EXHIBIT 10.21
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of
__________________, 1994 (the "Effective Date"), by and between U.S. COMPUTER
SERVICES, a California corporation doing business as CableData and having its
principal place of business at 2969 Prospect Park Drive, Rancho Cordova, CA
95670 ("CableData"), and TANDEM COMPUTERS INCORPORATED, a Delaware corporation
having a place of business at 19333 Vallco Parkway, Cupertino, CA 95014
("Tandem").
RECITALS
A. CableData owns, or has rights to, and currently licenses and
distributes, certain computer application software products used in market
segments of the cable television and telephony industries, including without
limitation, DTH (Direct to Home), DBS (Direct Broadcast Satellite), SMATV
(Single Master Antennae Television), MDS (Microwave Distribution System),
MMDS (Multipoint Microwave Distribution System), CATV (Cable Television) and
TVRO (Television Receiving Only). The telephony industry includes, without
limitation, local telephone, personal communication networks, cellular, paging
and land lines. Such products include those that are designed to operate on the
Tandem Non-Stop Kernel operating system and the IBM RS6000 AIX operating system
and other UNIX systems. One of these CableData products is CableData's
Intelecable, which CableData owns all rights, title and interest in and to, and
which currently operates only on IBM's RS6000 AIX ("CableData's Intelecable").
B. In accordance with this Agreement, CableData now wishes to develop a
separate version of CableData's Intelecable to operate on Tandem's Non-Stop
Kernel and Integrity NR computer platforms and to enhance it for the domestic
convergence market (the "Product"), and to market, support and maintain the
Product in the above referenced market segments within selected countries once
it is developed.
C. Tandem wishes to assist CableData in its development of the Product by
providing certain [*] support specified in this Agreement.
D. Tandem and CableData intend to enter into a separate Tandem Alliance
Agreement (the "Alliance Agreement") on or about the Effective Date to (a)
further govern CableData's marketing, sale, maintenance and support of the
Product on Tandem platforms once it has been developed and (b) to govern
CableData's value added reselling or system integration of certain Tandem
NonStop Kernel and Integrity NR hardware and software products in the designated
market segments and countries.
NOW, THEREFORE, in consideration of these premises and of the mutual
promises and conditions contained in this Agreement, Tandem and CableData hereby
agree as follows:
1. DEFINITIONS.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-1
1.1 "Acceptance Criteria" are the mutually agreed upon written technical
and operational performance and functional criteria and Documentation standards
set forth in the Development Plan attached as Exhibit A. The Acceptance Criteria
will be reviewed from time to time and mutually agreed upon changes made as
appropriate.
1.2 "Acceptance Date" means the date Tandem accepts the completed Product
in accordance with the Development Plan and this Agreement.
1.3 "Deliverable" is a deliverable under the Development Plan, including,
but not limited to, object code, Specifications or Documentation.
1.4 "Development Plan" is the written development plan for the Product
mutually agreed to by the parties to be set forth in Exhibit A, which includes,
but is not limited to, the Acceptance Criteria, Deliverables, Documentation,
Milestones and Specifications.
1.5 "Documentation" is the documents, manuals, product descriptions and
other written materials for the Product, referred to, indicated or described in
the Development Plan, including, but not limited to, any user manuals, operating
materials or Specifications.
1.6 "Eligible Products" means Tandem's Non-Stop Kernel and Integrity NR
hardware and software products described in Exhibit B attached hereto.
1.7 "Milestone" is the completion of all of the Deliverables included in a
phase as described in the Development Plan.
1.8 "Specifications" are the functional specifications, external and
internal design specifications, product descriptions and other Documentation
prepared by CableData and approved by Tandem, which define the purpose,
functions, features and performance of the Product set forth in the Development
Plan.
1.9 "Subscriber" means, for purposes of this Agreement, each active
subscriber on CableData's Product during any month. A month, for purposes of
this definition, is the period between successive final month-end cutoffs for
CableData's or its subsidiaries' distributors' or agents' invoicing purposes. An
"active" subscriber, for purposes of this definition, is a residential,
business, educational or governmental entity subscribing to one or more services
in the Target Market.
1.10 "System Libraries" means the code libraries described in the
Development Plan that interface CableData's Intelecable with the Tandem
Platforms.
1.11 "The Tandem Platforms" are Tandem's NonStop Kernel and Integrity NR
computer systems and their successor systems, however designated, so long as the
successor platforms are binary compatible with the NonStop Kernel and Integrity
NR operating systems, whichever the case may be.
1.12 "Target Market" means the CATV, DTH, DBS, MDS, MMDS, SMATV, TVRO,
telephony or convergence market segments in the countries set forth in attached
Exhibit C. The parties may agree from time-to-time to add certain market
segments or countries to, or delete them from, the Target Market.
CableData Port of Intelecable-2
2. DEVELOPMENT OF PRODUCT.
2.1 GENERALLY CableData will complete the development of the Product in
accordance with the Development Plan, including, but not limited to, porting the
System Libraries to be capable of operating on the Tandem Platforms. All
personnel assigned by CableData to the development of the Product shall possess
suitable technical skills and expertise consistent with the requirements of
their respective assignments under the Development Plan. Except for the "Tandem
Payment" described in Section 3.1 and the Tandem support described in Section
2.2, CableData will be responsible for all costs, facilities, equipment and
support related to the development of the Product and its other obligations
under this Agreement.
2.2 TANDEM SUPPORT. In addition to the Tandem Payment, Tandem will assist
CableData in developing the Product by providing CableData with a combined
credit for up to [*] to be applied solely towards (a) Eligible Products
purchased or licensed from Tandem and (b) Tandem technical and professional
services referred to in the Development Plan ("Professional Services"). Tandem
may use subcontractors to provide Professional Services under this Agreement.
Each time CableData acquires such Eligible Products and Professional Services,
Tandem will debit the [*] credit based on the discounted price Tandem then
customarily charges its Alliance Partners for the applicable Eligible Product or
Professional Service (the "Discount Price"). If CableData has not exhausted the
entire credit by the Acceptance Date, it will expire and unused credit amounts
will be retained by Tandem. The credit will apply only to Eligible Products
developed, owned and manufactured by Tandem and not to Eligible Products
acquired by Tandem from third parties. CableData may purchase or license a
reasonable quantity of such third party Eligible Products from Tandem at its
then-current cost. If CableData exhausts the entire credit, it must pay for any
additional Eligible Products and Tandem Professional Services it acquires at the
Discount Price. Eligible Products acquired by CableData under this Section 2.2
will be used solely by CableData to satisfy its obligations under this Agreement
and will be subject to Tandem's then-current Development System Policies and
Guidelines and its then-current local standard agreement(s) for the purchase and
the license of Tandem Eligible Products and the acquisition of Professional
Services. The Eligible Product purchase agreement(s) and the Professional
Services agreement will be mutually agreed to and entered into by the parties
during the course of the development of the Product (the "Product Purchase
Agreement" or the "Professional Services Agreement").
2.3 DEVELOPMENT DEPENDENCIES. Tandem recognizes that the Product will
utilize the Tuxedo transaction processing system. Tandem will use reasonable
efforts to make a version of Tuxedo which is suitable for Product acceptance
testing hereunder available on its Non-Stop Kernel platform no later than the
third calendar quarter of 1995. Tandem also recognizes that the Product must
utilize Sun Microsystems' ONC RPC protocol in order for it to be ported to the
Integrity NR platform. Therefore, Tandem will use reasonable best efforts to
make a version of such protocol available on the Integrity NR platform for
Product acceptance testing hereunder. Tandem further agrees to use reasonable
best efforts to make its D30 version of its NonStop Kernel operating system (a)
POSIX 1003.1 (v. 1990) compliant in accordance with release 1 under Tandem's
NonStop Kernel Open System Services (OSS) Product API implementation document
dated May 13, 1994, (b) POSIX 1003.2 compliant in accordance with release 1
under Tandem's NonStop Kernel Open System Services (OSS) Product Utilities
implementation document
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-3
dated September 15, 1994 and (c) National Language Support ("NLS") XPG4-I18.N
compliant, in each case for Product acceptance testing hereunder. If Tandem does
not (i) make Tuxedo available, (ii) achieve POSIX 1003.1 and POSIX 1003.2
compliance, or (iii) achieve NLS XPG4-I18.N compliance, in each case as and when
set forth above, then CableData's obligation to deliver the completed NonStop
Kernel or Integrity NR version of the Product, whichever the case may be, on the
date set forth in the Development Plan will be extended for a period of time
equal to the period of time that such availability or compliance is delayed, or
for such other period of time as the parties may otherwise agree upon in
writing, and the parties will revise relevant Milestone due dates accordingly.
2.4 ACCEPTANCE TESTING.
2.4.1 Each Deliverable will be created by CableData in accordance
with the Specifications and Development Plan to meet the Acceptance Criteria and
will be subject to Tandem's approval, also in accordance with the Acceptance
Criteria. Acceptance tests shall be run in the presence of representatives
designated by Tandem and CableData, respectively, using mutually agreed to test
data and cases corresponding to mutually agreed upon test procedures. The
acceptance tests shall establish whether each Milestone satisfies the Acceptance
Criteria and conforms to the Specifications applicable to such Milestone.
2.4.2 Tandem shall notify CableData in writing within five (5)
business days of any failure(s) or deviation(s) of a Deliverable discovered in
acceptance testing. CableData shall submit to Tandem, as soon as possible, but
in any event within five (5) business days after receipt of notification of a
failure, a proposed plan of action to correct such failure which shall have a
reasonable opportunity for success. CableData will amend its proposed plan of
action as reasonably required by Tandem, and will promptly and diligently
implement the same upon Tandem's approval thereof.
2.5 PROJECT CHANGE ORDERS AND SCHEDULE CHANGES. From time to time during
the development phase of this Agreement, either party may submit requests which
alter, amend, enhance, add to, or reduce the other party's obligations under the
Development Plan. Each party shall evaluate such requests and promptly respond
to the other party, within fourteen (14) days, or such other period of time as
the Project Managers may mutually agree to, with a description of the technical,
price, schedule, and Deliverable impacts of the requested change for current and
subsequent phases of the development. Any additions, deletions, modifications,
or changes which affect any obligation of either party shall be documented in
project change orders issued hereunder ("Change Orders"). Such Change Orders
will include, but not be limited to, the agreed upon changes in Specifications,
the impact on the development schedule and the impact, if any, on the cost of
the development of the Product. Change Orders will be incorporated herein upon
acceptance in writing by both parties as if attached hereto.
2.6 PROJECT MANAGEMENT.
2.6.1 TANDEM PROJECT MANAGER. Tandem shall designate a Project
Manager (the "Tandem Project Manager") who shall have overall responsibility for
the: (i) coordination of the development of the Product; (ii) acceptance of
Deliverables; and (iii) approval of Change Orders. The
CableData Port of Intelecable-4
Tandem Project Manager shall be CableData's point of contact within Tandem for
the resolution of any problems that may arise in connection herewith.
2.6.2 CABLEDATA PROJECT MANAGER. CableData shall designate a Project
Manager (the "CableData Project Manager"), who shall have overall responsibility
for the: (i) direction and coordination of the development of the Product; and
(ii) approval of Change Orders. The CableData Project Manager shall be Tandem's
point of contact within CableData for the resolution of problems which may arise
in connection herewith.
2.6.3 MANAGEMENT PROCEDURES. The CableData Project Manager and
Tandem Project Manager shall establish and implement reasonable project
management procedures. Such project management procedures shall include, without
limitation, the following: (a) regularly scheduled project status meetings
occurring at least once a quarter during the development of the Product and
thereafter during the term of this Agreement to discuss the overall status of
the development of the Product and each party's ongoing obligations and efforts
under this Agreement (the "Quarterly Meetings"); (b) product design review
meetings in the development of the Specifications; (c) Change Order procedures;
(d) payment certification procedures; (e) acceptance testing; and (f) all other
management procedures reasonably deemed necessary by the CableData Project
Manager and Tandem Project Manager. The CableData Project Manager will provide a
project status report which will be generated upon CableData's completion of
each Milestone. In addition to the Quarterly Meetings, each Manager will meet
with the other Manager at his or her reasonable request to coordinate with
respect to any dispute which may arise relating to the scope, direction or
performance of the development of the Product.
2.6.4 MEETINGS AND SCHEDULES. In addition to the Project Manager,
each party will designate one (1) person to attend each Quarterly Meeting to be
a technical specialist to speak for that party with respect to technical
matters. The parties' Project Managers and technical representatives may be
replaced at any time, by written notice of the designating party to the other
party. Each party will cause its Project Manager and representative to attend
the Quarterly Meetings in locations and at times reasonably acceptable to both
parties. Each party shall be responsible for its own costs and expenses in
attending and participating in such meetings. The CableData Project Manager
shall also develop internal time and responsibility schedules as are necessary
to accomplish the development of the Product in accordance with this Agreement
and shall take appropriate action to maintain such schedules and to promptly
resolve development problems and Specification issues as they arise. The
CableData Project Manager shall supply copies of all such schedules to the
Tandem Project Manager, upon its reasonable request.
2.7 PRODUCT MARKETING, MAINTENANCE AND SUPPORT.
2.7.1 MARKETING. CableData will actively, diligently and
competitively market the Product on the Tandem Platforms in all countries within
the Target Market in accordance with the Marketing Plan referred to below in
Section 2.7.2. On a case-by-case basis, the parties may agree to expand the
Target Market to other market segments or non-English speaking countries on
mutually agreeable terms. CableData may market the Product directly, through
subsidiaries, through local distributors selected by CableData, or through other
means or mechanisms selected by CableData, and
CableData Port of Intelecable-5
CableData shall retain complete discretion in the appointment and use of such
distributors, means or mechanism, subject to its marketing obligations set forth
in Section 2.7 and the Alliance Agreement. CableData's use of distributors,
subsidiaries or agents to market the Product will not release it from any of its
obligations under this Agreement.
2.7.2 MARKETING PLAN. The Alliance Agreement will include a mutually
agreed to Marketing Plan for the Product. The Marketing Plan may provide for
joint participation in business and trade shows, exhibitions, and similar
events, cooperative marketing and communications with distributors and customers
and appointment of a marketing representative for each party. In accordance with
the Alliance Agreement, each party will cause its employees to cooperate with
the other party's employees in such joint or cooperative marketing efforts
agreed to under the Marketing Plan. If marketing representatives are provided
for, each party may change its representative upon notice to the other party.
2.7.3 MAINTENANCE OF FUNCTIONALITY AND FEATURES. During the term
of this Agreement, CableData will ensure that the Product's functionality and
features are available on each Tandem Platform and are equivalent to the
highest level of functionality and features CableData provides for other
versions of CableData's Intelecable, or its similar software products, which
operate on non-Tandem computer platforms. This will include, without
limitation, assuring that the System Libraries, and the Product as a whole,
comply with (a) POSIX 1003.1 (v. 1990) in accordance with release 1 under
Tandem's NonStop Kernel Open System Services (OSS) Product API implementation
document dated May 13, 1994, (b) POSIX 1003.2 in accordance with release 1
under Tandem's NonStop Kernel Open System Services (OSS) Product Utilities
implementation document dated September 15, 1994 and (c) those portions of
National Language Support XPG4-I18.N which are material to the full and
proper operation of the Product in the language of any non-English speaking
country that the parties may agree to add to the Target Market from
time-to-time so that CableData is able to market such version of the Product
in such country promptly after the parties have agreed to such addition.
CableData will announce that such functionality and features will be
available on the applicable Tandem Platform at the same time and to the same
extent as it announces that the functionality and features are or will be
available on any non-Tandem platform. CableData will provide such
functionality and features on the applicable Tandem Platform no later than
ninety (90) days after the date it first provides such functionality on any
non-Tandem platform. Notwithstanding the foregoing, if an end-user customer
dictates that the Product include third party software functionality or
features that are not then available on either Tandem Platform, and CableData
reasonably determines that it is not technically feasible to make such
functionality or features available on either Tandem Platform under this
Section 2.7.3, then before or promptly after making the functionality or
features available on the non-Tandem platform CableData will give Tandem
notice of that fact and the parties will thereafter promptly meet to review
CableData's determination. If Tandem reasonably agrees that making such
functionality or features available is technically unfeasible, then CableData
need not make such functionality or features available on either Tandem
Platform or the parties may agree to attempt to make the functionality or
features available on mutually acceptable terms, which may include further
Tandem monetary and/or technical support. On the other hand, if the parties
do not agree on the technical feasibility of making such third party
functionality or features available, then the dispute will be resolved in
CableData Port of Intelecable-6
accordance with the dispute resolution provisions of Section 12.9 below and
CableData's obligation to make the functionality or features available on the
Tandem Platforms will be deferred until the dispute is resolved. If the
maintenance of the functionality and features of the Product under this
Section 2.7.3 results in any modifications or enhancements to or derivative
works of the Product, such modifications, enhancements or derivative works
will be considered part of the Product.
2.7.4 ALLIANCE AGREEMENT. Tandem and CableData will enter into the
Alliance Agreement. When entered into, the Alliance Agreement will govern the
marketing, sale, maintenance and support of the Product to and for Tandem
customers for use with Eligible Products, as modified or supplemented by any
additional or different terms in this Section 2.7, if any. The Alliance
Agreement will also govern any mutually agreed to discounts or fees provided to
CableData in connection with CableData acting as a value added reseller or
system integrator of Eligible Products or a Tandem Alliance software house.
3. FUNDING OF THE DEVELOPMENT.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-7
[*]
4. COOPERATION. Each party shall cooperate with the other party during the
term of the Agreement as follows:
4.1 TECHNICAL DIRECTION AND INFORMATION. Each party will use good faith
efforts to provide the other party with advance notices of new product
developments and releases that its technical representative under this Agreement
has determined have applicability and appropriateness to the Product and
Eligible Products as soon as practical, but in no event later than such
information is publicly disclosed by the party providing such information. The
receiving party shall treat such advance notices as confidential and proprietary
information of the other party in accordance with Section 7.4.
4.2 NEW PRODUCTS. As and when Tandem releases or makes available in a
country within the Target Market any new software products for use with Eligible
Products, Tandem and CableData may jointly evaluate such products for
applicability to the Product, and in the event that they reasonably agree that
such products are applicable to the Product, then Tandem may provide CableData
with a machine-executable copy of the product free of charge solely for
evaluation purposes in accordance with the terms of the Product Purchase or Loan
Agreement.
4.3 EXISTENCE OF AGREEMENT. Neither party shall disclose the existence of
this Agreement until such time as the parties shall mutually agree upon and
implement a public announcement, except to its employees, contractors or agents
who have a strict need to know about it in order for such party to meet its
obligations under this Agreement; thereafter, either party may disclose the
existence of this Agreement, but neither party shall disclose the specifics of
the Agreement to third parties without the prior written consent of the other
party, except to its employees, contractors or agents as set forth above, as may
be required by law or to its auditors in the internal operations of its
business.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-8
5.1 RETAINED DISCOUNTS AND INFLUENCE FEES. Beginning on the first day of
the first calendar quarter following the Effective Date and for the remaining
portion of a (5) year period commencing as of the Effective Date, Tandem will
retain [*] during the first year of such period, [*] during the second year
of such period and [*] during the third, fourth and fifth years of such
period, of (a) any and all "Discounts" (defined in the Alliance Agreement)
CableData receives under the Alliance Agreement for purchases, licenses or
leases of any Tandem products, including, but not limited to, Eligible
Products, for value added resale, system integration, internal use, service
bureau or any other purpose, except for use as a Tandem development system
("Retained Discounts"), and (b) any and all software house "Revenue Influence
Fees" (defined in the Alliance Agreement), or any other fees CableData
receives under the Alliance Agreement on revenue Tandem obtains from a
customer's purchase or lease of Tandem hardware, which result from any and
all CableData application or other software packages covered by the
Agreement, including, but not limited to, the Product ("Retained Fees"). For
example, if CableData is acting as a Tandem value added reseller in the
second year of the retention period and is receiving a [*] Discount, then
Tandem will retain [*] points of the Discount leaving CableData with a [*]
percent [*] net Discount; and if in the third year of the retention period
CableData then becomes a software house instead of a value added reseller and
is receiving a [*] percent [*] Revenue Influence Fee, then Tandem will retain
[*] percentage points of the Fee leaving CableData with a net Fee of [*]
percent [*]. Cumulative Retained Discounts and Retained Fees during the
retention period will be capped at [*].
5.2 SUBSCRIBER FEE. Beginning on the Effective Date and for a period of
five (5) years thereafter, CableData will accrue for Tandem's benefit a
Subscriber count fee as follows: For each customer of CableData providing
Subscriber services in the Target Market (other than non-paying Beta site
customers) who uses the Product on or with any Eligible Product in any manner
(including, without limitation, via licensing or in a service bureau
arrangement), no matter who owns, leases, possesses, operates or controls the
Eligible Product itself, Tandem shall earn a fee of [*] per month per
subscriber (the "Subscriber Fee"). Cumulative Subscriber Fees during the five
(5) year Subscriber Fee period will be capped at [*].
5.3 FEE OFFSETS. Within thirty (30) days after Tandem receives each
monthly Subscriber Fee report from CableData described in Section 5.5 below, it
will, for CableData's benefit, (a) offset accrued and previously unoffset
Retained Discounts and Retained Fees against all accrued Subscriber Fees which
have not been previously offset against and (b) provide CableData with a written
report of the offset. For example, if at the end of the first month there are
[*] in Retained Discounts and Retained Fees and CableData's Subscriber Fee
report shows [*] in Subscriber Fees, the offset will leave no remaining
unoffset Retained Discounts and Retained Fees to carry forward for the next
month and [*] in remaining accrued Subscriber Fees. If in the next month
there are [*] in new Retained Discounts and Retained Fees and [*] in
new Subscriber Fees, then the [*] in newly accrued Retained Discounts and
Retained Fees will be offset against a total of $100,000 in new and previously
accrued and unoffset Subscriber Fees leaving a zero balance in both the accrued
Retained Discount and Retained Fees account and the accrued Subscriber Fee
account to carry forward for the next month.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-9
5.4 FINAL RECONCILIATION OF FEES. At the end of the five (5) year period
described in Sections 5.1 and 5.2 above, if there are any remaining unoffset
Subscriber Fees CableData will pay this amount to Tandem by check at Tandem's
office at 19333 Vallco Parkway, Cupertino, CA 95014 within thirty (30) days
after the end of the (5) year period. If at the end of the five (5) year period
the cumulative amount of all accrued Subscriber Fees, including those which have
received an offset, does not equal [*] CableData does not have to pay
Tandem the difference between such cumulative amount and [*]. If at the
end of the five (5) year period, all remaining Retained Discounts and Retained
Fees exceed all remaining Subscriber Fees, CableData will not be entitled to the
excess which will be retained by Tandem.
5.5 RECORDS AND REPORTS. CableData shall keep complete and accurate
written records of Subscriber Fees and Tandem will keep complete and accurate
written records of Retained Discounts and Retained Fees. Beginning with the
second month following the Effective Date, for each calendar month during the
five (5) year period referred to in Section 5.1 and 5.2 above, CableData will
provide, within fifteen (15) days after the end of each month, a written report
so that Tandem can determine the Fees offset for that month. Not more than once
per calendar quarter, within thirty (30) days after written request to the other
party, Tandem or CableData shall, through an independent third party, be
entitled to conduct an audit and review of the financial records and reports of
the other party relating to Subscriber Fees and counts or Retained Discounts and
Retained Fees in order to verify the proper amounts of accrued Subscriber Fees
and offsets. The audit shall occur within normal business hours, at the
corporate headquarters in California of the party being audited. The auditing
party shall be entitled to retain an independent certified public accounting
firm to assist it with the audit. The parties shall be responsible for their own
costs and expenses in connection with the audit, unless the independent auditor
determines that the audited party's financial records were materially incomplete
or inaccurate by at least [*] percent [*], in which case it will bear the
other party's costs and expenses of that audit.
5.6 TAXES. All taxes, duties, fees and other governmental charges of any
kind, including withholding taxes (except based on Tandem's net income), which
are levied, assessed, or otherwise imposed by or under the authority of any
government or any political subdivision thereof, on revenues derived by
CableData, its subsidiaries, distributors or agents in connection with licenses
of the Product or Retained Discounts and Retained Fees and Subscriber Fees, will
not be considered a part of, deducted from, or offset against any Subscriber
Fees payable to or Discounts and Fees retained by Tandem under this Section 5.
6. NON-EXCLUSIVITY. The parties agree that the relationship between them set
forth in this Agreement is non-exclusive and each party is free to enter into
similar or other agreements with third parties.
7. PROPRIETARY RIGHTS.
7.1 OWNERSHIP OF THE PRODUCT. CableData shall retain exclusive ownership
of all right, title and interest in and to the Product, and all portions thereof
(including, but not limited to System Libraries), now existing or to be
developed or adapted pursuant to this Agreement by
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-10
CableData, Tandem, any third party or parties, or their respective employees,
representatives, agents, consultants, independent contractors, successors and
assigns, in any and all forms (including but not limited to source code and
machine-executable code), all derivative works thereof and enhancements thereto,
all Product documentation, work papers or written development materials relating
to any of the foregoing developed pursuant to this Agreement, and all
Intellectual Property Rights in any of the foregoing; and Tandem hereby assigns
to CableData all right, title, and interest in and to any of the foregoing
(including but not limited to, assignment of any copyrights it may have to the
System Libraries), which it may otherwise have or be deemed to acquire in the
Product. Upon CableData's request, Tandem agrees to assist CableData at
CableData's sole expense as may be reasonably required to perfect CableData's
rights as described in this Section 7.1, which assistance shall include the
execution of any and all instruments or documents that may be necessary or
convenient to establish, evidence, maintain, defend or enforce CableData's
rights as described in this Section 7.1. "Intellectual Property Rights" means
all right, title and interest in and to patents, patent applications,
copyrights, mask work rights, trademarks, trade names and trade secrets.
7.2 OWNERSHIP OF ORIGINAL WORKS OF TANDEM. CableData does not claim any
rights to original works created or owned by Tandem which are not part of the
Product, including but not limited to any Eligible Products. All Intellectual
Property produced by Tandem created prior to the effective date of this
Agreement or which is not part of the Product will be owned by Tandem, except to
the extent such work contains any portion of the Product or any other original
work of CableData. CableData recognizes and agrees that Tandem has and retains
any and all know-how, ideas, design concepts or techniques employed by Tandem in
rendering Professional Services to CableData under this Agreement which are not
covered by Section 8.1, including all Intellectual Property rights therein, and
may provide similar services to third parties.
7.3 NO IMPLIED LICENSES. This Agreement shall not be construed or
interpreted to grant to either party any right or license, by implication,
estoppel or otherwise, to sell, transfer, assign, develop, or make any use of
this Product or any of the Eligible Products, except as expressly provided in
this Agreement or in the Alliance Agreement. Without limiting the generality of
the foregoing sentence, except as set forth in the Alliance Agreement, neither
party shall have any rights to adapt, alter, localize, license or sublicense to
third parties any of the foregoing items, without the prior written consent of
the other party, which may be granted or withheld in the other party's sole
discretion. Except as expressly set forth in this Agreement or the Alliance
Agreement, neither party shall employ, retain, or subcontract with any third
party or parties to perform any obligations or exercise any rights it may have
under this Agreement, unless such party has first obtained the prior written
consent of the other party to such action, which consent will not be
unreasonably denied.
7.4 CONFIDENTIALITY.
7.4.1 PROTECTION OF CONFIDENTIAL INFORMATION. Should either party
disclose any of its confidential information for any purpose in connection with
this Agreement, the party receiving the information shall maintain the
information in confidence, shall use at least the same degree of
CableData Port of Intelecable-11
care to maintain the secrecy of the information as it uses in maintaining the
secrecy of its own proprietary, confidential and trade secret information, shall
always use at least a reasonable degree of care in maintaining the secrecy of
the information, shall use the information only for the purpose of performing
its obligations under this Agreement unless hereafter agreed in writing by the
other party. Neither party shall disclose any such information to any person
except those of its employees, agents and contractors having a need to know in
order to accomplish the sole purpose stated above, and shall require each
employee, agent and contractor before he or she receives direct or indirect
access to the information, to acknowledge the confidential, proprietary and
trade secret nature of the information and to agree to be bound by this Section
7.4. Each party shall deliver to the other party, in accordance with any request
from the other party, all copies, notes, packages, diagrams, computer memory
media and all other materials containing any portion of the other party's
confidential information.
7.4.2 LIMITATION ON OBLIGATIONS. Neither party shall have an
obligation with respect to any portion of such information which (i) was known
to it prior to receipt from the other party, (ii) is lawfully obtained by either
party from a third party under no obligation of confidentiality or (iii) is or
becomes publicly available other than as a result of any act or failure to act
of either party. Confidential Information must be marked or otherwise clearly
designated as such in writing by the disclosing party prior to disclosure or
within five (5) days of disclosure if provided orally.
7.4.3 INCLUDED WITHIN CONFIDENTIAL INFORMATION. For purposes of this
Section 7.4, confidential information made available to Tandem by CableData may
include, without limitation, the Product and other CableData software
application products made available to Tandem in the course of performance of
this Agreement, and all documentation and code relating thereto, and
confidential information made available to CableData by Tandem may include
without limitation all information relating to the Eligible Products and any
other hardware or software Products Tandem provides CableData in the course of
performance of this Agreement, and all documentation and code related thereto.
Confidential information shall also include, but is not limited to, either
party's proprietary, technical, developmental, marketing, sales, operating
performance, cost, know-how, business and process information, computer
programming techniques, and all record-bearing media containing or disclosing
such information and techniques, as well as any samples, models or prototypes,
or parts thereof.
7.5 USE OF TRADEMARK, NAME. Except as set forth in the Alliance
Agreement, each party agrees not to use the other's name, trade name, trademark,
service mark, or other designation without such other party's prior written
consent.
8. WARRANTY. CableData represents and warrants that (a) it owns all right,
title and interest in and to CableData's Intelecable and in and to all of the
Intellectual Property it will use to develop the Product and perform its
obligations under this Agreement or (b) it has the authority to do so without
infringing the rights of any third party or creating any financial obligation to
any third party.
9. INDEMNIFICATION. CableData will defend or settle any claim against Tandem
(a) resulting from the performance or use of the Product and any information
CableData supplies about the same, or (b) that the Product
CableData Port of Intelecable-12
infringes any patent, utility model, industrial design, copyright, trade secret,
mask work, trademark or servicemark, provided Tandem promptly notifies CableData
in writing of the claim and cooperates with CableData in and grants it sole
authority to control the defense and any related settlement. CableData will pay
the costs of such defense and settlement and any costs and damages finally
awarded against Tandem. THE ABOVE STATES TANDEM'S EXCLUSIVE REMEDY AND
CABLEDATA'S ENTIRE LIABILITY FOR CLAIMS OF INFRINGEMENT BY THE PRODUCT.
10. NO CONSEQUENTIALS. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, PUNITIVE, MORAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT
FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY IS INFORMED OF THEIR POSSIBILITY,
INCLUDING, BUT NOT LIMITED TO, LOSS OF RECORDS OR DATA, GOODWILL, PROFITS, USE
OF MONEY OR PRODUCTS, STOPPAGE OF WORK OR IMPAIRMENT OF OTHER ASSETS, ARISING
OUT OF CONTRACT OR TORT.
11. TERM AND TERMINATION.
11.1 TERM. This Agreement shall become effective on the date first
written above and shall continue in effect thereafter for a period of five (5)
years unless sooner terminated pursuant to this Section 11.
11.2 TERMINATION.
11.2.1 TERMINATION FOR BREACH OR INSOLVENCY. A party may terminate
this Agreement, effective upon dispatch of written notice of termination to the
other party, without judicial notice or resolution, if: (a) the other party
breaches any of its material obligations under this Agreement and fails to cure
such breach within thirty (30) days after receipt of notice specifying the
breach; or (b) the other party ceases to conduct business in the normal course;
becomes insolvent; enters into suspension of payments, moratorium,
reorganization or bankruptcy; makes a general assignment for the benefit of
creditors; admits in writing its inability to pay debts as they mature; suffers
or permits the appointment of a receiver for its business or assets; or avails
itself of or becomes subject to any other judicial or administrative proceeding
that relates to insolvency or protection of creditors' rights.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-13
[*]
11.2.2 TERMINATION OTHER THAN FOR BREACH.
11.2.2.1 ELECTION TO TERMINATE. Notwithstanding anything to the
contrary in this Agreement, prior to Tandem's acceptance of both the final
Development Plan and the final Marketing Plan referred to in Section 3.1(b)
above, if for any reason whatsoever, Tandem or CableData decides in its sole and
absolute discretion not to agree (a) to the preliminary Development Plan, or any
part thereof, (b) to the final Development Plan, or any part thereof, (c) to the
final Marketing Plan, or any part thereof or (d) to enter into the Alliance
Agreement, then either party (the "Terminating Party") may provide the other
party (the "Non-Terminating Party") with notice that it elects to end its
participation in the development of the Product and terminate the Agreement.
However, within five (5) business days of the date of the Non-Terminating
Party's receipt of such notice, the Non-Terminating Party may provide the
Terminating Party with notice requesting that a Vice President designated by
each party jointly meet with all Project Managers and technical representatives
at an agreed upon date and time within five (5) business days of the Terminating
Party's receipt of such notice to confer regarding the Terminating Party's
election to terminate. If the meeting is requested, each party will cause such
persons to attend the meeting. If the parties have not agreed in writing within
five (5) days from the date of the meeting to continue the Agreement it will be
considered terminated at the end of such (five) 5 day period. Each party may
change its designated Vice President with notice to the other party and the
decisions of the Vice Presidents will bind the respective party. If the Non-
Terminating Party does not request the above described meeting in the time
provided for above, then the Agreement will be deemed terminated as of the date
of the Terminating Party's notice of election to terminate. [*]
11.2.2.2 REMEDY FOR ELECTION TO TERMINATE. If the Agreement is
terminated by either party in the manner set forth in Section 11.2.2.1 above, a
party's election to terminate will not be considered a breach of this Agreement
by such party. In addition, no matter which party elects to terminate the
Agreement, within thirty (30) days of the date of termination, [*] and
notwithstanding anything to the contrary in this Agreement, neither party
will have any further liability of any kind to the other party in connection
with this Agreement and the development of the Product, except for liability
for any breach of the Agreement which occurred prior to such termination and
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-14
any liability in connection with rights and obligations under this Agreement
which survive its termination under Section 12.18 or survive under the relevant
provisions of a Product Purchase Agreement or a Professional Services Agreement.
11.3 EFFECT OF TERMINATION. Except as otherwise expressly stated in this
Section 11.2 or in Section 12.18 below (Survival), upon any termination of this
Agreement all rights and obligations of each party to this Agreement shall
expire and be of no further force or effect. Upon the termination of this
Agreement for any reason, each party will promptly deliver to the other party
all of the other party's Confidential Information in its possession or control.
11.4 EXCLUSIVE REMEDY. THE REMEDIES PROVIDED FOR IN SECTIONS 11.2.1.1,
11.2.1.2 AND 11.2.2.2, AND ANY REMEDIES EXPRESSLY PROVIDED FOR ELSEWHERE IN THIS
AGREEMENT, STATE THE ENTIRE LIABILITY OF A PARTY, AND THE SOLE AND EXCLUSIVE
REMEDY OF THE OTHER PARTY, FOR THE ACTS OR OMISSIONS OF A PARTY WHICH GIVE RISE
TO SUCH REMEDIES, EXCEPT FOR ANY REMEDIES PROVIDED FOR BREACH OF THE
CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT.
[*]
12. MISCELLANEOUS PROVISIONS.
12.1 INDEPENDENT CONTRACTORS.
12.1.1 No provision of this Agreement shall be construed to
constitute either party as the agent, servant, employee, partner, or joint
venturer of the other party. The parties to this Agreement are and shall remain
independent contractors. Each party shall retain exclusive management,
direction, and control of its employees and the work to be performed by it
hereunder.
12.1.2 All personnel assigned by one party to work with the other
party pursuant to this Agreement shall remain employees of the assigning party,
and shall possess suitable technical skills and expertise consistent with the
requirements of their respective assignments. Each party shall cause any of its
employees assigned to provide services at the other party's facilities to comply
with all reasonable regulations and instructions while at such facilities, which
were previously provided to the other party or the employee. Each party shall
have the right to exclude from its premises any persons who refuse to
individually sign a nondisclosure and confidentiality agreement substantially in
the form of and no more restrictive than the provision of Section 7.4 herein.
The assigning party shall indemnify and hold the other party harmless from any
and all damages and losses finally awarded for any claims, suits or liability
for bodily injury, death, or damage to real property or tangible personal
property, which results from any failure by such personnel to comply with such
regulations and instructions (other than the negligence of the party to whom the
personnel were assigned). The indemnifying party shall have sole control of any
litigation and/or settlement and the indemnified party will promptly
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-15
notify the indemnifying party when it first learns of such suit, claim or
action. The indemnified party will provide the indemnifying party with
reasonably requested assistance in the defense or settlement of the suit, claim
or action.
12.2 NO ENDORSEMENT. TANDEM DOES NOT APPROVE, ENDORSE, WARRANT OR
GUARANTEE THE PRODUCT. CABLEDATA WILL NOT REPRESENT TO ANY THIRD PARTY THAT
TANDEM HAS APPROVED, ENDORSED, WARRANTED OR GUARANTEED THE PRODUCT WITHOUT THE
SPECIFIC PRIOR WRITTEN CONSENT OF TANDEM.
12.3 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original instrument, but both of which together
shall constitute only one and the same instrument.
12.4 ASSIGNMENT. Neither this Agreement nor any right or obligation
hereunder is assignable or delegatable in whole or in part, whether by operation
of law or otherwise, except (a) as otherwise expressly set forth in this
Agreement or (b) upon prior written consent of the other party, which consent
will not be unreasonably withheld. Any assignment or delegation which violates
this Section is void. Notwithstanding the foregoing, this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns. The successor or assign of a party hereto
shall execute and deliver all documents and instruments reasonably requested by
the other party to evidence and confirm its obligations under this Agreement.
12.5 NOTICES AND OTHER COMMUNICATION. Every notice or other communication
required or contemplated by this Agreement to be given by any party shall be
delivered either by (i) personal delivery, (ii) postage prepaid, return receipt
requested, registered or certified mail (airmail if available), or the
equivalent of registered or certified mail under the laws of the country where
mailed, (iii) nationally recognized overnight courier, such as Federal Express
or UPS, or (iv) facsimile with a confirmation copy sent simultaneously by
postage prepaid, return receipt requested, registered or certified mail, in each
case addressed to the party for whom intended at the following address:
To CableData: U.S. Computer Services
2969 Prospect Park Drive
Rancho Cordova, CA 95670
Attn: Bob Crowley, VP Marketing
Division
Facsimile: (916) 636-5750
With a copy to: General Counsel
Facsimile: (916) 636-4561
To Tandem: Tandem Computers Incorporated
19191 Vallco Parkway
Cupertino, CA 95014
Attn: Vice President & General Manager Communications
Division
Facsimile: (408) 285-5458
or at such other address as a party previously shall have designated by written
notice to the other party. Notice by registered or certified mail
CableData Port of Intelecable-16
shall be effective on the date it is officially recorded as delivered to the
intended recipient by return receipt or equivalent, and in the absence of such
record of delivery, the effective date shall be presumed to have been the 5th
business day after it was deposited in the mail. All notices and other
communications required or contemplated by this Agreement to be delivered in
person or sent by courier shall be deemed to have been delivered to and received
by the addressee and shall be effective on the date of personal delivery;
notices delivered by "tested" telex or by facsimile with simultaneous
confirmation copy by registered or certified mail shall be deemed delivered to
and received by the addressee and effective on the first business day in the
location where the facsimile was received after the date sent. Notice not given
in writing shall be effective only if acknowledged in writing by a duly
authorized representative of the party to whom it was given.
12.6 LAW TO GOVERN. The validity, construction and enforceability of this
Agreement shall be governed in all respects by the laws of California, except
its choice of law provisions, whether or not one or more of the parties shall
now be or hereafter become a resident of another state or country.
12.7 SUBJECT HEADINGS. The subject headings of the Articles and Sections
of this Agreement are included for the purpose of convenience only, and shall
not affect the construction or interpretation of any of its provisions.
12.8 NO WAIVER OF RIGHTS. All waivers hereunder must be made in writing,
and failure at any time to require any other party's performance of any
obligation under this Agreement shall not affect the right subsequently to
require performance of that obligation or any other obligation under this
Agreement. Any waiver of any breach of any provision of this Agreement shall not
be construed as a waiver of any continuing or succeeding breach of such
provision or a waiver of modification of the provision or any other provision of
this Agreement.
12.9 SETTLEMENT OF DISPUTES. Any controversy or claim between the parties
arising out of or in connection with this Agreement shall first be submitted for
resolution as follows. Within thirty (30) days of the time that such dispute or
controversy arises, a Vice President of each party shall confer in good faith in
an attempt to resolve the controversy or claim. The decisions of the Vice
Presidents will be final and binding on the parties. Either party may change its
representative at any time with prior notice to the other party. A party's
election to terminate this Agreement under Section 11.2.1.1 or 11.2.1.2 is not
subject to the foregoing. A party's election to terminate this Agreement under
Sections 11.2.2 and 12.19 will be resolved solely in the manner described in
those Sections.
12.10 STATUTE OF LIMITATIONS. Neither party will bring a legal action
related to this Agreement more than four (4) years after the cause of action
arose. Nothing in this Agreement will affect the limitation period applicable to
any action or proceeding for (i) unauthorized use or disclosure of confidential
information provided under this Agreement or (ii) infringement of proprietary
rights.
12.11 ENTIRE AGREEMENT. This Agreement represents the entire
understanding and agreement between the parties concerning the subject matter
CableData Port of Intelecable-17
hereof and supersedes any and all prior negotiations, understandings or
agreements in regard thereto, oral or written.
12.12 EXPENSES. Except as expressly provided herein to the contrary, each
party to this Agreement shall be solely responsible for its expenses incurred in
connection with the negotiation, preparation, execution, delivery and
performance of this Agreement.
12.13 AMENDMENTS. This Agreement or the Exhibits hereto may not be
modified except by an instrument or instruments in writing signed by the party
or parties against whom enforcement of such modification is sought.
12.14 INCORPORATION BY REFERENCE. Exhibits A through F attached to this
Agreement and referred to herein are hereby incorporated by reference into this
Agreement.
12.15 SEVERABILITY. Whenever possible, this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement should be prohibited or invalid under
applicable law, such provision shall be construed as ineffective to the extent
of such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
12.16 EXPORT CONTROLS. CableData acknowledges that the Eligible Products,
and all related confidential and technical information, documents and materials,
are subject to export controls under the U.S. Export Administration Regulations.
CableData will, cause its subsidiaries, affiliates, agents, distributors, and
customers to: (i) comply strictly with all legal requirements established under
these controls; (ii) cooperate fully with Tandem in any official or unofficial
audit or inspection that relates to these controls and (iii) not export, re-
export, divert, transfer or disclose, directly or indirectly, any Eligible
Products, or related confidential or technical information, document or
material, or any direct product thereof, to any of the countries currently or
subsequently listed in the U.S. Export Administration Regulations, or to any
national or resident thereof, without obtaining the prior written authorization
of Tandem and the U.S. Commerce Department.
12.17 UNLAWFUL PAYMENTS. Neither CableData nor Tandem will use any
payment or other benefit derived from the other to offer, promise or pay any
money, gift or any other thing of value to any person for the purpose of
influencing official actions or decisions affecting this Agreement, while
knowing or having reason to know that any portion of this money, gift or thing
will, directly or indirectly, be given, offered or promised to (i) any person
acting in an official capacity for any government or its instrumentalities
(including government-owned or controlled corporations) or any non-governmental
client or prospective client or (ii) any political party, party official or
candidate for political office.
12.18 SURVIVAL. Each party's rights and obligations under Sections 5
(Recoupment of Tandem Payment) and Section 12.19 (Export Controls) are expressly
intended to survive the expiration or termination of this Agreement. However, if
the Agreement is terminated in accordance with Sections 11.2.1.1 or 11.2.1.2 of
Section 11.2.1, then each party's rights and obligations under Section 5 will
not survive, except with respect to the Integrity NR version of the Product if
it is completed before termination and
CableData Port of Intelecable-18
[*] In addition, no expiration or earlier termination of this Agreement shall
relieve either party of its rights or obligations under Section 7 of this
Agreement (Proprietary Rights), which rights and obligations are expressly
intended to survive any such expiration or termination.
12.19 FORCE MAJEURE. Neither party will be liable for any failure or
delay in performing an obligation that is due to causes beyond its reasonable
control, such as natural catastrophes, governmental acts or omissions, laws or
regulations or labor strikes. If any such cause continuously prevents or delays
performance of this Agreement for more than sixty (60) days, the party awaiting
performance may elect to terminate this Agreement by providing notice to the
other party in the manner set forth in Section 11.2.2.1, and the other party may
invoke the request for meeting procedures set forth in such Section. In the
event a force majeure event occurs prior to Tandem's acceptance of the completed
Product and Tandem is the party awaiting performance, if Tandem thereafter
terminates this Agreement as provided for above, [*].
IN WITNESS WHEREOF, the parties have caused their authorized
representatives to execute this Agreement in each party's name as of the
Effective Date.
"CableData" "Tandem"
U.S. COMPUTER SERVICES, TANDEM COMPUTERS INCORPORATED
a California corporation
By: /s/ Robert D. Crowey By: /s/ John Sims
--------------------------- --------------------------
Name: Robert D. Crowey Name: John Sims
------------------------- ------------------------
Title: Senior Vice President Title: Vice President
_____________________________ ___________________________
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-19
EXHIBIT A
Development Plan
CableData Port of Intelecable-20
EXHIBIT B
Eligible Tandem Products
The following Tandem hardware and software products described in Tandem's
published Price List as of the Effective Date:
1. All servers running the Guardian operating system and all associated
attached peripheral devices.
2. Himalaya series servers (currently K100, K1000 and K10000) running the
NonStop Kernel operating system and all associated attached peripheral devices,
including systems designated by Tandem as their successors.
3. Integrity NR servers (NR4401, NR4412, NR4436 designations) running UNIX
operating system 5.4 (IRIX or Tandem based UNIX operating systems) and all
associated attached peripheral devices, including systems designated by Tandem
as their successors.
CableData Port of Intelecable-21
EXHIBIT C
Target Market Countries
United States of America; Guam; Puerto Rico; Canada; United Kingdom of Great
Britain and Northern Ireland; Australia
CableData Port of Intelecable-22