licensee Products (insofar as Sun Technology is implicated) only if reasonably
required in connection with such activities; provided however that all such
third parties who perform work shall execute appropriate documents undertaking
sufficient obligations of confidentiality respecting the Sun Technology. Sun
may, upon its request, review any such documents and agreements proposed for use
by Licensee prior to any such use.
5.6 MANUFACTURING LIMITATIONS. If Licensee utilizes an Affiliate or
third party manufacturing facilities for Licensee Products or components
thereof, Licensee may grant a sublicense to such party on terms and conditions
consistent with Licensee's obligation hereunder to use only that Sun Technology
as is necessary to enable such manufacturing facility to manufacture the
Licensee Products; provided however, that such Affiliate or third party facility
agrees to return such materials to Licensee upon termination of this Agreement
or termination of production of Licensee Products.
6. FEES
6.1 FEES. In consideration of the rights granted Licensee in this
Agreement, Licensee shall pay to Sun the fee set forth in EXHIBIT D.
6.2 UPGRADES/TAXES. The fees set forth in EXHIBIT D are for current
versions of the Sun Technology and do not include any upgrades, enhancements,
modifications or improvements. Fees, as specified, are exclusive of all taxes,
levies or duties, and Licensee shall be responsible for payment of the same. All
payments required by this Agreement shall be made in United States dollars.
7. TERM AND TERMINATION
7.1 TERM. This Agreement shall commence as of the Effective Date and
expire seven (7) years thereafter; provided, that this Agreement will
automatically renew for successive one (1) year periods unless either party
notifies the other of its desire that this Agreement expire whereupon this
Agreement will so expire thirty (30) days following such notification. Upon
expiration of this Agreement, Licensee will immediately discontinue use of the
Sun Technology and will promptly return all copies of the Sun Technology in
Licensee's possession or control to Sun. In addition, Licensee must permanently
destroy or disable all electronically reproducible copies of the Sun Technology
and all other electronic documents containing all or any portion of the Sun
Technology.
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7.2 TERMINATION. This Agreement may be terminated as follows:
7.2.1 If either party fails to comply with any of the material
terms and conditions of this Agreement, the other party may
terminate this Agreement upon sixty (60) days' notice to the
defaulting party specifying the breach, unless within the
period of notice, all breaches specified therein shall have
been remedied.
7.2.2 Immediately, at Sun's option, if Licensee violates the
provisions of Sections 3.4 or 8, or 9.3.
7.3 EFFECT OF TERMINATION - SUN'S BREACH. The grant of right and
licenses from Sun to Licensee to the Sun Technology made in this Agreement will
survive the termination of this Agreement as a result of a breach by Sun as, and
only to the extent, necessary for Licensee to continue manufacture and support
of the Licensee Products as then constituted for the term of this Agreement.
Such continuing rights shall be subject to Licensee's continued compliance with
the terms of this Agreement including, without limitation, Sections 6 and 8 and
termination at any time in accordance with Section 7.2.
7.4 EFFECT OF TERMINATION - LICENSEE'S BRANCH. In the event of
termination of this Agreement due to a breach by Licensee, the rights and
licenses herein granted shall immediately terminate and Licensee shall have no
further right to use the Sun Technology or to manufacture, market or sell
Licensee Products. Within thirty (30) days after termination Licensee must
return all copies of the Sun Technology in Licensee's possession. In addition,
Licensee must permanently destroy or disable all electronically reproducible
copies of the Sun Technology and all other electronic documents containing all
or any portion of the Sun Technology. Notwithstanding the foregoing, Licensee
must immediately return to Sun or destroy all copies of the Sun Technology if
termination is the result of Licensee materially breaching or, Section 5.5 (Use
of Third Parties), Section 8 (Confidential Information) or, if Licensee
otherwise takes any action which materially jeopardizes Sun's proprietary rights
in and to the Sun Technology. Promptly after destruction of all hard-copy and
electronically reproducible copies of the Sun Technology, a duly authorized
officer of Licensee shall certify to Sun that Licensee has destroyed and/or
returned all copies of the Sun Technology.
7.5 AVAILABLE RELIEF. Nothing herein is to be construed as limiting
either party from seeking injunctive or other equitable relief at any time.
Licensee acknowledges and agrees that (i) the restrictions on its use and
disclosure of Sun's proprietary information and the restrictions and limitations
exacted in exchange for the license rights granted to Licensee herein are
reasonable and necessary to protect legitimate interests, (ii) in the event of a
violation by Licensee of any of the provisions of Sections 3, 5 or 8, remedies
at law will be inadequate and such violation will cause irreparable damages to
Sun within a short period of time, and (iii) shall be entitled to injunctive
relief against each and every violation of these Sections.
7.6 LIMITATION OF LIABILITY. Neither party shall have the right to
recover damages or indemnification of any nature, whether by way of lost
profits, expenditures for promotion, payment for goodwill or otherwise made in
connection with the business contemplated by this Agreement, due to the
expiration or permitted or lawful termination of this Agreement. EACH PARTY
WAIVES AND RELEASES THE OTHER FROM ANY CLAIM TO
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COMPENSATION OR INDEMNITY FOR TERMINATION OF THE BUSINESS RELATIONSHIP UNLESS
SUCH TERMINATION IS IN BREACH OF THIS AGREEMENT.
8. CONFIDENTIAL INFORMATION
8.1 OBLIGATION. Except as provided in this Agreement, neither party may
use, make, have made, distribute or disclose any copies of the Confidential
Information it receives from the disclosing party pursuant to this Agreement, in
whole or in part, without the prior written authorization of disclosing party.
Each party must hold in confidence any Confidential Information received from
the other pursuant to this Agreement and protect the confidentiality thereof
with the same degree of care that it exercises with respect to its own
information of like importance, but in no event less than reasonable care, for
the term of this Agreement (but in no event less than seven (7) years from the
date of receipt of the Proprietary information).
8.2 EXCEPTIONS. Section 8.1 does not apply to any portion of the
Confidential Information which a receiving party can demonstrate:
a. is now or hereafter, through no act or failure to act on
the part of receiving party, becomes generally known in the
electronics industry;
b. is known to receiving party at the time of receiving such
Confidential Information without an obligation of
confidentiality;
c. is hereafter rightfully furnished to receiving party by a
third party without restriction on disclosure; or
d. is independently developed by receiving party without any
use of the Confidential Information.
8.3 EMPLOYEE ACCESS. Each party must restrict access to the
Confidential Information to its employees with a need for such access to perform
their employment obligations and must inform such employees of the restrictions
required to comply with this Section 8 and must obtain or have obtained their
written agreement to comply with those imitations, duties and obligations. Each
party agrees to provide notice to the other immediately after learning of or
having reason to suspect a breach of any of the restrictions of this Section 8.
9. WARRANTIES AND LIMITATION OF LIABILITY
9.1 SUN TECHNOLOGY. Licensee acknowledges that the Sun Technology may
be in the process of engineering changes and/or development, Sun Technology and
Sun Confidential Information is provided "AS IS".
9.2 DISCLAIMER. SUN DOES NOT MAKE AND HEREBY DISCLAIMS ANY EXPRESS OR
IMPLIED WARRANTIES OR CONDITIONS WITH RESPECT TO THE SUN TECHNOLOGY AND RELATED
MATERIALS INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF DESIGN,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES ARISING FROM A
COURSE OF DEALING,
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PERFORMANCE OR USAGE OF TRADE. No agent of Sun is authorized to incur warranty
obligations on behalf of Sun or modify the limitations as set forth herein.
9.3 HIGH RISK ACTIVITIES. Licensee acknowledges that the Sun Technology
is not fault-tolerant and are not designed, manufactured or intended by Sun for
use or resale in on-line control equipment in hazardous environments requiring
fail-safe performance, such as in the operation of nuclear facilities, aircraft
navigation or communication systems, air traffic control, direct life support
machines, or weapons systems, in which the failure of products could lead
directly to death, personal injury, or severe physical or environmental damage
("High Risk Activities"). Sun specifically disclaims any express or implied
warranty of fitness for High Risk Activities. Licensee represents and warrants
that it will not use Sun Technology and will not use, distribute or resell
Licensee Products for High Risk Activities and that it will ensure that its
customers and end-users are provided with a notice substantively similar to that
contained in this Section 9.3.
9.4 PRODUCT LIABILITY. Licensee may not, in connection with the
marketing of the Licensee Product, represent, either directly or indirectly,
that Sun has certified or approved of the form, fit, function, performance or
compatibility of the Licensee Product. Except as set forth below, Licensee
agrees to and hereby does indemnify, release, defend and hold Sun harmless from
and against all claims, damages, losses, costs and expenses, including
reasonable attorneys' fees, arising in defense of any claim of product liability
in any way relating to the Licensee Product, provided that Sun (i) gives
Licensee notice of the claim, (ii) cooperates with Licensee, at Licensee's
expense, in the defense of the claim, and (iii) gives Licensee the right to
control the defense and settlement of any the claim, except that Licensee shall
not enter into any settlement that affects Sun's rights or interest without
Sun's prior written approval. Sun has no authority to settle any claim on behalf
of Licensee.
10. INTELLECTUAL PROPERTY INFRINGEMENT DISCLAIMER
NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A WARRANTY OR
REPRESENTATION BY SUN THAT THE SUN TECHNOLOGY OR ANY LICENSEE PRODUCTS DEVELOPED
WITH OR INCORPORATING THE SUN TECHNOLOGY WILL BE FREE FROM INFRINGEMENT OF THE
INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. SUN HEREBY EXPRESSLY DISCLAIMS
AND SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY ARISING AS A RESULT OF OR IN
CONNNECTON WITH ANY CLAIM OR SUIT ALLEGING THAT THE USE OF SUN TECHNOLOGY AND/OR
USE, MANUFACTURE AND/OR SALE OF LICENSEE PRODUCTS INFRINGES THE INTELLECTUAL
PROPERTY RIGHTS OF ANY THIRD PARTY.
11. LIMITATION OF LIABILITY
Notwithstanding any other provision of this Agreement, Sun's maximum
liability for damages shall be limited to an amount equal to the total of the
payments made by Licensee to Sun hereunder for the Sun Technology. EXCEPT FOR
DAMAGES ARISING UNDER SECTION 8, 9.3 AND/OR 9.4 AND IN CONNECTION WITH ANY
INDEMNIFCATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
COSTS OF COVER, LOST REVENUES OR PROFITS OR OTHER SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES, NO MATTER WHAT THEORY OF
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LIABILITY AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR
PROBABILITY OF SUCH DAMAGES. THE FOREGOING WILL APPLY NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
The parties acknowledge that the foregoing limitation of liability
represents a reasonable and negotiated allocation of risk as between the
parties, that absent such limitation constitutes an integral part of this
Agreement, and that absent such limitation the parties would not have executed
this Agreement.
12. FORCE MAJEURE
A party is not liable for non-performance of this Agreement, if the
non-performance is caused by events or conditions beyond that party's control
and the party gives prompt notice and makes all reasonable efforts to perform.
In no event will this provision affect Licensee's obligation to make payments
under this Agreement.
13. MISCELLANEOUS
13.1 NOTICES. All notices must be in writing and delivered either in
person or by a means evidenced by a delivery receipt, to the address specified
below or as otherwise notified in writing. Such notice will be effective upon
receipt. The address of the parties may be changed by notice given in accordance
with this Section 13.1.
Notice given:
To Sun: To Licensee:
Sun Microsystems Computer Corp. Pinnacle Data Systems
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ PAL1-315 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Contracts Manager, Attn: ▇▇. ▇▇▇ ▇▇▇▇▇▇, President
SPARC Technology Sales Unit
13.2 SEVERABILITY. If any term or provision of this Agreement is found
to be invalid under any applicable statue or rule of law then, the provision
notwithstanding, this Agreement shall remain in full force and effect and such
provision shall be deleted unless such a deletion would frustrate the intent of
the parties with respect to any material aspect of the relationship established
hereby, in which case, this Agreement and the licenses and rights granted
hereunder shall terminate.
13.3 MERGER. This Agreement, together with the Exhibits hereto which
are Incorporated by reference herein, is the entire agreement between the
parties. It supersedes as of the Effective Date all prior or contemporaneous
communications, representations or agreements, whether written or oral, with
respect to the subject matter hereof.
13.4 AMENDMENT. No modification to this Agreement will be binding,
unless in writing and signed by a duly authorized representative of each party.
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13.5 GOVERNING LAW. This Agreement and the rights, obligations and
relations of the parties will be governed by California law, excluding choice of
law rules.
13.6 EXPORT CONTROL. Licensee acknowledges that the Sun Technology, and
Licensee Products may be subject to U.S. export control laws, including the U.S.
Export Administration Act and its associated regulations, and may be subject to
export or import regulations in other countries. Licensee agrees to comply
strictly with all such regulations and acknowledges that it has the
responsibility to obtain such licenses to export, re-export, or import Sun
Technology and/or Licensee Products, as may be required. Licensee must notify
and inform its employees having access to the above-mentioned information or
products of Licensee's obligation to comply with the requirements as stated in
this Section 13.6. Sun agrees to use its reasonable efforts to cooperate with
Licensee (at Licensee's sole cost and expense) to comply with U.S. export
control laws.
13.7 RELATIONSHIP. The relationship created hereby is that of licensor
and licensee, and nothing herein shall be deemed to constitute either party as
an agent, employee or franchisee of the other party. The parties hereby waive
the benefit of any state or federal statutes dealing with the establishment and
regulation of franchises.
13.8 SURVIVAL. The provisions of Sections 6, 7.3, 7.4, 7.5, 7.6, 8, 11,
13.1, 13.5, 13.8 and 13.12 shall survive the expiration or termination of this
Agreement and any license granted herein or hereunder.
13.9 SUCCESSORS. Subject to, and unless otherwise provided in this
Agreement, each and all of the covenants, terms, provisions, and agreements
contained in this Agreement shall be binding on, and inure to the benefit of,
the permitted successors, executors, heirs, representatives, administrators, and
assigns of the parties hereto; provided, however, that this Agreement and the
rights granted Licensee shall not be assignable by Licensee without the prior
written consent of Sun. Sun shall have the right to assign this Agreement to its
Affiliates without notice to Licensee.
13.10 WAIVER. Any waiver of any provision of this Agreement, or a delay
by either party in the enforcement of any right hereunder, shall neither be
construed as a continuing waiver, nor create an expectation of non-enforcement
of that or any other provision or right.
13.11 ESCALATION OF DISPUTES. Upon election of either party to
implement dispute resolution procedures in connection with any alleged material
breach of this Agreement, each party shall select a management employee having
the title of "Vice President" or higher to meet and confer with one another and
such other personnel as each may designate in an effort to resolve the
identified dispute. In the event the Vice Presidents are unable to resolve the
dispute within two (2) weeks following commencement of this dispute resolution,
either party may seek any remedy available under this Agreement, at law or in
equity.
13.12 ATTORNEYS' FEES. In the event of any legal action arising out of
or in connection with this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys' fees, costs and expenses incurred in such
action.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives.
"SUN" "LICENSEE"
SUN MICROSYSTEMS
COMPUTER CORPORATION PINNACLE DATA SYSTEMS
BY:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BY:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- -----------------------------
NAME:▇▇▇▇ ▇▇▇▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- --------------------------
(Print or Type) (Print or Type)
TITLE: President, STB TITLE:President
------------------------ --------------------------
DATE:5/16/94 DATE:5/12/94
-------------------------- ---------------------------
The Exhibits to this Agreement are:
-----------------------------------
Exhibit A - Sun Board
Exhibit B - Product Documentation and Product Software
Exhibit C - Sun Technology and Deliverables
Exhibit D - Licensee Facility, Fees and Royalties
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EXHIBIT A
SUNBOARD
The design information included in this license is that of the printed circuit
motherboard incorporated in the Sun computer system.
SPARCstation 5 (for the microSPARC II Platform Design Kit)
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EXHIBIT B
PRODUCT DOCUMENTATION AND PRODUCT SOFTWARE
BOARD DOCUMENTATION
Item Description Hardcopy Electronic
---- ----------- -------- ----------
microSPARC II Platform Provides a deliverable checklist, along X X
Design Kit User's Guide with a description of the hardware distribution
tape and installation instructions for this
microSPARC II Platform Design Kit.
microSPARC II Platform
Design Kit Technical Manual Contains the description of the microSPARC II X
Platform Design Kit CPU board architecture.
This document also provides a quick summary
of the system including and outline of main
features, system block diagram, and short
description of the major subsystems of the
design.
COMPONENT DOCUMENTATION
Item Description Hardcopy Electronic
---- ----------- -------- ----------
STP1012PGA-70 micro- Contains the architectural specification for X
SPARC-II Specification the microSPARC II Microprocessor
STP2000QFP SBus I/O Chipset Contains the hardware specification for the X
Data Manual (MACIO) Master I/O Controller ASIC called MACIO. It
provides a master DMA function for Ethernet,
SCSI and a parallel port. This controllers
for these functions are integrated on the
chip.
STP2001 QFP SBus I/O Chipset Contains the documentation for the Slave X
Data Manual (SLAVIO) I/O Controller ASIC called SLAVIO. It provides
slave I/O control for 8-bit devices such as
NVRAM, floppy disk, keyboard/mouse, serial
port and audio.
STP2024QFP Miscellaneous Audio, DMA, Power Management Logic, X
Logic Controller & miscellaneous system logic.
SOFTWARE
Item Description Hardcopy Electronic
---- ----------- -------- ----------
OpenBoot(TM) PROM Binary The system boot program which X
includes ROM Monitor & Power-on Self Test.
14
EXHIBIT C
SUN TECHNOLOGY
(microSPARC II Platform Design Kit)
BOARD DOCUMENTATION
Item Hardcopy Electronic
---- -------- ----------
microSPARC II Platform Design Kit User's Guide X X
microSPARC II Platform Design Kit Hardware Manual X
COMPONENT DOCUMENTATION
Item Hardcopy Electronic
---- -------- ----------
STP1012PGA-70 microSPARC II Specification X
STP2000QFP SBus I/O Chipset Data Manual (MACIO) X
STP2001QFP SBus I/O Chipset Data Manual (SLAVIO) X
STP2024QFP Miscellaneous Logic Controller X
BOARD DESIGN INFORMATION
Item Hardcopy Electronic
---- -------- ----------
Schematic Drawings X X
Schematic symbol library X
▇▇▇▇ of Materials X X
Netlist X X
SOFTWARE
Item Hardcopy Electronic
---- -------- ----------
SPARCstation 5 OpenBoot(TM) PROM Binary X
Target Delivery Date: Within thirty (30) days of Licensee's signature of
Agreement and Sun's receipt of full payment of the License Fees set forth in
EXHIBIT D.
15
EXHIBIT D
LICENSEE FACILITY, FEES AND ROYALTIES
License Fees: Thirty-Five Thousand Dollars ($35,000.00 U.S.) up-front license
fee due and payable upon the Effective Date.
Royalties: NONE
Address for payment of Fees and Royalties:
Sun Microsystems Computer Corporation
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Licensee Facility:
Pinnacle Data Systems
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