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NOVELL, INC.
COMPOSITE SIGNATURE AGREEMENT
Name and Address of Customer:
Digital Products, Inc. telephone: 617-647-1234
411 Waverly Oaks Road facsimile: 617-647-4474
Waltham, MA 02154
Novell Branch Office:
122 East 1700 South telephone: 801-429-7000
Provo, Utah 84606 facsimile:801-453-1267
This Composite Signature Agreement is entered into by and between
Novell Inc. ("Novell") and Digital Products, Inc. ("Developer"), and shall
commence on the date accepted and executed by Novell ("Effective Date").
This Composite Signature Agreement, when signed by Novell and
Developer, shall have the same effect as each of the below identified documents
would have if signed by Developer.
Initials Title of Document
__________ Special Addendum (digi.4-0)
__________ Novell Embedded Systems Technology (NEST) Master Agreement (NESTMSTR.103)
__________ NEST SDK Technology Provider Supplement (PROVIDER.101)
__________ NEST SDK Developer Product Distribution License Exhibit (SDKOEM.100)
Each of the identified documents is incorporated by reference. In the
event of a conflict or ambiguity between documents, the specific shall control
the general; the relative order of specificity of the documents is as follows:
(1) Special Addenda, (2) Standard Addenda, and (3) the Standard Agreement.
DEVELOPER ACKNOWLEDGES THAT DEVELOPER HAS READ EACH OF THE DOCUMENTS
DESIGNATED BY THE INITIALS OF DEVELOPER'S AUTHORIZED REPRESENTATIVE, UNDERSTANDS
THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS:
This Agreement, together with all referenced documents, is the
exclusive statement of the entire agreement between Novell and Developer and
supersedes all prior oral and written representations or agreements between the
parties as to the subject matter of the Agreement.
Accepted by:
Novell, Inc. Digital Products, Inc.
By: By:
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Title: Title:
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Date: Date:
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SPECIAL ADDENDUM
Novell and Developer acknowledge and agree that the following terms and
conditions amend and supplement the Agreement between the parties and by this
reference, this Special Addendum is incorporated into and made a part of the
Agreement.
1. Add the following definitions to Section 2 of the Supplement:
"Added-Value Requirement" means the specific services or activities
which Developer is required to provide Licensed Customers in order to be
eligible for a percentage of the Customer Royalty. More specifically,
Added-Value Requirement means Developer shall:
provide Licensed Customers all engineering support and training
for Tools at a level satisfactory to the Licensed Customer and
equal to or superior to that would typically be provided by
Novell to Novell's licensees of the Tools;
provide consulting and/or development services, that could not be
ordinarily provided by Novell, to Licensed Customers to assist
them in the development of Customer Products;
In conjunction with its distribution of the Tools and/or
Developer Toolkit to Licensed Customer, license for distribution
Qualifying Developer Products to Licensed Customer."
"Customer Royalty" shall mean the per copy royalties owed to Novell from
a Licensed Customer during a specific term of the Distributor Exhibit
executed between Novell and the Licensed Customer.
2. Renewal. Notwithstanding Paragraph 14.1 of the Novell Embedded System
Technology Master Agreement, any automatic renewal to the Agreement
shall be on a 90 day basis, with the 90 day Agreement subject to
termination at any time by either party upon thirty (30) days' prior
written notice.
3. Assignment. Notwithstanding Paragraphs 14.4.1 and 18.6 of the Novell
Embedded System Technology Master Agreement, Novell may not unreasonably
withhold its consent to a complete assignment and delegation by
Developer to a successor in interest of all or substantially all of the
assets or business of Developer.
4. Operating System Companies. The parties acknowledge and agree that
Developer is a company that designs or develops computer operating
systems and that Developer's distribution of Tools is not in and of
itself a violation of Section 9.6 of the NEST SDK Technology Provider
Supplement.
5. Support. Notwithstanding Paragraph 8 of the NEST SDK Technology Provider
Supplement, Novell shall use commercially reasonable efforts to assist
Developer in its implementation of any or all Novell bug fixes provided
under the Agreement to the Tools, at no cost to developer.
6. Attachment: Form Addendum. The Form Addendum attached to the NEST SDK
Technology Provider Supplement is hereby replaced with the Form Addendum
attached as Exhibit A to this Amendment.
7. Royalties to Developer. Add the following "Royalties" subsection to
Section 4 Consideration of the NEST SDK Technology Provider Supplement:
In consideration for Developer meeting the Added-Value
Requirement, Developer shall be entitled to 30% of the Customer
Royalties received during the initial three year term.
Notwithstanding the foregoing, if at any time Novell reasonably
deems that Developer ceases to meet the Added-Value Requirement,
and developer fails to cure such Added Value Requirement
deficiency within Deficiency Notice Period or such deficiency
recurs within 6 months of cure, Novell shall have no obligation
to pay Developer, and Developer shall not be entitled to, any
further percentage of Customer Royalties. "Deficiency Notice
Period" shall mean thirty (30) days from receipt of written
notice; however, where the deficiency by its nature is subject to
cure but more than 30 days are required due to the nature of the
deficiency, "Deficiency Notice Period" shall mean a reasonable
time from receipt of notice to which the parties mutually agree
in writing.
8. Fees and Royalties. Developer shall collect applicable Customer
Royalties from Licensed Customers on Novell's behalf subject to the
terms of this Section 8:
a. Reporting and Payment. Within thirty (30) days from the end of
each calendar quarter, for each Licensed Customer Developer
agrees to provide Novell with: 1) a written statement, certified
by an authorized representative of Developer, setting forth the
Customer Royalties due for that quarter, the Customer Royalties
collected by Developer, and the amounts to which Developer is
entitled under Section 7 above; 2) payment of the Customer
Royalties so collected, less any amounts to which Developer is
entitled pursuant to Section 7 above. During the term of the
Agreement, Developer shall provide Novell with such written
statement whether or not any Customer Royalty has accrued during
the reporting period. A final written statement by Developer
shall be rendered and payment made to Novell within thirty (30)
days after the termination or expiration of the Agreement.
b. Customer Royalty not paid to Novell by Developer when due will
accrue interest on an annual basis from the date due until paid
of two percentage points (2%) over the prime interest rate of the
Chase Manhattan Bank of New York on any outstanding balance or
the maximum legal rate allowed by law, whichever is less.
c. Audit. Developer shall maintain complete and accurate accounting
records, in accordance with generally accepted accounting
practices, to support and document royalty amounts due under this
Special Addendum and shall retain such records for three (3)
years after payment is made. Developer shall, upon written
request of Novell, provide audit access to such records to
Novell. If Developer so decides, a
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mutually acceptable independent accounting firm may conduct the
audit at Developer's expense. Such access shall be granted only
during normal business hours and no more frequently than once in
each calendar year. All information received during the audit
shall be held in confidence by the parties.
d. Within thirty (30) days' written notice from Novell, Developer
shall cease collecting applicable Customer Royalties, and Novell
shall commence collection of such Customer Royalties itself.
e. If Novell terminates the Contract Documents without cause, as
provided in Section 14.7 of the Agreement, Developer shall be
entitled to 75% of the Customer Royalties collected by Novell
that come due during the term of the NEST SDK Technology Provider
Supplement in which Novell so terminates the Contract Documents.
Novell shall administer Customer Royalty funds and make
appropriate disbursements to Developer on a semi-annual basis.
SIGNATURES.
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NOVELL, INC. DIGITAL PRODUCTS, INC.
Signature:___________________________ Signature:___________________________
Name:________________________________ Name:________________________________
Title:_______________________________ Title:_______________________________
Date:________________________________ Date:________________________________
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EXHIBIT A
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ATTACHMENT: FORM ADDENDUM
SPECIAL ADDENDUM FOR TECHNOLOGY PROVIDER CUSTOMERS
Developer and Novell agree that the following terms and conditions amend and
supplement the NEST SDK 1.x Supplement ("the Supplement") and the NEST SDK
Developer Product Distribution License:
1. The following definitions shall be added to Section 2 of the Supplement:
"Technology Provider means a third-party entity which Novell has
licensed to distribute and sell the Tools under the terms and
conditions of a certain NEST SDK Technology Provider Agreement
entered into by Novell and the third-party."
2. Section 8 of the Supplement shall be replaced with the following:
"Consideration Developer agrees to pay the Technology Provider
upon execution of this Supplement a non-refundable license fee,
to be negotiated between Developer and Technology Provider, for
the Tools. Maintenance Modifications and Enhancements to the
Tools may require additional license fees.
3. If Developer enters a NEST SDK Developer Product Distribution License
Exhibit(s) with Novell, Developer shall pay the royalties required by
the Exhibit(s) to the Technology Provider. The Technology Provider will
retain those portions of such royalty payments to which its is entitled
under its agreements with Novell, and shall send the portions to which
Novell is entitled to Novell. Developer shall cease making payments to
the Technology Provider and instead pay the royalties required by the
Exhibit(s) directly to Novell upon thirty (30) days' written notice from
Novell.
SIGNATURES.
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NOVELL, INC. DEVELOPER:_________________________
Signature:_____________________________ Signature:_________________________
Name:__________________________________ Name:______________________________
Title:_________________________________ Title:_____________________________
Date:__________________________________ Date:______________________________
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NOVELL, INC.
Novell Embedded Systems Technology Master Agreement
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This Novell Embedded Systems Technology Master Agreement (the "Agreement") is
entered into by NOVELL, INC., a Delaware corporation with offices at 122 East
1700 South, Provo, UT 84606 ("Novell"), and Digital Products Inc., a corporation
with offices at 411 Waverly Oaks Rd., Waltham, MA 02154 ("Developer").
1 Purpose. The purpose of the Novell Embedded Systems Technology
(NEST) Program is to proliferate products compatible with the
NetWare system. Under the NEST Program, Novell, Inc. ("Novell")
will make certain documentation and tools ("Tools") available to
Developer to develop products compatible and interoperable with
NetWare systems. Novell is willing to license the Tools according
to the terms and conditions of this Agreement and supplements
("Supplements") to this Agreement. This Agreement contains
general terms and conditions applicable to each Supplement. Each
Supplement shall be deemed to incorporate by reference this
Agreement unless the Supplement explicitly states otherwise.
Nothing in this Agreement or any Supplement shall be construed to
require Novell to issue, or Developer to accept, any Supplement.
2 Definitions.
2.1 Contract Documents shall mean this Agreement and/or Supplements,
including without limitation Exhibits to such Supplements.
2.2 Derivative Work means a work which is based upon one or more
preexisting works, such as a revision, modification, translation,
abridgement, condensation, expansion, collection, compilation or
any other form in which such preexisting works may be recast,
transformed or adapted, and which, if prepared without the
authorization by the owner of the preexisting works, would
constitute copyright infringement under U.S. copyright laws.
2.3 Developer Products means the products which Developer is
authorized to develop using the Tools. Each product shall be
identified in a Supplement by product name (which may be in the
form of a code name provided Developer provides Novell notice of
the actual release name prior to release), and description. A
Developer Product shall not contain the functionality of a
network operating system, but shall instead provide
interoperability with and access to Novell
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network operating system services. The only Novell code licensed
hereunder contained within a Developer Product shall be the Tools
and/or Derivative Works thereof in binary form only.
2.4 Enhancements means changes, additions or new releases, other than
Maintenance Modifications, to the Tools that improve functions,
add new functions, or improve performance by changes to system
design.
2.5 Maintenance Modifications means any modification or revision to
the Tools (other than an Enhancement) that corrects an error or
provides other incidental corrections.
2.6 Qualifying Developer Products means a Developer Product that
meets Novell's then current certification and testing policies
set forth in the programs and agreements of Novell Labs which are
independent of this Agreement and require the payment of program
fees in addition to any fees or other consideration provided by
Developer hereunder.
2.7 Tools means the documentation and/or programs provided by Novell
more fully set forth in a Supplement. Tools in program form are
referred to as "Program Tools". Tools in documentation form are
referred to as "Documentation Tools". Program Tools may include
source code or binary code.
2.8 Support Calls means telephone assistance provided by Novell
technical support personnel to Developer regarding questions and
clarifications on the use of Documentation Tools and Program
Tools.
2.9 Yes Logo means the Novell approved Yes Logo licensed to Developer
under the separate Novell Labs Agreement upon meeting the
requirements set forth in the Certification Testing section of
the Agreement and the Novell Labs Agreement and any applicable
Exhibits to the Novell Labs Agreement. Usage of the Yes Logo is
subject to the terms of the Novell Labs Agreement and this
Agreement.
3 Licenses.
3.1 Development License. Subject to the terms and conditions of this
Agreement, Novell hereby grants, and Developer hereby accepts,
the following world-wide, non- transferable license to use,
modify, merge, and to create derivative works from the
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Tools solely to create Developer Products. THE LICENSE GRANTS FOR
CERTAIN TOOLS MAY BE NARROWER IN SCOPE; ANY SUCH RESTRICTIONS
SHALL BE SET FORTH IN THE RELEVANT SUPPLEMENT.
3.2 Distribution License. Distribution license terms are set forth in
Supplements or a Distribution License Exhibit to a Supplement.
3.3 Copies.
3.3.1 Development Copies. Developer may make up to four copies
of the Tools for internal. The copies may be used solely
in support of the development being performed with the
original copy of Tools provided hereunder.
3.3.2 Beta Copies. Developer may make and distribute up to 25
copies of its Developer Products for evaluation or Beta
testing purposes.
3.4 Third Party Contractor. In the event Developer employs a third
party contractor ("Contractor") to develop Developer Products,
Developer agrees to provide Novell with the identity of any
proposed Contractor at least 15 business days prior to
Developer's providing any Novell Confidential Information to
Contractor for Novell's written approval of the Contractor.
After approval has been granted by Novell for a Contractor,
Developer must provide Novell with written confirmation that
Contractor has executed an agreement with Developer containing
the terms and conditions set forth below:
3.4.1 Subject to the terms and conditions of this Agreement set
forth below and Novell's prior approval, Developer may
grant to Contractor a sublicense to the Tools solely for
the purposes specified in this Section 3. Tools shall
continue to be subject to the terms and conditions of this
Agreement and Supplements. Contractor is not authorized
by Novell to make any additional copies of Tools over and
above the number which
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Developer is permitted to make pursuant to
Paragraph 3.3.1.
3.4.2 Contractor's license to the Tools may only be granted as
part of a binary code sublicense of Developer's
proprietary software to Contractor.
3.4.3 Developer shall provide Novell with the name of its
Contractor, address, contact person and the physical
location of each copy of the Tools and any Derivative
Works thereof.
3.4.4 Contractor shall be subject to confidentiality provisions
at least as stringent as those specified in the Agreement
with respect to the Tools.
3.4.5 Novell shall not be liable to Contractor and Developer
agrees to indemnify Novell from and against any claim by
Contractor arising out of Developer's agreement with
Contractor regarding the Tools.
3.5 Ownership. Developer acknowledges that the licenses contained in
the Agreement confer no rights of ownership in the Tools and
acknowledges Novell's representation that the Tools are
proprietary to Novell. Novell is not transferring to Developer
title or ownership of all or any portion of the Tools or
Derivative Works of the Tools. Except as expressly provided, this
Agreement does not grant and will not be interpreted as granting
any right, license, title, ownership or interest in or under any
Novell patent, copyright, trademark or trade secret, whether by
implication, estoppel or otherwise. Novell will continue to own
all right, title, and interest to all patents, copyrights, trade
secrets, and other proprietary rights in and to the Tools.
Developer will not take any action which would compromise
Novell's rights to the Tools.
4 Inventions & Patents. In the event that any Tools incorporate technology
in which Novell seeks or holds patent or invention protection or any
other similar form of legal protection, Novell grants to Developer a
non-exclusive, non-transferable license to practice the patent or
invention solely for use with the Qualifying Developer Products and only
to the extent necessary to exercise the license
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granted under copyright in the Tools.
5 Labeling. Developer shall not remove any copyright notices, patent
notices or proprietary legends contained within the Tools and shall
include the copyright and proprietary notices identified below on the
label of each diskette, tape, or other distribution medium (except upon
read only memory devices, in which case the manual accompanying a
Qualifying Developer Product shall contain the notice) containing in
whole or in part Tools:
'c' Copyright 19xx, Novell, Inc., All Rights Reserved.
"xx" should be replaced with the necessary digits to identify the
last date of publication contained in the copyright notice of the
Qualifying Deve
loper Product.
Novell may require Developer to include additional notices, such as
patent pending or registration notices, upon written notice to
Developer. Developer may include an additional copyright notice
reflecting the copyright ownership of its portion of Developer Products.
6 Confidentiality. Developer agrees to hold Tools, and the terms and
conditions of this Agreement in confidence for Novell. Developer further
agrees that it shall not make any disclosure of any part of such Tools
(including methods or concepts utilized therein) to anyone, except in
accordance with the Agreement. Developer's obligation of confidence
shall not extend to any information which (i) is already known to
Developer prior to execution of this Agreement and Supplements unless
such information resulted from efforts to reverse engineer a Novell
product, (ii) becomes a publicly known without fault of the Developer,
or (iii) is independently developed by Developer without reverse
engineering any Novell product and without access to any Novell
confidential information. The foregoing notwithstanding, Developer may,
without breaching the Agreement, disclose the terms and conditions of
the Agreement, and the Tools pursuant to a written court order, provided
Developer gives Novell reasonable notice and opportunity to obtain
protective orders or the like.
7 Limitations and Residual Rights. De veloper agrees that it will not use
the Tools except as authorized in the Agreement. Developer further
warrants and represents that the products which it identifies in
Supplements to the Agreement comply with the requirements of the
Agreement. Developer hereby agrees that any work created in breach of
the restrictions of the Agreement be deemed to be the sole and exclusive
property of Novell. No title to or ownership of the Tools or any of its
parts is transferred to Developer. Title to all applicable rights and
patents,
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copyrights and trade secrets in the Tools not granted by this
Agreement are retained by Novell.
8 Support & Compatibility. Developer agrees to comply with the following
provisions governing compatibility and interoperability of Qualifying
Developer Products with the corresponding versions of Novell products.
8.1 Developer Products Documentation. Developer agrees to include a
conspicuous statement in the end user documentation for
Qualifying Developer Products identifying Developer or those who
market products on Developer's behalf as the sole support contact
for Qualifying Developer Products. Developer agrees to
incorporate a description identifying the versions of the Novell
products that are compatible with the Qualifying Developer
Products by product name, version number and release level in
Qualifying Developer Product information or documentation. Upon
request, Developer agrees to provide Novell with evidence of
compliance with this Section 9.1.
8.2 Quality Control. In the event that Novell determines that
Developer is no longer meeting accepted levels of quality, Novell
agrees to so advise Developer and to provide Developer with
reasonable guidance and a commercially reasonable time of no less
than ninety (90) days to meet the above-referenced standards.
8.3 End User Support. Developer shall be solely responsible for all
end user support of the Qualifying Developer Products.
9 Consideration.
9.1 Fees. Developer shall pay to Novell the non-refundable license
fees ("License Fees") set forth in the applicable Supplements.
All fees shall be paid to Novell on or before shipment of the
Tools unless Developer has established credit with Novell.
9.2 Form of Payments. All payments required under the Agreement
shall be in U.S. dollars, and shall be exclusive of any federal,
state, municipal or other government taxes, duties, excises or
tariffs now or hereinafter imposed on the production storage,
sale, transportation, import or export, or use of the Tools. Any
taxes, duties, excises, tariffs, fees, or levies imposed on the
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fees paid hereunder or against the Agreement except for taxes or
fees based on Novell's net income, shall be the responsibility
of Developer, and if paid or incurred by Novell, may be offset,
at Novell's option, against any payments due to Developer, or
shall otherwise be promptly reimbursed to Novell by Developer
upon receipt of an invoice from Novell.
10 Developer Products Review. Upon written request, Developer agrees to
demonstrate the Developer Products to Novell at Developer's facilities.
Developer shall have materially breached the Agreement, if Novell finds
upon monitoring compliance under this Section, that any Developer
Product exceeds the scope of the Agreement.
11 Disclaimer of Warranty. Novell licenses the Tools to Developer on a "AS
IS" basis. Novell MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED,
REGARDING THE TOOLS, THE MERCHANTABILITY OR FITNESS OF THE TOOLS FOR ANY
PARTICULAR PURPOSE. Without limiting the foregoing, in no event shall
Novell be liable for incidental or consequential damages resulting from
the use of the Tools, or the sale or distribution of Developer Products,
whether under theory of warranty, tort, or products liability except
for indemnification for infringement as and to the extent provided in
Section 15.
12 Indemnification by Developer. Developer will indemnify, defend and hold
Novell harmless from any and all damages, liabilities, costs and
expenses incurred by Novell as a result of any claims, judgments or
adjudications against Novell by any third party resulting from
Developer's breach of this Agreement or from Developer's distribution of
any part of the Tools in combination with programs not supplied by
Novell if such claims, judgments, or adjudication would not have arisen
but for Developer's combination. If Novell receives notice of a claim
based upon Developer's breach or Developer's combination of the Tools
with programs not supplied by Novell, Novell will promptly notify
Developer in writing of the claim and will permit Developer to have the
sole control of the defense of any claim or action and all negotiations
for its settlement and compromise, provided Developer can provide
adequate assurances to Novell that Developer will diligently pursue
resolution of the claim.
13 Indemnification by Novell. Novell shall defend any and all claims made
against Developer based on a claim that the Tools infringe, allegedly or
in fact, any U.S. copyright or U.S. patent of any third party, if Novell
is notified
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promptly in writing and is given reasonable information,
assistance and the sole authority to defend or settle such claims at
Novell's expense. Novell agrees to pay all damages and costs finally
awarded against Developer.
In the event that any of the Tools is held to infringe and use of such
enjoined or the case is settled, as referred to above, Novell shall have
the option, at its expenses, to procure for Developer the right to
continue using the Tools to replace or modify such so that they become
non-infringing materials which have the same or additional
functionality, or to pay or refund to Developer the consideration paid
for use of them upon return of the Tools. In no event shall Novell's
aggregate liability to Developer for any damages under this provision
exceed the greater of the aggregate amount that Licensee has paid to
Novell under this Agreement or $100,000.
Novell will have no liability under any provisions of this Section if
any in fringement claim is based upon the use of the Tools in connection
or in combination with equipment, devices, or software not supplied by
Novell or used in a manner for which the Tools were not designed if such
infringement would not have arisen except for such connection or
combination or based upon an earlier version of the Tools, provided the
later version avoids the claim of infringement.
THE ABOVE STATES NOVELL'S ENTIRE LIABILITY WITH RESPECT TO INFRINGEMENT
OF PATENTS, COPYRIGHTS, TRADE MARKS, OR ANY OTHER FORM OF INTELLECTUAL
PROPERTY BY ANY PRODUCTS OR TECHNOLOGY SUPPLIED BY NOVELL.
14 Term & Termination.
14.1 Effective Date; Term. The effective date of this Agreement shall
be the date of Novell's execution hereof. The term of this
Agreement shall be for a period of two (2) years and shall
automatically renew for periods of one year unless terminated by
either party subject to the terms in this Section. The foregoing
shall not affect Novell's right to terminate the Agreement sooner
for cause as provided in this Section.
14.2 Stated Term of Supplements. Each Supplement, unless otherwise
specifically stated in the Supplement, shall be deemed to have a
term of two (2) years from the date the Supplement is executed
by the parties. Unless otherwise specifically stated in the
Supplement, after the initial two (2) year term, the Supplement
shall automatically renew for
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additional one (1) year periods unless either party provides the
other with written notice one hundred eighty (180) days or more
before the end of any term.
14.3 Novell may terminate the Contract Documents upon material breach
of the Contract Documents or any event of default by Developer.
Any breach of the Contract Documents which by its nature is
subject to cure and continues after thirty (30) days written
notice from Novell, Novell may terminate the Contract Documents
by giving written notice to Developer.
14.4 Developer shall automatically be in default if Developer:
14.4.1 is dissolved, is involved in a reorganization, or attempts
to assign this Agreement or any of its rights under this
Agreement; or,
14.4.2 is not paying its debts as the debts become due, becomes
insolvent, files or has filed against it a petition under
any Bankruptcy Law, proposes any dissolution, liquidation,
composition, financial reorganization or recapitalization
with creditors, makes an assignment or trust mortgage for
the benefit of creditors, or if a receiver trustee,
custodian or similar agent is appointed or takes
possession of any property or business.
14.5 Upon written notice by Novell after any termination of the
Contract Documents, Deve loper shall cease use of the Tools and
promptly return to Novell all existing copies of the Tools and
all Confidential Information received by De veloper from Novell
under the Contract Documents.
14.6 Upon termination of the Contract Documents, end- users of the
Qualifying Developer Products properly in possession of such and
not in violation of applicable copyright laws, may continue to
use such Qualifying Developer Products in accor dance with
applicable copyright laws. Upon termi nation of the Contract
Documents all rights asso ciated with the Tools, and rights to
develop and distribute Qualifying Developer
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Products shall immediately cease.
14.7 Either party may terminate the Contract Documents at any time
without cause by giving 180 calendar days' prior written notice
to the other party.
14.8 The rights of Novell under this Section are in addition to any
other rights and remedies provided by law.
15 Limitation of Liability. THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE OF
ALL OTHER REMEDIES THAT MAY BE AVAILABLE AT LAW OR IN EQUITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED
IN CONNECTION WITH THIS AGREEMENT AND THE PRODUCTS THAT ARE SUBJECT TO
THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH
DAMAGES ARE FORESEEABLE. NOVELL'S LIABILITY FOR DIRECT DAMAGES TO
DEVELOPER FOR ANY CAUSE WHATSOEVER, EXCEPT AS OTHERWISE STATED IN THIS
SECTION, AND REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE SUM
OF $100,000. THIS LIMITATION DOES NOT APPLY TO DIRECT DAMAGES OR TO
CLAIMS BY EITHER PARTY FOR PERSONAL INJURY OR DAMAGE TO REAL PROPERTY OR
TANGIBLE PERSONAL PROPERTY CAUSED BY NEGLIGENCE.
16 Remedy for Breach. Developer acknowledges that monetary damages may not
be a sufficient remedy for unauthorized partial or full disclosure of
Confidential Information or other breaches under this Agreement and that
Novell will be entitled, in addition to monetary damages and without
waiving any other rights or remedies, to injunctive or equitable relief
as may be determined proper by a court of competent jurisdiction.
17 No Offer for Sale. Absent a signature of an authorized representative of
Novell, the Contract Documents are not an offer to license any materials
to Developer either under the terms and conditions of the Contract
Documents or under any terms and conditions.
18 General Provisions.
18.1 Force Majeure. If either party shall be prevented from
performing any portion of this Agreement by causes beyond its
control, including labor disputes, civil commotion, ware,
governmental regulations or controls,
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casualty, inability to obtain materials or services, or acts of
God, such defaulting party shall be excused from performance for
the period of the delay and for a reasonable time thereafter.
18.2 Jurisdiction & Venue. This Agreement shall in all respects be
governed by and construed in accordance with the laws of the
State of Utah, excluding those laws governing conflicts of law.
In addition, the parties agree that any action relating to, or
arising under this Agreement shall be instituted and prosecuted
exclusively in the courts of competent jurisdiction of the State
of Utah.
18.3 Survival of Terms. The provisions of this Agreement which by
their nature extend beyond termination of this Agreement will
survive and remain in effect until all obligations are satisfied,
including without limitation Section 6 of this Agreement.
18.4 Waiver. No waiver of any right or remedy on one occasion by
either party shall be deemed a waiver of such right or remedy on
any other occasion.
18.5 Superior Agreement. This Agreement, Supplements and Exhibits
referenced herein, sets forth the entire agreement and
understanding between the parties as to the subject matter and
merges all prior discussions. Neither of the parties shall be
bound by any conditions, definitions, warranties, understandings
or representations with respect to the subject matter other than
as expressly provided under this Agreement. This Agreement may
not be modified by usage of trade, course of dealing or other
similar principles. This Agreement is subject to amendment or
modification only by a writing duly signed by authorized
representatives of both parties.
18.6 Assignment. This Agreement is not assignable by Developer, in
whole or in part, without Novell's prior written consent.
Notwithstanding, Novell shall not unreasonably withhold consent
to an assignment to a parent, subsidiary or affiliate. Any
attempted assignment without Novell's written consent shall be
null and void.
18.7 Notice. Unless otherwise agreed to by the parties, all notices
required under this Agreement shall be deemed effective when
received and made in writing by either (i) registered mail, (ii)
certified mail, return receipt requested,
-11-
NOVELL CONFIDENTIAL - EXECUTION ORIGINAL
- -------------------------------------------------------------------------------
or (iii) overnight mail, addressed and sent to the address
above indicated and to the attention of the party executing this
Agreement or that person's successor.
18.8 Singular, Plural and Gender. When used in this Agreement the
singular includes the plural, the plural includes the singular
and gender related pronouns include the feminine, masculine and
neuter.
18.9 Severability. If any provision of this Agreement is held invalid,
illegal, or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby, and shall be interpreted, to the
extent possible, to achieve the purposes as originally expressed
with the invalid, illegal or unenforceable provision.
18.10 Independent Contractors. Developer acknowledges that both
parties to this Agreement are independent contractors and that
Developer will not represent itself as an agent or legal
representative of Novell.
18.11 Compliance with Laws. Developer agrees to comply, at Developer's
own expense, with all statutes, regulations, rules, ordinances,
and orders of any governmental body, department or agency which
apply to or result from Developer's obligations under this
Agreement. Developer agrees not to export Qualifying Developer
Products directly or indirectly, separately or as part of a
system, without first obtaining proper authority to do so from
the appropriate governmental agencies or entities, as may be
required by law.
18.12 Headings. The headings provided in this Agreement are for
convenience only and shall not be used in interpretation or
construction.
18.13 Compliance with Laws. Regardless of any disclosure made by
Developer to Novell of an ultimate destination of the Tools or
Qualifying Developer Products, Developer will not export or
transfer, whether directly or indirectly, the Tools or Qualifying
Developer Products, or any portion thereof, or any system
containing such Tools or Qualifying Developer Products or portion
thereof, to anyone outside the United States without first
complying strictly and fully with all export controls that may be
imposed on the Tools or Qualifying Developer
-12-
NOVELL CONFIDENTIAL - EXECUTION ORIGINAL
- -------------------------------------------------------------------------------
Products by the United States Government or any country or
organization of nations within whose jurisdiction Developer
operates or does business. In particular, Developer assures
Novell that, absent any required prior authorization from the
Office of Export Licensing, U.S. Department of Commerce, 14th and
Constitution Avenue, Washington DC 20230, Developer will not
export or reexport (as defined in Section 779 of the Export
Administration Regulations, as amended ("Regulations")) the
Tools or Qualifying Developer Products or any technical data or
other confidential information, or direct product of any of the
foregoing to Haiti, Iran, Iraq, Syria, the People's Republic of
China, Yugoslavia, or to any country in Country Groups Q, S, W,
Y, or Z as defined in the supplement No. 1 to Section 770 of the
Regulations, or such other countries as come under restriction by
action of the United States Government, or to nationals from or
residing in the foregoing countries, without first obtaining
permission from the appropriate United States Government
authorities. The countries subject to restriction by action of
the United States Government are subject to change, and it is
Developer's responsibility to comply with the United States
Government requirements as they may be amended from time to time.
18.14 Cumulative Remedies. The remedies under this Agreement will be
cumulative and not alternative and the election of one remedy for
breach will not preclude pursuit of other remedies.
18.15 Attorneys' Fees. If any dispute arises between the parties with
respect to the matters covered by this Agreement which leads to a
proceeding to resolve the dispute, the prevailing party in the
proceeding will be entitled to receive its reasonable attorneys'
fees, expert witness fees, and out-of-pocket costs incurred in
connection with the proceeding, in addition to any other relief
it may be awarded.
18.16 Publicity. This Agreement is confidential and Developer will not
issue press releases or engage in other types of publicity of any
nature dealing with commercial and legal details of this
Agreement or its subject matter without Novell's prior written
approval, which will not be unreasonable withheld.
-13-
NOVELL CONFIDENTIAL - EXECUTION ORIGINAL
- -------------------------------------------------------------------------------
19 Signatures.
NOVELL, INC.
Signature:_____________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
DEVELOPER:_____________________________
Signature:_____________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
-14-
NOVELL, INC.
NEST SDK Developer Product Distribution License Exhibit
- -------------------------------------------------------------------------------
This NEST SDK Developer Product Distribution License Exhibit (the "Exhibit") to
the NEST SDK 1.x Supplement (the "Supplement") and the Novell Embedded Systems
Technology Master Agreement (the "Agreement") is entered into by Novell and
Developer. This Exhibit is effective as of November 6, 1995 ("Distribution
License Effective Date").
1 INTRODUCTION. The purpose of this Exhibit is to allow Developer, subject
to the restrictions contained in this Exhibit and the Agreement, to
sublicense, duplicate, and distribute Qualifying Developer Products
developed under the Agreement between Novell and Developer. All terms
and conditions of the Agreement are incorporated herein by reference and
shall have full force and effect between the parties in the
interpretation of this Exhibit.
2 DEFINITIONS. Capitalized terms in this Exhibit have the meanings stated
below or defined in the Agreement.
2.1 "Software" means binary code and Program Tools or binary code
produced from Program Tools that are linked or included in
Developer Product pursuant to the Supplement and is subject to
all terms and conditions of that Supplement.
2.2 "Sublicense" means an executed agreement or shrink-wrap agreement
or electronic license that an end user consents to by performing
a physical act (e.g., pushing a button on a keyboard) before
utilizing the Qualifying Developer Product which at minimum
provides the following or equivalent protection to Novell:
2.2.1 restricts the number of copies of the Software to one
operating copy per Qualifying Developer Product;
2.2.2 permits only those number of copies of the Software as
are essential to back up or archival use of the Software;
2.2.3 states that no title to the intellectual property
contained in the Software is transferred to the
sublicensee and it is retained by Novell;
2.2.4 represents that the human readable code of the Software
(source code) is not sublicensed to the sublicensee;
2.2.5 restricts sublicensees from de-compiling and reverse
assembling the software to discover the source code; and
2.2.6 prohibits time-sharing, lease, rental, distribution,
transfer, sublicense, and unauthorized use of the
software, without prior written consent.
3 LICENSES AND RESTRICTIONS.
3.1 Distribution License. Subject to the terms and conditions of this
Exhibit and the Agreement, Novell grants to Developer, and
Developer accepts, a non-exclusive, non-transferable, world-wide
license to reproduce and distribute (directly or indirectly) the
Qualifying Developer Products, being the Developer Products
identified below that are found to meet the Qualifying Developer
Product
requirements, but only under a Sublicense between Developer and
its end users or, in the case of distribution through Developer's
OEM customer, Developer must obtain binding contractual
assurances that Developer's OEM customers will only distribute
the Qualifying Developer Products under a Sublicense between
Developer's OEM customer and its end users.
Developer Product Title:________________________________
NEST Components Licensed:_______________________________
Developer Product Title:________________________________
NEST Components Licensed:_______________________________
Developer Product Title:________________________________
NEST Components Licensed:_______________________________
Product names identified in this Section are solely to assist
Novell in program administration, but not for trademark licensing
purposes. Novell reserves the right to take action in the event
any Developer Product name violates Novell rights.
4 CONSIDERATION. In exchange for the rights granted by Novell to Developer
under this Exhibit, Developer agrees to pay Novell a per copy royalty
per the number of copies of the Qualifying Developer Products it
transfers, sells, sublicenses or authorizes for use. A non-refundable
royalty payment ("Non-refundable Royalty Payment") is set forth in the
Royalty Schedule section below. Notwithstanding the foregoing, Developer
will report all such royalties due to Novell on a monthly basis using
calendar quarters.
4.1 Monthly Royalty. In addition, Developer shall pay to Novell a
royalty based upon the number of copies of each Qualifying
Developer Product transferred, sold or licensed by Developer.
Royalties shall accrue upon transfer, sale or license of
Qualifying Developer Products by Developer and shall be paid to
Novell no later than forty-five (45) days after the end of each
month.
4.2 Minimum Royalty. Developer shall pay to Novell a guaranteed
annual minimum royalty of 30 Thousand Dollars for the Qualifying
Developer Product that includes the NEST Client Requester and/or
NetWare IPX/SPX Modules. In addition, should Qualifying Developer
Products also include the Nprinter modules, Developer shall pay
to Novell a guaranteed annual minimum royalty of 60 Thousand
Dollars.
4.3 Audit. Developer shall maintain complete and accurate accounting
records, in accordance with generally accepted accounting
practices, to support and document royalty amounts due under this
Exhibit and shall retain such records for three (3) years after
payment is made. Developer shall, upon written request of Novell,
provide audit access to such records to Novell. If Developer so
decides, a mutually
-2-
acceptable independent accounting firm may conduct the audit at
Developer's expense. Such access shall be granted only during
normal business hours and no more frequently than once in each
calendar year. All information received during the audit shall be
held in confidence by the parties.
4.4 Royalty Schedule
Item Base Price Discount Schedule
Units Percentage
IPX / SPX $2.00 5,000 100%
NEST Requester $4.00 10,000 90%
PServer / NPrinter $6.00 25000 85%
50000 80%
100000 70%
250000 60%
500000 55%
1000000 45%
5000000 35%
10000000 25%
5 DEVELOPER'S DUTIES.
5.1 Qualifying Developer Products. Qualifying Developer Products may
only be sublicensed and distributed according to the terms and
conditions of this Exhibit.
5.2 Operating System Companies. Notwithstanding any other
provision(s) of this Agreement, Developer agrees that it may not
authorize the distribution of all or any portion of the
Qualifying Developer Products through companies that design,
develop, or market computer operating systems without the prior
written consent of an authorized Novell representative.
5.3 Protection. Developer agrees to take all reasonable steps to
protect the Program Tools and related Documentation Tools from
unauthorized copying or use. The source code of the Program Tools
provided in binary form represents and embodies trade secrets of
Novell which are not licensed to Developer. Developer agrees not
to reverse assemble or reverse compile this binary code to
discovery the source code.
5.4 Documentation. Developer agrees to include a conspicuous
statement in its
-3-
documentation identifying Developer as the primary support
contact for the Qualifying Developer Products distributed by
Developer. Upon request, Developer agrees to provide Novell with
three copies of its then current documentation.
5.5 End-user support. Developer agrees to provide all technical
support for all aspects of the Qualifying Developer Product.
5.6 Yes Logo. Developer agrees to prominently display the Yes Logo on
Qualifying Developer Product, and all marketing materials,
product packaging, and advertising material related to Qualifying
Developer Product; to emphasize the Yes Logo in at least one
Qualifying Developer Product advertisement, Qualifying Developer
Product line advertisement, or corporate positioning
advertisement in an appropriate national publication; and provide
appropriate product and program descriptions in all materials
bearing the Yes Logo.
6 TERM AND TERMINATION.
6.1 Term. The term of this Exhibit shall be one year from the
Distribution License Effective Date of and shall automatically
renew for successive one year periods unless either party
provides thirty (30) days or more prior written notice of its
intent to terminate this Exhibit.
6.2 Termination for Convenience. Either party may terminate this
Exhibit and the licenses granted by Novell under the Licenses and
Restrictions Section of this Exhibit at any time without cause by
giving 180 calendar days' prior written notice to the other
party. In the case that Novell exercises it right to terminate
for convenience, Developer may distribute Qualifying Developer
Product then in inventory for which Developer has already paid
royalties.
7 SIGNATURES.
Novell, Inc. [Developer] DIGITAL PRODUCTS INC.
Signature:_________________________ Signature:____________________________
Name:______________________________ Name:_________________________________
Title:_____________________________ Title:________________________________
Date:______________________________ Date:_________________________________
-4-
Company Confidential Execution Original: November 16, 1995
- -------------------------------------------------------------------------------
ADDENDUM TO:
NEST SDK Developer Product Distribution License Exhibit
This ADDENDUM amends and supplements the NEST SDK Developer Product Distribution
License Exhibit dated November ___, 1995 ("AGREEMENT") between Novell, Inc., a
Delaware corporation having a principal place of business at 1555 North
Technology Way, Orem, Utah 84057 ("NOVELL") and Digital Products, Inc., a
Massachusetts corporation haying a principal place of business at 411 Waverly
Oaks Rd., Waltham, MA 02154 ("Developer").
1. AGREEMENT. The AGREEMENT shall remain in full force and effect, except
that it shall be modified as set forth in this ADDENDUM. Any
capitalized terms which are not defined in this ADDENDUM shall have the
meaning set forth in the AGREEMENT. Should a conflict arise between
this ADDENDUM and the AGREEMENT, the provisions of this ADDENDUM shall
control.
2. MODIFICATIONS. The parties hereby agree that the AGREEMENT shall be and
hereby is modified as follows:
a. The opening paragraph of the Exhibit shall be modified as
follows:
"This NEST SDK Developer Product Distribution License
Exhibit (the "Exhibit") to the NEST SDK 1.x
Supplement (the "Supplement")..."
shall read
"This NEST SDK Developer Product Distribution
License Exhibit (the "Exhibit") to the NEST SDK
Technology Provider Supplement (the
"Supplement")..."
b. Section 3.1 of the shall be modified as follows:
"Developer Product Title:__________________________
NEST Components Licensed:_________________________"
shall read
"Developer Product Title: NETPrint, JETXPrint
NEST Components Licensed: NEST Requester___________"
- -------------------------------------------------------------------------------
NEST Agreements Addendum
DPI_DIST.ADD Novell, Inc.
Company Confidential Execution Original: November 16, 1995
- -------------------------------------------------------------------------------
3. CONTINUANCE OF AGREEMENT. Except as expressly amended and supplemented
by this ADDENDUM, all the terms and conditions of the AGREEMENT shall
remain in full force and effect. This ADDENDUM together with the
AGREEMENT, set forth the entire agreement and understanding between the
parties pertaining to the subject matter and merge all prior
discussions between them. Neither of the parties shall be bound by any
conditions, definitions, warranties, understandings or representations
with respect to the subject matter other than as expressly provided in
this ADDENDUM and the AGREEMENT.
NOVELL, INC. COMPANY
Signature:_____________________________ Signature:________________________
Name:__________________________________ Name:_____________________________
Title:_________________________________ Title:____________________________
Date:__________________________________ Date:_____________________________
- -------------------------------------------------------------------------------
NEST Agreements Addendum
DPI_DIST.ADD Novell, Inc.
-2-
Company Confidential Execution Original: November 16, 1995
- -------------------------------------------------------------------------------
EXHIBIT Z
Operating System Companies
IBM Digital Equipment Corp.
Apple Computer Adobe Systems
NEC Technologies Brother
Olivetti Kyocera
Texas Instruments Casio
Genicom Wang
Unisys Silicon Graphics
Compaq Computer Ricoh
Gateway 2000 Epson
Panasonic Seiko
Sun and SunPics Xerox
AT&T Hewlett-Packard
Citizen Pentax
Nortel (Northern Telecom) Konica
Siemens Mitsubishi
Toshiba Matsushita
Canon Olympus
Bull Oki
Tandem
- -------------------------------------------------------------------------------
NEST Agreements Addendum
DPI_DIST.ADD Novell, Inc.
-3-
Amendment No. I
The Novell Embedded Systems Technology (NEST) Master Agreement, NEST SDK
Technology Provider, Supplement, NEST SDK Developer Product Distribution License
Exhibit and Special Addendum, each effective 1 December 1995, as amended by
Addendum to NEST SDK Developer Product Distribution License Exhibit, effective
15 April 1996, and Letter, dated 6 December 1996, (collectively, the
"Agreement") by and between Novell, Inc. ("Novell") and Digital Products Inc.
("Developer") is hereby further amended as set forth below. This Amendment No. I
is effective when executed by an authorized Novell signatory ("Effective Date").
WHEREAS, Developer has been acquired by and merged into Osicom Corporation;
WHEREAS, the parties wish to change the discount achievement under the
Agreement; and
NOW THEREFORE, IT IS AGREED:
1. With the execution of this Amendment by each of the parties, all
reference to Digital Products Inc. in the Agreement executed prior
hereto by and between Novell and Developer are hereby changed to Osicom
Corporation (DPI Print Server Division).
2. Notwithstanding anything in the Agreement to the contrary, the Royalty
Schedule specified in Paragraph 4.4 of the NEST SDK Developer Product
Distribution License Exhibit is hereby changed as follows.
i. On or before 1 May 1998 and each year during the remaining
term of the Agreement, Developer shall complete and submit to
Novell a copy of the NEST Unit Forecast Chart (NEST UFC)
attached hereto as Attachment A which is incorporated into and
made a part of the Agreement by this reference. Such yearly
NEST UFC resets at the beginning of the year the number of
units distributed to zero.
(a). The parties agree Developer shall pay a per unit
royalty of $2.40 for each Qualifying Developer
Product it distributes during the period 1 July 1997
through 30 April 1998.
ii. Based upon the estimated number of units to be shipped as
indicated on the NEST UFC, Developer shall submit its royalty
payment to Novell at the applicable discount determined by the
Royalty Schedule in Paragraph 4.4.
(a). During the term of the Agreement, in the event
Developer exceeds an established discount level by
distributing in excess of the required number of
units, Novell grants Developer the right to apply the
new discount to subsequent units distributed. Such
new discount shall not be retroactively applied to
units distributed prior to exceeding the established
discount level.
iii. Novell shall monitor the number of units shipped by Developer
and if after two quarters Developer's actual number of units
shipped do not equal the estimated number of units submitted
on the NEST UFC, Developer shall adjust its royalty payment to
Novell using the applicable discount.
iv. Novell and Developer shall make a final adjustment at the end
of April based upon Developer's actual number of units shipped
and the royalty payment made to Novell.
(1) If Developer has under paid Novell,
Developer agrees to submit payment to Novell
in accordance with the terms of the
Agreement; or
(2) If Developer has over paid Novell, Novell
shall credit Developer's account and such
credit shall be applied to subsequent units
shipped by Developer in the immediately
forthcoming year.
3. Term. This Amendment shall be coterminous with the Agreement.
4. Signature. This Amendment may be signed in counterparts.
EXCEPT AS SPECIFICALLY PROVIDED FOR IN THIS AMENDMENT NO. I, THE TERMS
AND CONDITIONS OF THE AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.
NOVELL, INC. OSICOM CORPORATION
(DPI PRINT SERVER DIVISION)
Signature:__________________________ Signature:________________________
Authorized Signature Authorized Signature
Name:_______________________________ Name:_____________________________
Print or Type Print or Type
Title:______________________________ Title:____________________________
Date:_______________________________ Date:_____________________________
ATTACHMENT A
NEST Unit Forecast Chart
Year Quarter Forecast Total Units
Date:________________ Quarter 1
Quarter 2
Quarter 3
Quarter 4
Totals
Next year
renewal
date:_________________
This chart to be sent facsimile to the attention of Accounts Payable,
Mr. Jerry Xia, at 408-577-5553.
Quarterly Unit Forecasts
Novell Royalty Units
Calendar Year 1998
Year 1998 Quarter Forecast Total Units
Date 4/30/98 Quarter 1 14,200
Quarter 2 17,000
Quarter 3 18,500
Quarter 4 26,000
---------
Totals 75,700
Next Year Renewal Date 4/30/99
Confidential - Execution Original
- -------------------------------------------------------------------------------
NOVELL, INC.
NEST SDK Technology Provider Supplement
- -------------------------------------------------------------------------------
1 Purpose. This Supplement is issued under the Novell Embedded Systems
Technology Master Agreement ("Agreement"). Under this Supplement
Novell authorizes Developer to create Qualifying Developer Products and
to distribute the Tools to Developer's customers that enter into the
appropriate agreements with Novell. The Tools in this Supplement are
intellectual property of Novell, and/or its licensors, and their
distribution will be tightly controlled.
2 Definitions. Capitalized terms in this Supplement have the same
meanings stated below or defined in the Agreement:
2.1 Customer means a party that desire to license the Tools
through Developer from Novell.
2.2 Customer Agreements means the agreements that Customer must
sign before Developer can provide Tools to Customer. The
Customer Agreements include the Novell Embedded Systems
Technology Master License Agreement and the NEST SDK
v1.xSupplement. Related agreements include the NEST Developer
Product Distribution Exhibit (the "Distribution Exhibit").
Customer is not required to execute the Distribution Exhibit
before receipt of the Tools, but Customer must enter into a
Distribution Exhibit with Novell before Customer will be
authorized to distribute or sell any Customer Products
developed from the Tools.
2.3 Customer Product means the Qualifying Developer Products
defined in the Customer Agreements.
2.4 Developer Toolkit means a development kit of the Developer
that in addition to containing Developer source code, binary
code, and documentation, also includes the Tools or Derivative
Works, in source and/or binary form. Developer Toolkits may
only be provided to Licensed Customers.
2.5 Licensed Customer means a Customer that has entered into the
Customer Agreements with Novell and has purchased the Tools
from Developer.
2.6 License Fee Addendum means a form addendum to Customer
Agreement, attached to this Supplement, which Developer may
provide to Customer in
Confidential - Execution Original
- -------------------------------------------------------------------------------
order to enable Developer to receive payment for Tools it
provides to Licensed Customer. The License Fee Addendum also
provides Developer with the means to negotiate its own fee for
Tools it provides to Licensed Customers.
2.7 Technology Provider means a Developer that is licensed to sell
and distribute the Tools in accordance with the terms of this
Supplement.
2.8 Toolkit Source means source code of the Tools and source code
of derivative works thereof contained in the Developer
Toolkit.
2.9 Tools. The Tools provided under this Supplement are the
Novell Embedded Systems Technology SDK 1.x, which currently
consists of the following:
2.9.1 Source Code and Documentation:
- -Link Support Layer (LSL)
- -NetWare IPX/SPX
- -Multiple Link Interface Driver (MLID)
- -Configuration Tool
- -Hardware Specific Module (HSM)
- -Client API
- -NEST Client Requester
- -Pserver
- -Service Advertising Protocol (SAP)
- -Nprinter
- -Client Authentication Code:
386funcs.c atbmd5.c atbpub.c
bsafe.c bsafehan.c bsfcont
x.c
bsf_rc2c.c debug.c diffhelm.c
digest.c hwdfuncs.c mac.c
makesecr.c makkey.c m d c . c
myclib.c output.c public.c
ran.c rsa1.c rsa2c.c
secret.c suite.c tdata.c
2.9.2 Documentation Only:
- -Portable Operating System Extension
(POSE)
2.9.3 Binary Code and Documentation:
- -Certification and Test Tools
Novell may change the files that comprise the NEST SDK 1.x from time to time at
its own option without the need to make formal changes to this section.
3 Consideration. Developer agrees to pay Novell upon execution of this
Supplement a non-refundable license fee of $175,000 for five (5) sets
of Tools for internal use or distribution to Licensed Customers.
Additional sets of the Tools may be purchase at the discounted
non-refundable license fee of $35,000 per set of Tools.
4 Program Tools License Restriction. With respect to Novell's Client
Authentication Source Code, Developer's license is limited to compile
and link Novell's Client Authentication Source Code in an unmodified
form in Developer Products. Novell's Client Authentication Code is
more specifically identified in Section 2.9.1 of this
-2-
Confidential - Execution Original
- -------------------------------------------------------------------------------
Supplement. Subject to a Distribution License Exhibit, Developer may be
licensed only to ship code in binary form which is compiled from
Novell's Client Authentication Source Code without modification.
5 Distribution License.
5.1 Developer Product Distribution. No distribution rights for
Developer Products are granted under this Supplement.
Developer Product distribution license terms, including but
not limited to royalties, shall be set forth in a Distribution
License Exhibit which may be entered into by Novell and
Developer.
5.2 Tools Distribution. Novell grants Developer a non-exclusive,
non-transferable license to distribute the Tools, unopened and
undamaged as supplied to Developer by Novell, and/or Developer
Toolkits to Licensed Customers. Developer may not distribute
the Tools or Developer Toolkits to Customers that have not
entered into a Customer Agreement with Novell. Developer
acknowledges that Novell reserves the right to enter into
Customer Agreements with certain Customers at Novell's sole
discretion. Novell also reserves the right to reject modified
Customer Agreements submitted by Customers to Novell for
execution.
6 Developer Products.
Developer Product Title:
----------------
Description:
----------------------------
- ----------------------------------------
Developer Product Title:
----------------
Description:
----------------------------
- ----------------------------------------
7 Developer Toolkits.
Developer Toolkit
Title:
-----------------------------------
Description:
-----------------------------
- -----------------------------------------
Developer Toolkit
Title:
-----------------------------------
Description:
-----------------------------
- -----------------------------------------
8 Developer Support and Training. During the first year of the Term of
this Supplement, Novell agrees to provide to Developer telephone
support for up to eight incidents. One incident shall mean a single
support call or multiple support calls required to resolve a single
Support or Maintenance Modification issue. When the eight incidents
are used or beginning in the second year of the term of this
Supplement, whichever comes first, Developer shall pay a separate fee
for maintenance and support at Novell's
-3-
Confidential - Execution Original
- -------------------------------------------------------------------------------
then current pricing, terms and conditions.
In addition, Novell will provide a two day training course to no more
than two Developer engineers at a Novell facility. Such training will
include instruction on materials provided in the Tools which is
provided to Developer in accordance with this Supplement. All training
will be scheduled by Novell. Novell reserves the right to group
Developer's engineers with other developers' engineers in its training
courses. Training will be offered at least once per calendar quarter.
Each party shall bear its own costs and expenses with respect to
training.
9 Developer Requirements and Duties.
9.1 Developer shall audit and police its Licensed Customers, upon
Novell's reasonable request, to protect Novell's intellectual
property rights and to assist Novell in ensuring timely
and documented royalty payments from Licensed Customers.
9.2 Developer shall provide engineering support and training on
the use of the Tools to its Licensed Customers.
9.3 Developer shall employ one CNE who is qualified in the
relevant field of its Licensed Customer's specialization (eg.
PBX, Printing Services, Automation Control).
9.4 Developer must have two engineers attend Novell training on
the use of the Tools.
9.5 Bundling. Developer agrees not to distribute Developer
Toolkits separately from the Tools, unopened and undamaged as
supplied to Developer by Novell.
9.6 Operating System Companies. Notwithstanding any other
provision(s) of this Supplement, Developer agrees that it may
not distribute Developer Toolkits or the Tools through
companies that design or develop computer operating systems
without the prior written consent of an authorized Novell
representative.
9.7 Protection. Developer agrees to take all reasonable steps to
protect the Tools and related Documentation Tools from
unauthorized copying or use. The Toolkit Source and the source
code of the Tools provided in binary form represents and
embodies trade secrets of Novell which are not licensed to
Developer. Developer shall not reverse engineer, decompile, or
disassemble the Tools. If the Tools are used within a country
of
-4-
Confidential - Execution Original
- -------------------------------------------------------------------------------
the European Community, nothing in this Agreement shall be
construed as restricting any rights available under the EC
Council Directive 14 May 1991 on the legal protection of
computer programs.
9.8 Documentation. Developer agrees to include a conspicuous
statement in its documentation identifying Developer as the
primary support contact for the Tools and Developer Toolkit
distributed by Developer. Upon request, Developer agrees to
provide Novell with three copies of its then current
documentation.
10 Licensed Customer Requirements. Licenses between Developer and Licensed
Customer shall:
10.1 assure that Licensed Customer will not distribute Toolkit
Source or source code to derivative works of Toolkit Source.
10.2 assure that no title to the Toolkit Source or Derivative Works
thereof is transferred to the Licensed Customer. Title and
full ownership rights to the Toolkit Source and its derivative
works will remain Novell's exclusive property, and the
Licensed Customer will not acquire any rights, including but
not limited to any rights in the trademark, trade names,
patents or trade secrets of the Toolkit Source or its
derivative works thereof.
10.3 assure that Licensed Customer distributes object code copies
of the Developer Toolkit derivative works solely in con-
junction with the Qualifying Developer Product under the terms
of the Customer Agreement.
10.4 include an attachment clearly identifying the components of
the Developer Toolkit that are Tools or Toolkit Source, which
includes the following statement:
"THE MATERIALS IDENTIFIED IN THE ATTACHMENT ARE THE INTEL-
LECTUAL PROPERTY OF NOVELL, INC. AND/OR ITS LICENSORS. WHILE
NOVELL HAS AUTHORIZED DEVELOPER TO PROVIDE THOSE MATERIALS
TO CUSTOMER, THEY ARE LICENSED TO CUSTOMER DIRECTLY BY NOVELL
UNDER PRIOR AGREEMENTS, INCLUDING RESTRICTIONS ON CERTAIN
FILES."
-5-
Confidential - Execution Original
- -------------------------------------------------------------------------------
11 Signatures.
NOVELL, INC.
Signature:_____________________________
Name:________________________________
Title:_________________________________
Date:_________________________________
DEVELOPER:____________________________
Signature:_____________________________
Name:________________________________
Title:_________________________________
Date:_________________________________
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Confidential - Execution Original
- -------------------------------------------------------------------------------
ATTACHMENT: FORM ADDENDUM
SPECIAL ADDENDUM FOR TECHNOLOGY PROVIDER CUSTOMERS
Developer and Novell agree that the following terms and conditions amend and
supplement the NEST SDK 1.x Supplement ("the Supplement"):
1 The following definitions shall be added to Section 2 of the
Supplement:
"Technology Provider means a third-party entity, namely
Digital Products Inc. , which Novell has licensed to
distribute and sell the Tools under the terms and conditions
of a certain NEST SDK Technology Provider Supplement entered
into by Novell and the third-party."
2 Section 8 of the Supplement shall be replaced with the following:
"Consideration Developer agrees to pay the Technology Provider
upon execution of this Supplement a non-refundable license
fee, to be negotiated between Developer and Technology
Provider, for the Tools. Maintenance Modifications and
Enhancements to the Tools may require additional license fees.
SIGNATURES.
NOVELL, INC.
Signature:_____________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
Developer: DIGITAL PRODUCTS
_____________________________
Signature:_____________________________
Name:__________________________________
Title:_________________________________
Date:__________________________________
-7-
CONFIDENTIAL - EXECUTION ORIGINAL
- -------------------------------------------------------------------------------
NOVELL, INC.
COMPOSITE SIGNATURE AGREEMENT
Name and Address of Customer:
Digital Products, Inc. telephone: 617-647-1234
411 Waverly Oaks Road facsimile: 617-647-4474
Waltham, MA 02154
Novell Branch Office:
122 East 1700 South telephone: 801-429-7000
Provo, Utah 84606 facsimile:801-453-1267
This Composite Signature Agreement is entered into by and between
Novell Inc. ("Novell") and Digital Products, Inc. ("Developer"), and shall
commence on the date accepted and executed by Novell ("Effective Date").
This Composite Signature Agreement, when signed by Novell and
Developer, shall have the same effect as each of the below identified documents
would have if signed by Developer.
Initials Title of Document
__________ Special Addendum (DPI_DIST.ADD)
__________ NEST SDR Developer Product Distribution License Exhibit (SDKOEM..100)
Each of the identified documents is incorporated by reference. In the
event of a conflict or ambiguity between documents, the specific shall control
the general; the relative order of specificity of the documents is as follows:
(1) Special Addenda, (2) Standard Addenda, and (3) the Standard Agreement.
DEVELOPER ACKNOWLEDGES THAT DEVELOPER HAS READ EACH OF THE DOCUMENTS
DESIGNATED BY THE INITIALS OF DEVELOPER'S AUTHORIZED REPRESENTATIVE, UNDERSTANDS
THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS:
This Agreement, together with all referenced documents, is the
exclusive statement of the entire agreement between Novell and Developer and
supersedes all prior oral and written representations or agreements between the
parties as to the subject matter of the Agreement.
Accepted by:
Novell, Inc. Digital Products, Inc.
By:_______________________________ By:_________________________________
Title:____________________________ Title:______________________________
Date:_____________________________ Date:_______________________________
COMPANY CONFIDENTIAL EXECUTION ORIGINAL: DECEMBER 12, 1995
- -------------------------------------------------------------------------------
ADDENDUM TO:
NEST SDK Developer Product Distribution License Exhibit
This ADDENDUM amends and supplements the NEST SDK Developer Product Distribution
License Exhibit dated December 28 , 1995 ("AGREEMENT") between Novell, Inc., a
Delaware corporation having a principal place of business at 1555 North
Technology Way, Orem, Utah 84057 ("NOVELL") and Digital Products, Inc., a
Massachusetts corporation having a principal place of business at 411 Waverly
Oaks Rd., Waltham, MA 02154 ("Developer").
1. AGREEMENT. The AGREEMENT shall remain in full force and effect, except
that it shall be modified as set forth in this ADDENDUM. Any
capitalized terms which are not defined in this ADDENDUM shall have the
meaning set forth in the AGREEMENT. Should a conflict arise between
this ADDENDUM and the AGREEMENT, the provisions of this ADDENDUM shall
control.
2. MODIFICATIONS. The parties hereby agree that the AGREEMENT shall be and
hereby is modified as follows:
a. The preamble to the Exhibit is hereby modified as follows:
"This NEST SDK Developer Product Distribution License
Exhibit (the "Exhibit") to the NEST SDK 1.x
Supplement (the "Supplement")..."
Is replaced with
"This NEST SDK Developer Product Distribution License
Exhibit (the "Exhibit") to the NEST SDK Technology
Provider Supplement (the "Supplement")..."
b. Section 3.1 of the Exhibit is hereby modified as follows:
"Developer Product Title:__________________________
NEST Components Licensed:_________________________"
Is replaced with
"Developer Product Title: NetPrint product family
NEST Components Licensed: NEST Requester
Developer Product Title: JetPrint boards
NEST Components Licensed: NEST Requester"
- -------------------------------------------------------------------------------
NEST Agreements Addendum
DPI_DIST.AD3 Novell, Inc.
COMPANY CONFIDENTIAL EXECUTION ORIGINAL: DECEMBER 12, 1995
- -------------------------------------------------------------------------------
c. The following Section 4.5 is hereby be added to the
Consideration section of the Exhibit:
"NTLP and NetWare Transport Fees. In consideration
for Developer actively participating as a Technology
Provider, and developing and distributing Qualifying
Developer Products in accordance with the conditions
of the NEST SDK Technology Provider Supplement and
this Exhibit, Novell waives the following fees owed
to Novell by Developer:
-A total of $75,000, comprised of the
$25,000 annual royalty payments due to
Novell by Developer for each of the
anniversary dates January 2, 1993, January
2, 1994 and January 2, 1995 of the NetWare
Transport Software License Agreement
executed by Novell and Developer on January
2, 1992.
-The annual fee of $15,000 for the period
October 13, 1994 to October 12, 1995 due to
Novell by Developer under the NetWare
Technology Licensing Program Supplement,
NetWare v.3.1x and 4.0 - Service Requester
agreement.
In addition, Developer may continue until December
31, 1995 to distribute products (IPX Products)
containing IPX/SPX, developed pursuant to the NetWare
Transport Software License Agreement, in accordance
with the terms of the NetWare Transport Software
License Agreement (NTSLA IPX/SPX), without incurring
additional royalties. Developer may purchase a
license to distribute the IPX Product according to
the terms of the NetWare Transport Software License
Agreement during the period of January 1, 1996 to
December 31, 1996 by paying Novell a pre-paid,
non-refundable license fee for the NTSLA IPX/SPX
components of the IPX Products of $25,000 for the
initial 50,000 units of IPX Product and a per copy
royalty of $1.20 for each unit in excess of the
initial 50,000 units.
d. The following Section 4.6 is hereby be added to the
Consideration section of the Exhibit:
In accordance with the royalty schedule in Section 4.4, within
thirty (30) days from the execution of this Exhibit Developer
shall pay Novell a per copy royalty per the number of copies
of the Qualifying Developer Products it has transferred, sold,
sublicensed or authorized for use prior to the execution of
this Exhibit.
- -------------------------------------------------------------------------------
NEST Agreements Addendum
DPI_DIST.AD3 -2- Novell, Inc.
e. Section 6.1 of the Exhibit is hereby replaced with the following:
"Term. The term of this Exhibit shall be two years from the
Distribution License Effective date and shall automatically
renew for successive one year periods unless either party
provides thirty (30) days or more prior written notice of its
intent to terminate this Exhibit."
3. CONTINUANCE OF AGREEMENT. Except as expressly amended and supplemented
by this ADDENDUM, all the terms and conditions of the AGREEMENT shall
remain in full force and effect. This ADDENDUM together with the
AGREEMENT, set forth the entire agreement and understanding between the
parties pertaining to the subject matter and merge all prior
discussions between them. Neither of the parties shall be bound by any
conditions, definitions, warranties, understandings or representations
with respect to the subject matter other than as expressly provided in
this ADDENDUM and the AGREEMENT.
NOVELL, INC. COMPANY
Signature:________________________ Signature:_____________________________
Name:_____________________________ Name:__________________________________
Title:____________________________ Title:_________________________________
Date:_____________________________ Date:__________________________________
- -------------------------------------------------------------------------------
NEST Agreements Addendum
DPI_DIST.AD3 -3- Novell, Inc.
NOVELL, INC.
NEST SDK Developer Product Distribution License Exhibit
- -------------------------------------------------------------------------------
This NEST SDK Developer Product Distribution License Exhibit (the "Exhibit") to
the NEST SDK 1.x Supplement (the "Supplement") and the Novell Embedded Systems
Technology Master Agreement (the "Agreement") is entered into by Novell and
Developer. This Exhibit is effective as of ____________________, 199__
("Distribution License Effective Date").
1 INTRODUCTION. The purpose of this Exhibit is to allow Developer,
subject to the restrictions contained in this Exhibit and the
Agreement, to sublicense, duplicate, and distribute Qualifying
Developer Products developed under the Agreement between Novell and
Developer. All terms and conditions of the Agreement are incorporated
herein by reference and shall have full force and effect between the
parties in the interpretation of this Exhibit.
2 DEFINITIONS. Capitalized terms in this Exhibit have the meanings stated
below or defined in the Agreement.
2.1 "Software" means binary code and Program Tools or binary code
produced from Program Tools that are linked or included in
Developer Product pursuant to the Supplement and is subject to
all terms and conditions of that Supplement.
2.2 "Sublicense" means an executed agreement or shrink-wrap
agreement or electronic license that an end user consents to
by performing a physical act (e.g., pushing a button on a
keyboard) before utilizing the Qualifying Developer Product
which at minimum provides the following or equivalent
protection to Novell:
2.2.1 restricts the number of copies of the Software to one
operating copy per Qualifying Developer Product;
2.2.2 permits only those number of copies of the Software
as are essential to back up or archival use of the
Software;
2.2.3 states that no title to the intellectual property
contained in the Software is transferred to the
sublicensee and it is retained by Novell;
2.2.4 represents that the human readable code of the
Software (source code) is not sublicensed to the
sublicensee;
2.2.5 restricts sublicensees from de-compiling and reverse
assembling the software to discover the source code;
and
2.2.6 prohibits time-sharing, lease, rental, distribution,
transfer, sublicense, and unauthorized use of the
software, without prior written consent.
3 LICENSES AND RESTRICTIONS.
3.1 Distribution License. Subject to the terms and conditions of
this Exhibit and the Agreement, Novell grants to Developer,
and Developer accepts, a non-exclusive, non-transferable,
world-wide license to reproduce and distribute (directly or
indirectly) the Qualifying Developer Products, being the
Developer Products identified below that are found to meet the
Qualifying Developer Product
requirements, but only under a Sublicense between Developer
and its end users or, in the case of distribution through
Developer's OEM customer, Developer must obtain binding
contractual assurances that Developer's OEM customers will
only distribute the Qualifying Developer Products under a
Sublicense between Developers OEM customer and its end users.
Developer Product Title:________________________________
NEST Components Licensed:_______________________________
Developer Product Title:________________________________
NEST Components Licensed:_______________________________
Developer Product Title:________________________________
NEST Components Licensed:_______________________________
Product names identified in this Section are solely to assist
Novell in program administration, but not for trademark
licensing purposes. Novell reserves the right to take action
in the event any Developer Product name violates Novell
rights.
4 CONSIDERATION. In exchange for the rights granted by Novell to
Developer under this Exhibit, Developer agrees to pay Novell a per copy
royalty per the number of copies of the Qualifying Developer Products
it transfers, sells, sublicenses or authorizes for use. A
non-refundable royalty payment ("Non-refundable Royalty Payment") is
set forth in the Royalty Schedule section below. Notwithstanding the
foregoing, Developer will report all such royalties due to Novell on a
monthly basis using calendar quarters.
4.1 Monthly Royalty. In addition, Developer shall pay to Novell a
royalty based upon the number of copies of each Qualifying
Developer Product transferred, sold or licensed by Developer.
Royalties shall accrue upon transfer, sale or license of
Qualifying Developer Products by Developer and shall be paid
to Novell no later than forty-five (45) days after the end of
each month.
4.2 Minimum Royalty. Developer shall pay to Novell a guaranteed
annual minimum royalty of 30 Thousand Dollars for the
Qualifying Developer Product that includes the NEST Client
Requester and/or NetWare IPX/SPX Modules. In addition, should
Qualifying Developer Products also include the NPrinter
modules, Developer shall pay to Novell a guaranteed annual
minimum royalty of 60 Thousand Dollars.
4.3 Audit. Developer shall maintain complete and accurate
accounting records, in accordance with generally accepted
accounting practices, to support and document royalty amounts
due under this Exhibit and shall retain such records for three
(3) years after payment is made. Developer shall, upon written
request of Novell, provide audit access to such records to
Novell. If Developer so decides, a mutually acceptable
independent accounting firm may conduct the audit at
Developer's
-2-
expense. Such access shall be granted only during normal
business hours and no more frequently than once in each
calendar year. All information received during the audit shall
be held in confidence by the parties.
4.4 Royalty Schedule
Item Base Price Discount Schedule
Units Percentage
IPX / SPX $2.00 5,000 100%
NEST Requester $4.00 10,000 90%
PServer/NPrinter $6.00 25,000 85%
50,000 80%
100,000 70%
250,000 60%
500,000 55%
1,000,000 45%
5,000,000 35%
10,000,000 25%
5 DEVELOPER'S DUTIES.
5.1 Qualifying Developer Products. Qualifying Developer Products
may only be sublicensed and distributed according to the terms
and conditions of this Exhibit.
5.2 Operating System Companies. Notwithstanding any other
provision(s) of this Agreement, Developer agrees that it may
not authorize the distribution of all or any portion of the
Qualifying Developer Products through companies that design,
develop, or market computer operating systems without the
prior written consent of an authorized Novell representative.
5.3 Protection. Developer agrees to take all reasonable steps to
protect the Program Tools and related Documentation Tools from
unauthorized copying or use. The source code of the Program
Tools provided in binary form represents and embodies trade
secrets of Novell which are not licensed to Developer.
Developer agrees not to reverse assemble or reverse compile
this binary code to discover the source code.
5.4 Documentation. Developer agrees to include a conspicuous
statement in its documentation identifying Developer as the
primary support contact for the
-3-
Qualifying Developer Products distributed by Developer. Upon
request, Developer agrees to provide Novell with three copies
of its then current documentation.
5.5 End-user support. Developer agrees to provide all technical
support for all aspects of the Qualifying Developer Product.
5.6 Yes Logo. Developer agrees to prominently display the Yes Logo
on Qualifying Developer Product, and all marketing materials,
product packaging, and advertising material related to
Qualifying Developer Product; to emphasize the Yes Logo in at
least one Qualifying Developer Product advertisement,
Qualifying Developer Product line advertisement, or corporate
positioning advertisement in an appropriate national
publication; and provide appropriate product and program
descriptions in all materials bearing the Yes Logo.
6 TERM AND TERMINATION.
6.1 Term. The term of this Exhibit shall be one year from the
Distribution License Effective Date of and shall automatically
renew for successive one year periods unless either party
provides thirty (30) days or more prior written notice of its
intent to terminate this Exhibit.
6.2 Termination for Convenience. Either party may terminate this
Exhibit and the licenses granted by Novell under the Licenses
and Restrictions Section of this Exhibit at any time without
cause by giving 180 calendar days' prior written notice to the
other party. In the case that Novell exercises it right to
terminate for convenience, Developer may distribute Qualifying
Developer Product then in inventory for which Developer has
already paid royalties.
7 SIGNATURES.
NOVELL, INC. (DEVELOPER)________________________
Signature:__________________________ Signature:_________________________
Name:_______________________________ Name:______________________________
Title:______________________________ Title:_____________________________
Date:_______________________________ Date:______________________________
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