EXHIBIT 10.77
[MTI LOGO]
SOFTWARE LICENSE AGREEMENT ("AGREEMENT")
THIS AGREEMENT is made on the 7th day of July 2003 (the "Effective Date"),
BETWEEN (1) MTI Technology Corporation, a Delaware, USA, corporation, whose
principal place of business is situated at 14661 Franklin Avenue, Tustin,
California 92780, USA ("MTI"); and (2) Xyratex International Inc., a company
incorporated in England, whose registered office is situated at Langstone Road,
Havant, Hampshire, PO9 ISA, England ("Xyratex").
RECITALS:
(A) The parties have entered into a Memorandum of Understanding
dated 26th June 2003 relating to the provision of certain
premises, assets and software from MTI to Xyratex. This
Agreement sets out the terms and conditions under which MTI is
to license the Software (as defined hereunder) to Xyratex.
(B) MTI has agreed to supply Xyratex with the Software. The
Software enables Xyratex to test and evaluate products.
THE PARTIES AGREE:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
"DERIVATIVE WORKS" means any modification or adaption to any part of
the Software by Xyratex under the terms of this Agreement.
"INTELLECTUAL PROPERTY" means any patent, trade mark, design, design
rights, copyright, database right, topography rights, moral rights,
know how, trade secret and other confidential information, rights in
the nature of any of the these items in any country, rights in the
nature of unfair competition rights and rights to sue for passing off
or other similar intellectual or commercial right (in each case whether
or not registered or registrable) and registrations of and applications
to register any of the these items.
"LICENSE FEE" means a one time, upfront payment of US$200,000 (two
hundred thousand US dollars) (exclusive of any value added tax or other
taxes or levies).
"OBJECT CODE" means any machine executable code derived in whole or in
part from the Software.
"PERMITTED USE" means, in relation to the Software, to (i) internally
use, reproduce, load, analyze, and create Derivative Works of the
Source Code for the purpose of testing and evaluating products and
integrating the Software and any Derivative Works with Xyratex products
and (ii) to reproduce, distribute and sublicense the use of the
Software and/or any Derivative Works (with Xyratex products) to third
parties.
"SOFTWARE" means the software programs (in Source Code and Object Code
form) as listed in Schedule A.
"SOURCE CODE" means the human readable code, which documents the
Software.
2. LICENSE
2.1 Upon the Effective Date, MTI shall supply Xyratex with the Software.
From the Effective Date, MTI may invoice Xyratex for the License Fee.
Xyratex shall pay the License Fee to MTI within thirty (30) days from
the date of MTI's invoice.
2.2 The Intellectual Property, title and interest in the Software supplied
to Xyratex is, and shall remain, the property of MTI and the Xyratex is
not licensed to use the Software otherwise than expressly provided for
in this Agreement.
2.3 With effect from the Effective Date and in consideration of payment of
the License Fee by Xyratex to MTI, MTI grants to Xyratex a worldwide,
royalty-free, exclusive, perpetual license for Xyratex to use the
Software for the Permitted Use.
2.4 The Intellectual Property, title and interest in any Derivative Works
created by Xyratex (including its employees or contractors) is and
shall remain, the property of Xyratex (subject to MTI's ownership of
the underlying Software), MTI has no right or license to any Derivative
Works and Xyratex (including its employees and contractors) is not
required to disclose any Derivative Works to MTI.
2.5 Xyratex (and its employees or contractors) shall not use the Software
(or any revision of the Software that is done by Xyratex under the
terms of this Agreement) for any purpose other than the Permitted Use.
Xyratex will inform MTI in writing promptly if Xyratex becomes aware of
any unauthorized use of the Software.
3. WARRANTY AND SUPPORT
3.1 MTI makes no warranty, express or implied, and disclaims any warranties
with respect to the Software, including without limitation, any
warranty for fitness for a particular purpose, merchantability, quality
or non-infringement. MTI does not warrant that the operation of the
Software will be uninterrupted or error free.
3.2 MTI shall not be liable for fixing any errors or providing any type of
support (technical or otherwise) in the Software. Any services to be
provided by MTI to Xyratex shall be pursuant to the terms and
conditions of a separate agreement.
4. LIMITATION OF LIABILITY
4.1 MTI shall not be liable for costs of procurement of substitutes, loss
or profits, use or data, interruption of business, or for any other
special, consequential, incidental or indirect damages, however caused,
whether for breach of warranty, contract, tort, negligence, strict
liability, infringement or otherwise.
4.2 Except in the case of fraud or personal injury caused by MTI's
negligence, MTI's cumulative liability under this Agreement for all
causes of action shall be limited to and not exceed the fees paid (if
any) by Xyratex for the license of the Software hereunder, regardless
of whether MTI has been advised of the possibility of such damages or
any remedy set forth herein fails of its essential purpose or
otherwise.
4.3 This section 4 allocates the risks under this Agreement. MTI pricing
(if any) reflects this allocation of risk and the limitation of
liability specified herein.
5. CONFIDENTIALITY
5.1 MTI and Xyratex have entered into a mutual non-disclosure agreement
("NDA") with NDA number X410. dated 22nd JULY 1997 and the terms of
such NDA are hereby incorporated herein and shall govern the disclosure
of confidential information under this Agreement. These terms of this
Agreement will take precedence over any conflicting term contained in
such NDA.
6. TERM AND TERMINATION
6.1 The license granted under this Agreement shall commence on the
Effective Date and, unless sooner terminated in accordance with this
section 6, shall continue thereafter.
Software License Agreement
July 7,2003
Page 2 of 5 MTI & Xyratex
6.2 MTI may terminate this Agreement immediately: (a) if Xyratex breaches
any confidentiality provisions contained herein or in the NDA referred
to in section 5.1 above; (b) if, at any time during the continuance of
this Agreement, Xyratex opposes or assists any third party to oppose
the validity or MTI's ownership of Intellectual Property in the
Software. Either party may terminate this Agreement immediately: (c)
upon the other party's insolvency, bankruptcy, reorganization (except
for the purposes of a bona fide scheme for amalgamation or
reconstruction), or assignment for the benefit of creditors; or (d) in
the event of any other material breach by the other party of any
provision of this Agreement where the defaulting party fails to correct
such breach within thirty (30) days of written notice thereof.
6.3 If this Agreement terminates: (a) Xyratex will immediately deliver to
MTI all fees due and owing (if any) as of the date of termination; (b)
the license granted in section 2 will immediately terminate; (c)
Xyratex will, at MTI's option, either return to MTI the Software, all
related documentation and any other confidential information of MTI's,
and all copies thereof existing at the date of such termination, or
destroy them and certify in writing to MTI that they have been
destroyed; (d) notwithstanding the foregoing, Xyratex's right to right
to sell, maintain or support products into which the Software or any
Derivative Work has been incorporated before the date of termination
shall not be affected, except to the extent that such sale, maintenance
or support constitutes a breach of this Agreement; and (e) any already
existing rights or liabilities of either party will not be affected.
7. GENERAL
7.1 Subject to clause 7.2, the parties shall not assign any portion of its
rights or liabilities under this Agreement without the written consent
of the other (such consent not to be unreasonably withheld or delayed).
7.2 Each party shall be entitled to assign its respective rights and
obligations under this Agreement to an affiliate or to such third party
as may purchase all or a substantial part of its assets (or the
relevant business division thereof) upon providing the other with prior
written notice of such assignment.
7.3 This Agreement shall be governed by and construed in accordance with
the laws of the State of California, USA, and the parties submit to the
non-exclusive jurisdiction of the Courts of California, USA.
7.4 All notices to be given under this Agreement must be in writing and
sent to the address of the party as set forth above, Attention: Legal
Department, or any other address which the recipient may tell the other
in writing. Any notice may be delivered by hand personally or sent by
registered mail or by facsimile and will be treated as served: if by
hand, when delivered; if by registered mail, 72 hours after posting;
and if by facsimile, when dispatched, provided the sender's fax machine
produces automatic confirmation of error free transmission to the
recipient's fax number.
7.5 A failure by either party hereto to exercise or enforce any rights
conferred upon it by this Agreement shall not be deemed to be a waiver
of any such rights or operate so as to bar the exercise or enforcement
thereof at any subsequent time or times.
7.6 If any term of this Agreement is determined to be invalid or
unenforceable for any reason, it shall be adjusted rather than voided,
if possible, to achieve the intent of the parties to the extent
possible. In any event, all other terms shall be deemed valid and
enforceable to the maximum extent possible.
7.7 Neither party shall be liable for any loss, damage, or penalty arising
from delay due to causes beyond its reasonable control.
7.8 Both parties acknowledge that they have read, understood and agree to
be bound by this Agreement, and that this Agreement is the complete and
exclusive statement of the agreement between the parties regarding the
subject matter hereof, which supersedes all proposals, oral or written,
all other communications between the parties relating to such subject
matter save for fraudulent misrepresentations.
7.9 This Agreement may be modified only by a written instrument duly
executed by an authorized representative of MTI and Xyratex.
Software License Agreement
July 7,2003
Page 3 of 5 MTI & Xyratex
7.10 This Agreement is not intended to be for the benefit of, and shall not
be enforceable by, any person who is not a party to it, under the
Contracts (Rights of Third Parties) Act 1999 or otherwise and neither
party can declare itself a trustee of the rights under it for the
benefit of any third party.
IN WITNESS the parties have signed this Agreement on the date referred to above.
SIGNED by MARK FRANZEN ) /s/ Mark Franzen
CHIEF FINANCIAL OFFICER ) -------------------------------
for and on behalf of ) 8-4-03
MTI TECHNOLOGY CORPORATION )
SIGNED BY STEVE BARBER ) /s/ Steve Barber
CEO ) -------------------------------
for and on behalf of )
XYRATEX INTERNATIONAL INC. )
Software License Agreement
July 7,2003
Page 4 of 5 MTI & Xyratex
SCHEDULE A
SOFTWARE
PLEASE SEE ATTACHED SOFTWARE LIST HEADED "SOFTWARE" AS INITIALLED BY MTI AND
XYRATEX.
Software License Agreement
July 7,2003
Page 4 of 5 MTI & Xyratex
Software
Estimated
Estimated Test/Validate
Development /Document
Test Name Platform Purpose Time Time Value Multiplier Estimated Value
Multi-purpose drive testing
suite of tools. Benchmarking/
data integrity in both raw
and filesystem mode. This is the
most valuable utility in the suite
of utilities, as it represents
many years of development,
refining, and review. Many
data corruption problems were
found and fixed by using this
utility. During each problem,
the test is always highly
scrutinized and problems have
been found and fixed over the
years. If developing a data
integrity utility
generator/checker can be
avoided, it should be. Development
started in 1996. Brett Griffiths
was the author and Greg Marcinko
has been maintaining and enhancing
since then. To start over, it
would take about a year for a
dedicated expert
systems/development/dvt person
to recreate. One of the main
values of this software is that
it is cross platform and time/
product tested over the last 7
years. The suite includes
disk_integrity,
disk_failover, disk_format,
Divist Suite Multiple disk_capacity, disk_asynch. 12 6 2 $ 414,720.00
This is a tool for replaying
I/O profiles that had been
collected in the filed. The
goal is to replay the exact
sequences of requests to a set
of devices for the purpose of
turning or debugging.
I/O Profiler/ Potential patent material and
Data Replay Multiple this would be the original work. 2 2 3 $ 138,240.00
ASL's for S200 and Vivant 400.
This is already a requested piece
of software by Xyratex. It took
MTI about 1 year to get through
the development effort and
testing cycle. Even after a year,
MTI was touted as the first to
market with an ASL. The basis for
the design was flexiblity across
multiple products. After the
release of the code, there has
not been a requirement ot fix a
single bug, thus avoiding a
lengthly and time consuming test
cycles(veritas has to approve all
of the tests, do a source code
Veritas ASL Solaris review, compiling comparisons, etc). 2 8 1 $ 115,200.00
Automates the setting and
displaying of the Mode Pages of
SCSI/FC devices. This is the only
way to set all of the mode pages
for disk drives within a mylex
based product to their correct
values or just read the values.
It also works for JBOD and RAID
products. Uses the MTI SCSI
Gldmps Solaris pass thru layer. 4 2 1 $ 69,120.00
Collects the current state of a
host system and saves it to a
text file. Very valuable for
support ogranization, as it does
a snapshot fo the entire system
that is being examined. It runs
on all UNIX platforms. Refined
host_state_collect Multiple over the past 7 years. 1 0.5 3 $ 51,840.00
This is software that abstracts
the unique API's for all of the
UNIX platforms into a single API
MTI SCSI for accessing the SCSI icotl
pasthru layer Multiple layer. 4 2 0.5 $ 34,560.00
Automation tool to Create load
and exercise an Oracle database
using the FCC license data.
Very unique experience to develop
DVTORA 1 Solaris this test. 2 0.5 1 $ 28,800.00
MTI Serial Port Interface. Used
to capture data from a comm port.
This is very valuable for UNIX
hosts because the normal method
of reading from the serial
port(tip) is very complex and
different on every system. This
was initially called nmft for
Mtispi Multiple (no more box tip). 1 0.5 1 $ 17,280.00
Data integrity test sepecifically
designed to test defragmentation
tool. Basically, this creates a
situation on the disk where it is
Fragdisk Multiple fragmented. 0.5 0.5 1 $ 11,520.00
Java based tool to dynamically
display performance statistics of
a disk. Must be used on a system
that supports iostat. This tool
is very useful for demos because
it represents visual feedback to
the user regarding various
performance metrics for specified
Mtichart Multiple devices. 0.5 0.25 1 $ 8,640.00
Displays all the data associated
with a FC-MI compliant HBA. Dumps
the internal queue in realtime of
the HBA, inquires for all
'connected' devices, etc. Very
useful tool for debugging SAN
Hbadump Solaris issues. 0.5 0.25 1 $ 8,640.00
Automation tool to show the
Showdisks Multiple available devices on a system 0.1 1 $ 1,152.00
Automated the creation and
destruction of logical volumes on
pvlinks/unpvlinks HPUX HPUX 0.1 1 $ 1,152.00
Automates the capture of system
Mti_Syslog Multiple logs during test execution. 0.1 1 $ 1,152.00
Automates the file system creation
Imount/dismount Multiple and mounting of a device. 0.1 1 $ 1,152.00
Page 1
Software
Veritas
Concat Script Automates the creation of a Veritas concatentation set. 0.1 1 $1,152.00
Veritas
Mirror Script Automates the creation of a Veritas Mirror 0.1 1 $1,152.00
Veritas
Raid10 Script Automates the creation of a Veritas RAID 10 set 0.1 1 $1,152.00
Veritas
Raid5 Script Automates the creation of a Veritas RAID 5 set 0.1 1 $1,152.00
Veritas
remove_vol Script Automates the destruction of a Veritas volume set 0.1 1 $1,152.00
Veritas
Stripe Script Automates the creation of a Veritas Stripe set 0.1 1 $1,152.00
Automates the failover testing of a mylex based controller.
failover_soft Solaris This is a combination of scripts and code. 0.1 1 $1,152.00
mti_cda_sun.sh Solaris Automates a basic capture of a crash dump from a Solaris box. 0.1 1 $1,152.00
Unixpage Multiple Test tool to validate a disk device can be used as a system
page/swap device. 0.1 1 $1,152.00
ntpage.exe Windows Test tool to validate a disk device can be used as a system
page/swap device. 0.1 1 $1,152.00
file_copy.exe Windows Executes file copy operations. 0.1 1 $1,152.00
fs_check.exe Windows Automates a file system check on Windows. 0.1 1 $1,152.00
showscsi.exe Windows Dumps devices on the SCSI/FC adapters 0.1 1 $1,152.00
Download Solaris Downloads firmware to a disk drive on Solaris. 0.1 1 $1,152.00
Inquiry Solaris Runs an inquiry to a disk drive on Solaris 0.1 1 $1,152.00
read_cap Solaris Reads the capacity of a disk drive on Solaris 0.1 1 $1,152.00
Format_512 Solaris Formats a disk to 512 sectors on a Solaris 0.1 1 $1,152.00
TOTAL $922,752.00
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