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EXHIBIT 10.1
Agreement # G10530-1
LONWORKS(R)
OEM LICENSE AGREEMENT
This Agreement is entered into between ECHELON CORPORATION ("Echelon")
and Dayton General Systems ("Licensee") on the following terms and conditions:
1. DEFINITIONS
(a) "LonTalk(R) Protocol" means Echelon's protocol for control
networks.
(b) "Neuron(R) Chips" means semiconductor devices designed or used
to implement all or part of the LonTalk Protocol that are
manufactured by Echelon or by a supplier licensed by Echelon
to manufacture or distribute such devices.
(c) "LonWorks Applications" means equipment that incorporates
Neuron Chips and the LonTalk Protocol. LonWorks Applications
shall exclude development systems for developing applications
that use the LONTALK Protocol.
(d) "Echelon Intellectual Property" means (i) U.S. Patent No.
4,918,690, U.S. Patent No. 4,941,143, U.S. Patent No.
4,955,018, U.S. Patent No. 4,969,147, U.S. Patent No.
5,319,641 and foreign patents based upon such U.S. patents and
claiming the same inventions, and (ii) Echelon copyrights
governing the LonTalk Protocol.
(e) "Neuron Chip Firmware" means only the Echelon software which,
among other things, implements the LonTalk Protocol, and which
is identified as "Neuron Chip Firmware" in the documentation
and/or start up screen for Echelon's development systems for
developing applications that use the LonTalk Protocol.
2. LICENSE
(a) Echelon grants Licensee a nonexclusive, royalty-free, fully
paid license, under Echelon Intellectual Property, to make,
use and sell LONWORKS Applications. Licensee agrees that
whenever a Neuron Chip is executing instructions, the Neuron
Chip Firmware shall be loaded into it starting at address
location 0 (zero). Licensee's rights to use the LonTalk
Protocol and Neuron Chips shall not extend to use of the
LonTalk Protocol in devices that duplicate the functions of
all or part of the Neuron Chips, or to use the Neuron Chips
with any communications protocol other than the LonTalk
Protocol. The foregoing limitations shall apply to all Neuron
Chips incorporated by Licensee into its LonWorks Applications,
including Neuron Chips contained in products or equipment
purchased by Licensee.
(b) In the event that Licensee manufactures LonWorks Applications
in an incomplete form without the LonTalk Protocol, Licensee
may sell or otherwise distribute such LonWorks Applications
only to customers who have entered into a LonWorks Development
License Agreement or LonWorks OEM License Agreement with
Echelon or its subsidiaries that has an agreement number
preceded by the letter "E" or a subsequent letter of the
alphabet (an "OEM Licensee"). Licensee shall maintain records
of the names, addresses and Echelon License Agreement numbers
of its customers for such LonWorks Applications and shall,
within fifteen (15) days after the end of each calendar
quarter, provide Echelon with a report listing all of such
customers for the previous calendar quarter. If Echelon
notifies Licensee that any customer listed in such report is
not an OEM licensee, then Licensee shall promptly discontinue
selling such LonWorks Applications to such customer.
(c) Echelon grants Licensee a nonexclusive, royalty-free, fully
paid license to reproduce and distribute the Neuron Chip
Firmware without modification for use only with Neuron Chips;
provided that Neuron Chip Firmware is programmed into either:
(i) the memory of a Neuron Chip, or (ii) a memory device
attached to the memory bus of a Neuron Chip. Notwithstanding
the foregoing, Licensee may provide a master copy of the
Neuron Chip Firmware linked with an application program on
removable media to (A) an OEM Licensee who is a contract
manufacturer for Licensee's LonWorks Applications and (B) an
OEM Licensee for whom Licensee is designing LonWorks
Applications, for use and distribution by such OEM Licensee
pursuant to the terms of such OEM Licensee's agreement with
Echelon. Licensee agrees not to modify, translate, reverse
engineer, decompile, disassemble or otherwise attempt to
derive source code for the Neuron Chip Firmware (except to the
extent that such acts may not be prohibited under applicable
law).
(d) At the request of Licensee, and upon receipt of a fee of Fifty
United States Dollars (U.S. $50.00), Echelon will deliver to
Licensee one (1) copy of the Neuron Chip Firmware if Licensee
has not already received such a copy from Echelon.
(e) No license is granted, express or implied, under any patents,
trade secrets, know-how or other intellectual property of
Echelon covering specific applications or implementations of
the LonTalk Protocol, LonWorks Applications or Neuron Chips.
Licensee shall have no right under Echelon Intellectual
Property to modify the LonTalk Protocol.
(f) Licensee may make appropriate and truthful reference to
Echelon and Echelon products and technology in Licensee's
company and product literature, provided that Licensee
properly attributes Echelon's trademarks; and provided,
further, that Licensee does not use the name of Echelon or any
Echelon trademark in its name or its product name. No license
is granted, express or implied, under any Echelon trademarks,
trade names or service marks.
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3. USE OF NEURON CHIPS
LICENSEE ASSUMES RESPONSIBILITY FOR, AND HEREBY AGREES TO USE ITS BEST
EFFORTS IN, DESIGNING AND MANUFACTURING EQUIPMENT LICENSED HEREUNDER TO
PROVIDE FOR SAFE OPERATION THEREOF, INCLUDING, BUT NOT LIMITED TO,
COMPLIANCE OR QUALIFICATION WITH RESPECT TO ALL SAFETY LAWS,
REGULATIONS AND AGENCY APPROVALS, AS APPLICABLE. THE NEURON CHIP,
LONTALK PROTOCOL AND NEURON CHIP FIRMWARE ARE NOT DESIGNED OR INTENDED
FOR USE AS COMPONENTS IN EQUIPMENT INTENDED FOR SURGICAL IMPLANT INTO
THE BODY, OR OTHER APPLICATIONS INTENDED TO SUPPORT OR SUSTAIN LIFE,
FOR USE IN FLIGHT CONTROL OR ENGINE CONTROL EQUIPMENT WITHIN AN
AIRCRAFT, OR FOR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE
NEURON CHIP, LONTALK PROTOCOL OR NEURON CHIP FIRMWARE COULD CREATE A
SITUATION IN WHICH PERSONAL INJURY OR DEATH MAY OCCUR, AND LICENSEE
SHALL HAVE NO RiGHTS HEREUNDER FOR ANY SUCH APPLICATIONS.
4. INDEMNITY
Echelon shall indemnify Licensee for any liabilities, damages and costs
payable by Licensee to a third party in an action for infringement of
any third party United States patent by the LonTalk Protocol and for
reasonable attorney's fees relating thereto. The foregoing shall be
subject to the Licensee notifying Echelon promptly in writing of and
giving Echelon the exclusive authority to defend or settle any such
claim or proceeding. If the use of the LonTalk Protocol is enjoined or
is the subject of any actual or potential patent infringement action,
Echelon may, at its option, procure for Licensee the right to continue
to use the LonTalk Protocol or replace or modify the LonTalk Protocol
so that it becomes noninfringing. Notwithstanding the foregoing,
Echelon assumes no liability for any claims attributable to Licensee's
specific applications for the LonTalk Protocol or attributable to the
use of the LonTalk Protocol in combination with equipment or technology
not provided by Echelon if the claim would not have occurred but for
such specific application or combination. In addition, in no event
shall Echelon's liability to Licensee under this paragraph exceed the
amount of Two Thousand Five Hundred United States Dollars (U.S.
$2,500,00.). THE FOREGOING STATES THE ENTIRE LIABILITY OF ECHELON WITH
RESPECT TO INFRINGEMENT OF ANY PATENTS OR OTHER INTELLECTUAL PROPERTY
RIGHT BY THE LONTALK PROTOCOL, LONWORKS APPLICATIONS, NEURON CHIP,
ECHELON INTELLECTUAL PROPERTY OR NEURON CHIP FIRMWARE.
WARRANTY AND DISCLAIMER
Echelon represents and warrants that it has the right to grant the
licenses granted herein. ECHELON DISCLAIMS ALL OTHER WARRANTIES AND
CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, RESPECTING THE LONTALK
PROTOCOL, LONWORKS APPLICATIONS, NEURON CHIPS, ECHELON INTELLECTUAL
PROPERTY OR NEURON CHIP FIRMWARE, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE.
6. TERMI(NATION) AND TERMINATION
(a) The term of this Agreement shall be ten (10) years from the
date of execution unless terminated earlier as provided below.
Licensee may renew this Agreement for an additional ten (10)
year period upon written notice delivered to Echelon within
the last six (6) months of the initial term, Echelon agrees to
give Licensee six (6) months notice prior to expiration of the
initial term of this Agreement. If Echelon fails to give such
notice, then this Agreement shall remain in force until six
(6) months after notice of expiration is given by Echelon (but
in no event longer than six (6) months after ten (10) years
from the date of execution) unless renewed prior to such date.
(b) In addition, the non-breaching party may terminate this
Agreement upon a breach by the other party if such breach
remains uncured thirty (30) days after delivery by the
non-breaching party of written notice of the breach. The
provisions of paragraphs 5, 7 and 8 shall survive any
termination of this Agreement. All other provisions shall
terminate.
7. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR
OTHER SPECIAL CONSEQUENTIAL, INDIRECT, PUNITIVE OR INCIDENTAL DAMAGES,
HOWEVER CAUSED ON ANY THEORY OF LIABILITY, ARISING IN ANY WAY OUT OF
THIS AGREEMENT OR THE DEVELOPMENT OR DISTRIBUTION BY LICENSEE OF
APPLICATIONS OR SYSTEMS USING THE LONTALK PROTOCOL, NEURON CHIPS OR
NEURON CHIP FIRMWARE. THE FOREGOING SHALL NOT APPLY TO ANY BREACHES BY
LICENSEE OF SECTIONS 2 OR 3.
8. MISCELLANEOUS
(a) Licensee shall comply with any United States export controls
governing export of any technical data or technology provided
by Echelon. If Licensee is other than a U.S. entity or is
located outside the U.S., Licensee, as a prior condition to
exercising its rights hereunder, shall execute any letter of
written assurances required for the export of technical data
or technology by Echelon and shall comply with such other
requirements of the U.S. Department of Commerce or other
applicable agency for the export of technical data or
technology by Echelon and shall comply with such other
requirements of the U.S. Department of Commerce or other
applicable agency for the export of technical data or
technology by Echelon to Licensee.
(b) If Licensee is other than a U.S. entity or is located outside
of the U.S., Licensee represents that no consent or approval
of any governmental authority is required in connection with
the valid execution and performance of this Agreement.
(c) This Agreement will be governed by and construed in accordance
with the laws of the State of California, U.S.A., except that
body of California law concerning conflicts of law.
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(d) Licensee shall not assign this Agreement or any of its rights
or duties hereunder except to a successor-in-interest without
the prior written consent of Echelon which shall not be
unreasonably withheld.
(e) Use, duplication or disclosure by the U.S. Government is
subject to restrictions as set forth in subdivision (c)(i)(ii)
of the Rights in Technical Data and Computer Software clause
at DFARS 2152.227-7013, the Commercial Computer Software
Restricted Rights clause at FAR 52.227-19, or other comparable
regulations of other government agencies, as applicable.
(f) Licensee agrees that Echelon may disclose its name, address
and Agreement number to vendors of Neuron Chips or LonWorks
Applications for the purpose of verifying Licensee's status as
an Echelon licensee.
(g) This Agreement constitutes the entire agreement between the
parties, and supersedes any prior agreements, with respect to
the subject matter hereof. No amendment to any term of the
Agreement shall be valId unless mutually agreed to in writing
by the parties. The failure of either party to enforce any
provision of this Agreement shall not constitute a waiver of
such provision.
ECHELON CORPORATION: LICENSEE: Dayton General Systems
Signature: 161 Oliver R. Stanfeld Signature: 151 Thomas C. Haas
Print Name: Oliver R. Stanfield Print Name: Thomas c. Hass
Title: Vice President Title: CEO
Effective Date: May 26, 1995 Date Signed: May 22, 1995
Address: 4015 Miranda Avenue Address: 2492 Technical Drive
Palo Alto, CA 94304 Miamisburg, OH 45342
(800) 258-4LON
Phone: 513-847-7800
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