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Exhibit 10.2
AGREEMENT NUMBER C10519-2
SOFTWARE LICENSE AGREEMENT
BETWEEN
ECHELON CORPORATION
4015 MIRANDA AVENUE
PALO ALTO, CALIFORNIA 94304
AND
DEVELOPER
DGS
4601 GATEWAY CIRCLE
DAYTON, OH 45440
Echelon Corporation ("Echelon") enters into this Agreement to
license to Developer ("Developer") certain computer programs described in
Exhibit A attached hereto in accordance with the terms and conditions of this
Agreement.
This Agreement consists of this cover page, the attached Terms
and Conditions, and Exhibits A (Executable Files, Development Purpose and
Developer's Product), B (License Fees), C (Royalties), and D (End User License
Restrictions). There are separate sequentially numbered Exhibits A, B and C for
each computer program available from Echelon (e.g., Exhibit A-1, Exhibit A-2,
etc.). Additional Exhibits A, B and C may be added to this Agreement by
execution thereof by both parties. All references in the Terms and Conditions to
Exhibit A, Exhibit B, or Exhibit C include all Exhibit A's, all Exhibit B's, or
all Exhibit C's in effect, as applicable.
Developer has read, understands and agrees to the terms of
this Agreement and the undersigned is duly authorized to sign this Agreement.
ECHELON CORPORATION DEVELOPER
By:/s/ Oliver R. Stanfield By:/s/ Vernon F. Brannon
Oliver R. Stanfield Vernon F. Brannon
(Print Name) (Print Name)
Title: Vice President & CFO Title: President
Date: 12-27-93 Date: 12-8-93
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SOFTWARE LICENSE AGREEMENT
TERMS AND CONDITIONS
1 DEFINITIONS.
1.1 "Object Code" means the computer program(s) set forth
on Exhibit A in object code form.
1.2 "Documentation" means the documentation accompanying
the Object Code.
1.3 "Executable Files" means the executable files set forth
on Exhibit A and the Support Files.
1.4 "Support Files" means the support files set forth on
Exhibit A.
1.5 "Utilities" means all other files supplied on the
distribution disk(s) not defined as Object Code or
Support Files.
1.6 "Licensed Software" means the Object Code, Support
Files, Utilities and Documentation.
1.7 "Developer's Product" shall have the meaning set forth
on Exhibit A.
1.8 "LONTALK(TM) Protocol" means Echelon's protocol for
control networks.
1.9 "Development Purpose" shall have the meaning set forth
on Exhibit A.
2 LICENSE.
2.1 Object Code. Echelon hereby grants Developer a nonexclusive,
nontransferable license to use the Object Code solely for the Development
Purpose, and to use the Documentation, Support Files and Utilities to support
such efforts. Developer may make one (1) copy of the Licensed Software for
backup purposes.
2.2 Executable Files. Echelon further grants Developer a nonexclusive,
nontransferable, worldwide license to use, reproduce and distribute Executable
Files. Developer may distribute the Executable Files only incorporated into and
as an integral part of Developer's Product. The foregoing license shall be
effective upon execution by Developer and Echelon of Exhibit C, and Exhibit C
may be executed at any time prior to distribution by Developer of Executable
Files.
2.3 Developer's Product. If Developer's Product as defined on Exhibit A
is a computer program and not a hardware product, then Developer agrees that the
Developer's Product into which the Executable Files are incorporated will
include software supplied
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by Developer which, by an objective examination of features and functions,
represents a significant enhancement and transformation of the Licensed Software
and results in a product substantially different from the Licensed Software.
Developer further agrees that it will not use any Licensed Software for the
purpose of developing, or incorporate the Licensed Software into, development
systems for developing applications which use the LONTALK Protocol.
2.4 Breach. Upon Echelon's request, Developer shall furnish to Echelon
evidence of compliance with the provisions of Section 2.3. Developer
acknowledges and agrees that its compliance with Section 2.3 is within the sole
discretion of Echelon, and that Developer's failure to comply with these
restrictions will enable Echelon to terminate this Agreement with respect to the
Licensed Software for which Developer is not in compliance immediately upon
notice without Developer's opportunity to cure.
2.5 Distributors. Developer may exercise its distribution rights
granted pursuant to Section 2.2 above through the use of third party
distributors, resellers, dealers and sales representatives (collectively,
"Distributors"). Each Distributor authorized by Developer shall agree in writing
to be bound by the provisions of Sections 3, 6, 7 and 8 hereof. Distributors
shall have no right to modify or reproduce (except as necessary to demonstrate
the Developer's Product to potential customers) the Licensed Software.
2.6 Ownership. Developer acknowledges that the Licensed Software is the
proprietary and confidential information of Echelon or its suppliers and that
Echelon or its suppliers retain all right, title, and interest in and to the
Licensed Software, including without limitation all copyrights and other
proprietary rights.
2.7 Restrictions. Developer agrees not to reverse engineer, reverse
assemble, decompile, or otherwise attempt to derive source code from the
Licensed Software. Developer may not use, modify, reproduce, sublicense,
distribute or otherwise provide to third parties the Licensed Software, in whole
or in part, other than as permitted under this Agreement. Developer is permitted
to allow third party contractors to use the Licensed Software at Developer's
place of business for the purposes set forth in Section 2.1 above, provided
that: (i) the Licensed Software is conspicuously identified as Confidential
Information as provided in Section 9 of this Agreement; and (ii) with respect to
the Licensed Software such contractor is subject to a confidentiality obligation
at least as stringent as that set forth in Section 9 this Agreement. Developer
shall have no right to reproduce, distribute or otherwise provide to third
parties the Documentation, except as provided in the previous sentence.
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3 END USER LICENSE RESTRICTIONS.
The following provisions of this Section 3 apply only if
Developer's Product as defined on Exhibit A is a computer program and not a
hardware product:
(i) Each copy of Developer's Product containing any Executable Files
that is distributed hereunder shall be distributed pursuant to a software
license agreement between Developer and the end user that incorporates the terms
and conditions set forth on Exhibit D. In jurisdictions in which an enforceable
copyright covering the Licensed Software exists, the agreement may be a written
agreement in the package containing such Developer's Product that is fully
visible to the end user and that the end user accepts by opening the package. In
all other jurisdictions, such agreement must be a written agreement signed by
the end user. Developer agrees to use its best efforts to enforce the
obligations of its end user software license agreements and to inform Echelon
immediately of any known breach of such obligations. Echelon may modify the
terms of Exhibit D upon sixty (60) days written notice to Developer. After the
end of such period, such Developer's Product may be distributed only pursuant to
the modified terms.
(ii) Notwithstanding the foregoing paragraph, Developer shall not be
obligated to distribute such Developer's Product pursuant to a software license
agreement as described in the foregoing paragraph for copies of such Developer's
Product that are distributed internally for Developer's internal business
purposes. For each such copy of Developer's Product, Developer agrees to be
bound by the restriction in Sections 1, 2, 4, 5, 6, 10, and 11 of Exhibit D with
respect to the Executable Files included in the Developer's Product.
4 CONSIDERATION.
4.1 License Fees. In consideration for the license granted
pursuant to Section 2.1, Developer agrees to pay to Echelon the one-time
nonrefundable license fee(s) set forth on Exhibit B. Upon receipt of Developer's
executed Exhibit B and a purchase order for the Licensed Software, Echelon will
invoice Developer for such fee. Payment of the invoiced amount will be due
within thirty (30) days of the invoice date. Any invoiced amount not paid when
due may bear interest at the rate of one and one-half percent (1 1/2%) per month
or, if less, the maximum amount permitted by applicable law.
4.2 Royalties.
(a) In consideration for the license granted pursuant to
Section 2.2, Developer agrees to pay to Echelon the royalties set forth on
Exhibit C for each copy of the Executable Files that is distributed by or for
Developer according to the terms of
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Exhibit C. If Developer's Product incorporating such Executable Files, as
defined on Exhibit A, is a computer program, the royalty shall be due for each
copy distributed and each copy shall be distributed for use only on a single
computer and not for use in a network. If Developer's Product incorporating such
Executable Files, as defined on Exhibit A, is a hardware product, the royalty
shall be due for each copy of such Executable Files distributed in each hardware
product. As used in this Section 4, "distribute" includes, but is not limited
to, distributed internally for business purposes other than solely for
development.
(b) Developer shall pay, within thirty (30) days after the end
of each calendar quarter or part thereof during the term of this Agreement, the
aggregate royalties for all such Developer's Products distributed by Developer
during such quarter. Developer will also submit to Echelon within thirty (30)
days after the end of each calendar quarter or part thereof during the term of
this Agreement, a reasonably detailed report for the quarter for which such
royalties are due, which describes (i) the number of such Developer's Products
distributed by Developer, and (ii) the calculation of the royalties due.
(c) Notwithstanding paragraph (a) above, no royalty will be
payable for limited numbers of such Developer's Product distributed by Developer
internally and to Distributors solely for marketing and sales demonstrations. In
addition, if such Developer's Product as defined on Exhibit A is a computer
program and not a hardware product, no royalties will be payable for limited
copies of Developer's Product distributed solely for the following purposes; (i)
limited copies internally and to Distributors for product maintenance and
support; (ii) as back up copies; (iii) as error corrections that are distributed
generally to third party customers for no fee (or for media and handling charges
only); or (iv) as error corrections that are distributed to internal users,
provided, that such error corrections do not incorporate new features or
functions.
4.3 Taxes.
(a) The fees and royalties payable hereunder do not include
any sales, use, excise, value-added, or similar taxes that may be applicable.
When Echelon has the legal obligation to collect such taxes, the appropriate
amount shall be added to Developer's invoice and paid by Developer unless
Developer provides Echelon with a valid tax exemption certificate authorized by
the appropriate taxing authority. Echelon agrees to take such steps as may be
practical to minimize such taxes.
(b) All payments by Developer shall be made free and clear of, and
without reduction for, any withholding taxes. Any such taxes which are otherwise
imposed on payments to Echelon shall be the sole responsibility of Developer.
Developer shall
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provide Echelon with official receipts issued by the appropriate taxing
authority or such other evidence as is reasonably requested by Echelon to
establish that such taxes have been paid. Developer will cooperate with Echelon
and take all actions reasonably necessary in order to secure a reduction or
elimination of withholding taxes pursuant to any income tax treaty between the
United States and the jurisdiction of the appropriate taxing authority, as
applicable.
4.4 Audit Rights. Developer agrees to make and to maintain, until the
expiration of two (2) years after the last payment under this Agreement is due,
complete books, records and accounts regarding products distributed by Developer
and payments due to Echelon hereunder. Echelon will have the right not more than
once every six (6) months to examine such books, records and accounts during
Developer's normal business hours to verify Developer's reports and payments
made to Echelon under this Agreement. Developer agrees promptly to pay the
amount of any shortfall and, if any such examination discloses a shortfall in
payment to Echelon of more than five percent (5%) for any quarter, to pay or
reimburse Echelon for the reasonable auditing expenses incurred in connection
with such examination.
5 SUPPORT.
Support, updates and training will be provided pursuant to
Echelon's standard programs, policies and prices. Developer agrees that any
Licensed Software update or upgrade (the "Replacement Software") provided by
Echelon is subject to this Agreement. In the event that Echelon provides
Developer with Replacement Software, then Developer agrees to destroy all copies
of the prior release of the applicable Licensed Software within thirty (30) days
after receipt of Replacement Software; provided, however, that Developer may
retain one copy of the prior release for backup, archival and support purposes.
6 WARRANTY AND DISCLAIMER.
Echelon warrants that the media on which the Licensed Software
is delivered will be free from defects in materials and workmanship for a period
of ninety (90) days after delivery. Except as expressly provided above, Echelon
licenses the Licensed Software to Developer on an "AS IS" basis. ECHELON AND ITS
SUPPLIERS MAKE AND DEVELOPER RECEIVES NO WARRANTIES OR CONDITIONS, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE LICENSED
SOFTWARE OR ITS USE OR OPERATION, ALONE OR IN COMBINATION WITH DEVELOPER'S
PRODUCT.
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7 LIMITATION OF LIABILITY.
IN NO EVENT SHALL ECHELON OR ITS SUPPLIERS BE LIABLE FOR
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR
THE USE OR DISTRIBUTION OF LICENSED SOFTWARE BY DEVELOPER OR ANY THIRD PARTY,
WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY,
PRODUCT LIABILITY OR OTHERWISE. IN NO EVENT SHALL ECHELON'S LIABILITY EXCEED THE
TOTAL AMOUNT PAID BY DEVELOPER TO ECHELON FOR THE LICENSED SOFTWARE GIVING RISE
TO SUCH LIABILITY.
8 LABELLING.
8.1 Notices. Developer shall not remove any copyright notices or
proprietary legends contained within the Licensed Software. Developer shall
include a copyright notice in Developer's Product that contains Executable Files
if such Developer's Product as defined on Exhibit A is a computer program, and
on Developer's Product if such Developer's Product as defined on Exhibit A is a
hardware product, reflecting the copyright ownership of Echelon and, if
appropriate, of Developer. Developer agrees to indicate in Developer's
documentation for such Developer's Product that such product contains
copyrighted material of Echelon.
8.2 Trademarks. Unless Echelon otherwise agrees in writing, Developer
may not use any Echelon trademarks, service marks, trade names, or logos in any
products, advertising, brochures, or promotional materials.
9 CONFIDENTIALITY.
9.1 Confidential Information. Developer acknowledges that information
which Echelon discloses to Developer in a tangible form and which is marked
"Confidential" or "Proprietary" (or with a similar legend), or that is disclosed
orally and confirmed in writing as confidential within a reasonable time,
constitutes the proprietary and confidential information of Echelon
("Confidential Information"). Even if not so marked, the parties agree that the
Licensed Software and Documentation shall be "Confidential Information"
hereunder.
9.2 Use and Disclosure. Developer agrees not to use, disclose,
distribute or disseminate Confidential Information except as expressly permitted
under this Agreement. Developer agrees to restrict access to such Confidential
Information to only those employees who need such Confidential Information in
order for Developer to exercise its rights hereunder. Developer will not use
such materials at a location other than Developer's address listed above without
Echelon's consent.
9.3 Remedies. Developer acknowledges that breach of the foregoing
confidentiality obligation would cause irreparable harm
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to Echelon, the extent of which would be difficult to ascertain. Accordingly,
Developer agrees that Echelon may seek immediate injunctive relief in the event
of a breach by Developer or any of its employees of the provisions of this
Section 9. In the event of such a breach, Echelon shall have the right to
terminate this Agreement immediately upon notice without opportunity to cure. In
addition, Developer shall indemnify Echelon for all losses, damages, costs and
expenses which Echelon may sustain or incur as a result of such a breach.
9.4 Notification. Developer agrees to notify Echelon promptly in the
event of any breach of its security under conditions in which it would appear
that the Confidential Information were prejudiced or exposed to loss. Developer
shall, upon request of Echelon, take all other reasonable steps necessary to
recover any compromised trade secrets disclosed to or placed in the possession
of Developer by virtue of this Agreement. The cost of taking such steps shall be
borne solely by Developer.
9.5 Exceptions. The foregoing restrictions will not apply to
information that Developer can demonstrate: (i) was known to Developer at the
time of disclosure to Developer by Echelon as shown by the files of Developer in
existence at the time of disclosure; (ii) has become publicly known through no
wrongful act of Developer; (iii) has been rightfully received from a third party
authorized by Echelon to make such disclosure without restriction; (iv) has been
approved for release by written authorization of Echelon; or (v) has been
independently developed by Developer without any use of Confidential Information
and by employees or other agents of Developer who have not been exposed to the
Confidential Information, provided that Developer can demonstrate such
independent development by a preponderance of the evidence, including documented
evidence prepared contemporaneously with such independent development.
10 DELIVERY OF THE LICENSED SOFTWARE.
Echelon will deliver to Developer the number of sets of the
Licensed Software set forth on Exhibit B upon receipt of Developer's executed
Exhibit B and purchase order for the Licensed Software. Each set may contain
copies of the Object Code, Utilities and Support Files in more than one version
or more than one medium; Developer's license permits use of only one copy from
each set as provided herein.
11 INDEMNIFICATION.
11.1 By Echelon. Echelon shall indemnify and hold harmless
Developer from and against all liabilities payable to third
parties and reasonable expenses of Developer (including
reasonable fees of attorneys and other professionals) resulting
from any infringement by the Licensed Software of any copyright
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or trade secret of any third party. Developer shall promptly notify Echelon of
any such claim and, at Echelon's option, permit Echelon to control the defense
and settlement thereof. Developer shall not enter into any settlements that
affect Echelon without the prior written consent of Echelon, which shall not be
unreasonably withheld. In the event of such infringement, Echelon shall use
every reasonable effort to obtain a license under the intellectual property
rights that are infringed; provided that if in Echelon's judgment such a license
is not available on reasonable terms, Echelon may terminate the licenses granted
to Developer hereunder with respect to the infringing Licensed Software upon
written notice to Developer. Echelon shall have no liability for infringement
based on (i) use of other than the current release of the Licensed Software,
(ii) modification of the Licensed Software, or (iii) the combination or use of
the Licensed Software with software or any item or process not furnished by
Echelon if such infringement would have been avoided by the use of the Licensed
Software alone. IN NO EVENT SHALL ECHELON'S LIABILITY UNDER THIS SECTION 11.1
EXCEED THE TOTAL AMOUNT PAID BY DEVELOPER TO ECHELON FOR THE LICENSED SOFTWARE
GIVING RISE TO SUCH LIABILITY. THIS SECTION 11.1 STATES ECHELON'S ENTIRE
OBLIGATION WITH RESPECT TO INFRINGEMENT BY SUCH MATERIALS OF INTELLECTUAL
PROPERTY RIGHTS.
11.2 By Developer. Except to the extent Echelon is responsible for a
claim under Section 11.1 above, Developer shall indemnify, hold harmless and, at
Echelon's request, defend Echelon from and against any and all claims,
liabilities and expenses (including reasonable fees of attorneys and other
professionals) arising out of or in connection with Developer's use or
distribution of the Licensed Software.
12 TERM AND TERMINATION.
12.1 Term. This Agreement shall continue in full force and effect
unless and until terminated as provided in Section 12.2 below or in Section 2.4,
9.3, 11.1 or 13.2.
12.2 Termination.
(a) If either party defaults in the performance of any
provision of this Agreement, then the non-defaulting party may give written
notice to the defaulting party that if the default is not cured within thirty
(30) days the Agreement will be terminated. If the non-defaulting party gives
such notice and the default is not cured during the thirty (30) day period, then
the Agreement will terminate immediately upon notice by the non-defaulting
party.
(b) This Agreement will terminate automatically without
notice, (i) upon the institution by or against Developer of insolvency,
receivership or bankruptcy proceedings or any other proceedings for the
settlement of Developer's debts, (ii)
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upon Developer's making an assignment for the benefit of creditors, or (iii) in
the event of Developer's dissolution or insolvency.
(c) Developer may terminate this Agreement either in its
entirety or with respect to particular Licensed Software for any reason or for
no reason upon thirty (30) days written notice to Echelon.
12.3 Effect of Termination. In the event of termination of this
Agreement, all rights and licenses granted herein shall terminate, except that
the following provisions shall apply: (i) Developer may continue to distribute
Developer's Product that contains the Executable Files for a period of ninety
(90) days after the effective date of such termination, subject to the payment
of applicable royalties; and (ii) Developer may continue to use the Licensed
Software only to provide support for third party end users existing as of the
end of the ninety (90) day period only for so long as Developer is contractually
obligated to provide such support and for internal end users for a one hundred
eighty (180) day period after the effective date of termination; provided,
however, that the foregoing provisions shall not apply if this Agreement is
terminated by Echelon pursuant to Section 9.3 or for the material default of
Developer, or is terminated by Developer pursuant to Section 12.2(c) above, and
the foregoing provisions shall not apply with respect to Licensed Software for
which Developer's rights are terminated pursuant to Section 2.4 or 11.1.
Promptly following termination of Developer's rights under this Section 12.3,
Developer shall return to Echelon all copies of the Licensed Software then in
its possession or control and erase any such copies from computer memory.
12.4 Survival. The parties' rights and obligations under Sections 2.6,
2.7, 4, 6, 7, 8, 9, 11 and 13 shall survive any termination of this Agreement.
All end user licenses granted by Developer to third parties prior to termination
or the end of the ninety (90) day period provided for in Section 12.3 above, as
applicable, shall also survive. In addition, Developer's license shall survive
with respect to copies of Developer's Product containing Executable Files that
were distributed internally prior to termination or the end of the ninety (90)
day period provided for in Section 12.3 above, as applicable, for so long as
Developer is not in breach of the applicable provisions of Exhibit D as set
forth in Section 3.
12.5 No Waiver. The failure of either party to enforce any provision of
this Agreement shall not be deemed a waiver of such provision. The rights of
Echelon under this Section 12 are in addition to any other rights and remedies
provided by law or under this Agreement.
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13 MISCELLANEOUS.
13.1 Assignment. This Agreement may not be assigned by Developer
without the prior written consent of a duly authorized representative of
Echelon, and any purported assignment without such consent shall be void ab
initio.
13.2 Change of Control. In the event that any third party directly or
indirectly takes over or assumes the control of Developer or of substantially
all of Developer's assets then Echelon shall have the right to terminate this
Agreement effective upon notice to Developer.
13.3 Governing Law. 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.
13.4 Arbitration. Either party may institute a suit for injunctive
relief to prevent a breach of this Agreement (plus an award of costs and
attorneys' fees), and Echelon may institute an action for royalties under this
Agreement (plus costs and attorneys' fees), in any court of competent
jurisdiction; as to any such suit, both parties accept, and hereby submit, to
the nonexclusive in personam jurisdiction of any state or federal court in San
Francisco or Santa Clara County, California. Any other dispute arising out of or
in connection with or relating to this Agreement shall be determined by binding
arbitration conducted in accordance with this Agreement, and, at its sole
election, Echelon may elect such arbitration instead of a court action for
adjudication of a royalty dispute.
(a) Initiation of Arbitration. Either party may commence an
arbitration proceeding hereunder by delivering a written demand to the other
party describing the dispute in sufficient detail to apprise the other party of
the facts and legal theory upon which the demanding party bases its claim and
stating the relief requested.
(b) Selection of Arbitrator. If the parties are unable to
agree on an arbitrator within twenty (20) days after receipt of the demand for
arbitration, the parties shall, within ten (10) days after expiration of the
twenty-day period, exchange lists setting forth five names of proposed
arbitrators; each party shall be entitled to strike up to three names from the
other party's list; and the unstricken names shall be submitted to the President
of the American Arbitration Association and the arbitrator shall be selected by
him or his designee from among the names submitted. In the event of any failure
in the process, the arbitrator shall in any event be selected by the President
of the American Arbitration Association or his designee.
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(c) Limitation on Powers of Arbitrator. The arbitrator shall
apply California law (without reference to rules of conflicts of law) to the
merits of the dispute but the arbitrator shall not in any circumstances have the
power or authority to add to or detract from this Agreement, to find any
provision of this Agreement unconscionable or otherwise unenforceable or to
award any party punitive damages or any other remedy or damages prohibited by
this Agreement.
(d) Arbitration Hearing. The arbitration hearing shall be
conducted at a place (and at times) designated by the arbitrator in San
Francisco or in Santa Clara County, California and shall begin not later than
ninety (90) days after receipt of the demand for arbitration and, regardless of
the number of issues presented, shall last no longer than fifteen (15) business
days, with each side limited to half of the available hearing time for
presentation of its evidence, examination and cross-examination of witnesses and
argument. Except to the extent inconsistent with this Agreement, the hearing
shall be conducted in accordance with the provisions of California Code of Civil
Procedure Sections 1282, et seq., and such other rules of procedure as the
parties may agree upon.
(e) Decision; Costs. The arbitrator shall render a decision
within thirty (30) days after conclusion of the arbitration hearing. The joint
costs of arbitration (such as court reporting costs and the arbitrator's fees)
shall be borne equally by the parties except that the arbitrator, in his or her
discretion, may award such costs and/or reasonable attorney's fees and other
costs to be paid by the losing party to the prevailing party.
13.5 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand, by messenger or
by telecommunication, addressed to the addresses first set forth above or at
such other address furnished with a notice in the manner set forth herein. In
the case of Echelon such notices shall be sent to the Chief Financial Officer
and in the case of Developer any such notices shall be sent to
___________________________, or such other names provided by one party to the
other. Such notices shall be deemed to have been served when delivered or, if
delivery is not accomplished by reason of some fault of the addressee, when
tendered.
13.6 Disclaimer of Agency. This Agreement shall not be construed as
creating an agency, partnership or any other form of legal association between
the parties.
13.7 Partial Invalidity. If any paragraph, provision, or clause thereof
in this Agreement shall be found or be held to be invalid or unenforceable in
any jurisdiction in which this
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Agreement is being performed, the remainder of this Agreement shall be valid and
enforceable and the parties shall negotiate, in good faith, a substitute, valid
and enforceable provision which most nearly effects the parties' intent in
entering into this Agreement. The parties agree that all consideration for the
promises made and obligations undertaken in this Agreement is stated herein and
that neither party executes this Agreement in reliance on representations not
included in this document.
13.8 Complete Understanding. This Agreement, including all Exhibits,
constitutes the entire agreement between the parties with respect to the subject
matter hereof, and supersedes and replaces all prior or contemporaneous
understandings or agreements, written or oral, regarding such subject matter. No
terms of any purchase order issued by Developer shall be deemed to add to,
delete or modify the terms and conditions of this Agreement. No amendment to or
modification of this Agreement will be binding unless in writing and signed by a
duly authorized representative of both parties.
13.9 Export Controls.
(a) Developer understands and acknowledges that Echelon is
subject to regulation by agencies of the U.S. Government, including the U.S.
Department of Commerce, which prohibit export or diversion of certain products
and technology to certain countries. Any and all obligations of Echelon to
provide products as well as any technical assistance shall be subject in all
respects to such United States laws and regulations as shall from time to time
govern the license and delivery of technology and products abroad by persons
subject to the jurisdiction of the United States, including the Export
Administration Act of 1979, as amended any successor legislation, and the Export
Administration Regulations issued by the Department of Commerce, International
Trade Administration, Bureau of Export Administration. Developer agrees to
cooperate with Echelon, including, without limitation, providing required
documentation, in order to obtain export licenses or exemptions therefrom.
Developer warrants that it will comply with the Export Administration
Regulations or other United States laws and regulations in effect from time to
time.
(b) Without in any way limiting the provisions of this
Agreement, Developer agrees that unless prior written authorization is obtained
from the Bureau of Export Administration or the Export Administration
Regulations explicitly permitting the reexport, it will not export, reexport, or
transship, directly or indirectly, to country groups S or Z (as defined in the
Export Administration Regulations and which currently consist of Cambodia, Cuba,
Libya, North Korea, and Vietnam), any of the technical data or software (if the
described on the Control List with a letter "A" following its Export Control ___
Number).
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13.10. Governmental Approval. Developer represents and warrants that no
consent, approval or authorization of or designation, declaration or filing with
any governmental authority is required in connection with the valid execution
and delivery of this Agreement. Alternatively, if any such actions are required,
Developer agrees to use its best efforts to obtain such consent, approval or
authorization and agrees to complete such designation, declaration or filing.
Echelon will cooperate as reasonably requested by Developer for the completion
of such required actions. Developer promptly will provide Echelon with copies of
any documents in connection with such actions.
13.11. United States Dollars. All license fees and royalties under this
Agreement are quoted and to be paid in United States Dollars.
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Agreement Number C2-10519-2
EXHIBIT A-7
LONMANAGER(TM) API/LITE for Windows
EXECUTABLE FILES, DEVELOPMENT PURPOSE AND DEVELOPER'S
PRODUCT
A. The Object Code is the LONMANAGER API/LITE for Windows
Dynamic Link Libraries.
B. "Executable Files" means the LONMANAGER API/LITE for Windows
Dynamic Link Libraries.
C. "Support Files" means the files LB2LM.BAT, LONDB.DBD,
LDB.IMP, LONALT.DBD, LB200.DBD, LB210.DBD, SNVT.TYP,
LDBIMP.EXE, LDBIMP2.EXE, LDBCD.COM, DBIMP.EXE, DBEXP.EXE,
DBCHECK.EXE, AND INITDB.EXE.
D. "Developer's Product" means Developer's computer program(s) that are
designed to operate with Echelon's LONWORKS(TM) technology and
products, provided, that such Developer's Product may not be used in a
network comprised of more than one (1) channel or more than fifty (50)
NEURON(R) Chips. Developer's Product is a computer program.
E. "Development Purpose" means the purpose of incorporating
calls to the Object Code into Developer's Product.
- 14 -
16
Agreement Number C6-10519-2
EXHIBIT A-11
LONMANAGER(R) NSS for Windows(R)
EXECUTABLE FILES, DEVELOPMENT PURPOSE AND DEVELOPER'S PRODUCT
A. The Object Code is the LonManager NSS for Windows Dynamic Link Libraries.
B. "Executable Files" means the LonManager NSS for Windows Dynamic Link
Libraries.
C. "Support Files" means those files listed in the file SUPPORT.TXT in the
LonManager NSS for Windows DOC directory. Support Files also includes the source
code file LDV32.C and the corresponding object code file LDV32.DLL. Developer
shall be entitled to modify the file LDV32.C only for the purpose of adapting
the file LDV32.DLL for use with the Developer's Product, pursuant to the
following terms:
(i) Notwithstanding Section 2.2 of the Software License Agreement,
Developer shall have no right to reproduce (except for backup purposes as
provided in Section 2.1) or distribute the source code file LDV32.C.
(ii) Developer's right to distribute the Support File LDV32.DLL is
limited to the object code either provided by Echelon or the object code
corresponding to Developer's modifications of the source code file LDV32.C in
accordance with the foregoing provisions.
D. "Developer's Product" means Developer's computer program(s) that are designed
to operate with Echelon's LONWORKS(R) technology and products. Developer's
Product is a computer program.
E. "Development Purpose" means the purpose in incorporating calls to the Object
Code into Developer's Product.
- 15 -
17
Agreement Number C8-10519-2
EXHIBIT A-13
LCA Field Compiler API
EXECUTABLE FILES, DEVELOPMENT PURPOSE AND DEVELOPER'S PRODUCT
A. "Object Code" means those files set forth in the file OBJECT.TXT in the
product LICENSE directory.
B. "Executable Files" means those files set forth in the EXECUTE.TXT file in the
product LICENSE directory. As used herein, "Neuron C Compiler" means that subset
of Executable Files identified in EXECUTE.TXT associated with the LCA Neuron C
Compiler and "Neuron C Debugger" means that subset of Executable Files
identified in EXECUTE.TXT associated with the LCA Neuron C Debugger.
C. "Support Files" means those files listed in the file SUPPORT.TXT in the
product LICENSE directory.
D. "Developer's Product" means Developer's computer program(s), solely in
executable form, that are designed to operate with Echelon's LONWORKS(R)
technology and products. Developer's Product is a computer program. Developer's
Product shall exclude (i) general purpose development systems for developing
applications that use Echelon's LonTalk(R) Protocol, (ii) development systems
for developing computer programs written in programming languages that are
primarily text-based, including, but not limited to, Neuron C, C, C++, Ada,
Forth, Pascal, Basic, Fortran, Assembly, and similar languages, or (iii)
applications that generate images to be loaded into programmable or
mask-programmed read-only memory (PROM or ROM).
E. "Development Purpose" means the purpose of incorporating calls to the Object
Code into Developer's Product.
F. Additional software that is not designated as Object Code, Support Files or
Utilities will be provided in the EXA or EXAMPLES directories and their
subdirectories. Developer shall have the right to use, modify, reproduce and
distribute such software, in binary form only, solely for use with Developer's
Product. Except as specifically modified by the previous sentence, such software
shall be considered to be the Licensed Software for all purposes under this
Agreement except that the indemnity set forth in Section 11 shall not apply to
such software, AND ECHELON DISCLAIMS ANY WARRANTY OF NONINFRINGEMENT WITH
RESPECT TO SUCH SOFTWARE.
G. For the purposes of the LCA Field Compiler API, Section 2.1 is replaced with
the following: "2.1 Object Code. Echelon hereby grants Developer a
non-exclusive, nontransferable license to use the Object Code solely for the
Development Purpose, and to use the Documentation, Support Files and Utilities
to support
- 16 -
18
such efforts. Developer may make up to three (3) copies of the Licensed Software
solely to exercise the rights granted above and one (1) copy of the Licensed
Software for backup purposes."
H. For the purposes of the LCA Field Compiler API, add the following sentences
to the end of Section 4.2(a): "Royalty rates for Developer's Product are
initially fixed as follows: (A) for royalty level 1, the royalty rates set forth
in Exhibit C-13 shall be fixed for the shorter of: (1) a period of three (3)
years after the first day of the calendar quarter in which royalties first
accrue under this Exhibit C-13, or (2) a period of four (4) years after the date
this Exhibit A-13 has been signed by both parties; and (B) for royalty levels
other than level 1, the royalty rates shall be fixed until the end of the
quarter during which the applicable prepayment is exhausted. In subsequent
quarters, Developer's royalty level shall be at level 1 of the then current
Exhibit C-13 (or successor), unless Developer changes to a different level by
making a new nonrefundable prepayment prior to the start of the calendar quarter
pursuant to the then current Exhibit C-13 (or successor). From time to time
Echelon shall provide Developer with a copy of the then current Exhibit C-13 (or
successor)."
I. For the purposes of the LCA Field Compiler API, add the following to the end
of Section 8.1 "Developer shall ensure that Documentation and technical
literature for Developer's Product shall identify the version numbers of the LCA
Field Compiler API components as described in the Product Marking Requirements
appendix of the LCA Field Compiler API Programmer's Guide. If the appendix is
not include in the programmer's guide, then the version numbers of the Neuron C
Compiler, Neuron C Debugger (if supported), Neuron Chip firmware, and the Debug
Kernel shall be identified."
- 17 -
19
Agreement Number C8-15019-2
EXHIBIT A-13 (continued)
LCA Field Compiler API
EXECUTABLE FILES, DEVELOPMENT PURPOSE AND DEVELOPER'S PRODUCT
J. For the purposes of the LCA Field Compiler API, Section 5 is replaced in its
entirety with the following:
5. SUPPORT
5.1 Definition. "Support" means (i) responses to inquiries regarding
the use of the Licensed Software when such inquiries are submitted via either
telephone, electronic mail, or facsimile during Echelon's business hours, and
(ii) updates to the Licensed Software that Echelon provides generally to its
support customers for no additional fee other than the support fee all as
further described in the LonSupport for LNS/LCA Program Services document.
Echelon's business hours are Monday through Friday, 8:00 to 16:30, Pacific time
in the US, 9:00 to 17:00 Greenwich Mean Time in Europe and 9:00 to 17:00 in
Japan. Services is not available on Echelon's regularly scheduled holidays. When
Echelon does not respond immediately to a Support inquiry, Echelon will use
reasonable efforts to respond within four (4) business hours of receipt in the
US and Japan, and eight (8) business hours in Europe. Developer may designate up
to three individuals who may place support calls with Echelon.
5.2 Term and Renewal. For a period of one (1) year after the date that
Exhibit A-13 has been signed by both parties (the "Support Period"), Echelon
will provide Support to Developer at no additional charge other than the license
fee. At least sixty (60) days prior to the end of then current Support term,
Echelon will provide Developer with Echelon's then current policies and prices
and issue an invoice to Developer for a twelve (12) month renewal term.
Developer may renew Support by paying the amount of the invoice or by issuing a
purchase order therefor on or before the last day of the then current term. If
Developer fails to renew the Support, the Support will automatically terminate
at the end of the then current term (and notwithstanding any failure of Echelon
to provide notice under this Section 5.2). If Developer allows the Support to
terminate without renewal and subsequently orders Support, than such Support
shall again be governed by this Agreement and the then current Echelon standard
policies and prices for Support.
5.3 Updates. Developer agrees that any Licensed Software update or
upgrade (the "Replacement Software") provided by Echelon is subject to this
Agreement (whether provided as part of Support or for a separate fee). In the
event that Echelon provides Developer with Replacement Software, then Developer
agrees to destroy all copies of the prior release of the applicable Licensed
Software within thirty (30) days after
- 18 -
20
receipt of Replacement Software; provided, however, that Developer may retain
one copy of the prior release for backup, archival and support purposes.
ECHELON CORPORATION DEVELOPER: Dayton General
Systems
Signature:/s/ Oliver R. Stanfield Signature:/s/ Vernon F. Brannon
- --------------------------------- -------------------------------
Oliver R. Stanfield Vernon F. Brannon
------------------------------- -------------------------------
(Print Name) (Print Name)
Title: Vice President & CFO Title: President
--------------------------- ----------------
Date: 2-2-96 Date: 2-2-96
------ ------
- 19 -
21
Agreement Number C8-10519-2
EXHIBIT A-14U
NSS for Windows Upgrade to LNS Developer's Network Management
Used With Visual ControlKit for Windows(R)
EXECUTABLE FILES, DEVELOPMENT PURPOSE AND DEVELOPER'S PRODUCT
A. "Object Code" means those files set forth in the file OBJECT.TXT in the
product LICENSE directory.
B. "Executable Files" means those files set forth in the EXECUTE.TXT file in the
product LICENSE directory.
C. "Support Files" means those files listed in the file SUPPORT.TXT in the
product LICENSE directory.
D. "Developer's Product" means Developer's computer program(s), solely in
executable form, that are designed to operate with Echelon's LONWORKS(R)
technology and products. Developer's Product is a computer program.
E. "Development Purpose" means the purpose of incorporating calls to the Object
Code into Developer's Product.
F. Additional software that is not designated as Object Code, Support Files or
Utilities will be provided in the EXA or EXAMPLES directories and their
subdirectories. Developer shall have the right to use, modify, reproduce and
distribute such software, in binary form only, solely for use with Developer's
Product. Except as specifically modified by the previous sentence, such software
shall be considered to be the Licensed Software for all purposes under this
Agreement except that the indemnity set forth in Section 11 shall not apply to
such software, AND ECHELON DISCLAIMS ANY WARRANTY OF NONINFRINGEMENT WITH
RESPECT TO SUCH SOFTWARE.
G. For the purposes of the LNS Developer's Kit for Windows, Section 2.1 is
replaced with the following: "2.1 Object Code. Echelon hereby grants Developer a
non-exclusive, nontransferable license to use the Object Code solely for the
Development Purpose, and to use the Documentation, Support Files and Utilities
to support such efforts. Developer may make up to three (3) copies of the
Licensed Software solely to exercise the rights granted above and one (1) copy
of the Licensed Software for backup purposes."
H. For the purposes of the LNS Developer's Kit for Windows, add the following
sentences to the end of Section 4.2(a): "Royalty rates for Developer's Product
are initially fixed as follows: (A) for royalty level 1, the royalty rates set
forth in Exhibit C-14U shall be fixed for the shorter of: (1) a period of three
(3) years after the first day of the calendar quarter in which
- 20 -
22
royalties first accrue under this Exhibit C-14U, or (2) a period of four (4)
years after the date this Exhibit A-14U has been signed by both parties; and (B)
for royalty levels other than level 1, the royalty rates shall be fixed until
the end of the quarter during which the applicable prepayment is exhausted. In
subsequent quarters, Developer's royalty level shall be at level 1 of the then
current Exhibit C-14U (or successor), unless Developer changes to a different
level by making a new nonrefundable prepayment prior to the start of the
calendar quarter pursuant to the then current Exhibit C-14U (or successor). From
time to time Echelon shall provide Developer with a copy of the then current
Exhibit C-14U (or successor)."
- 21 -
23
Agreement Number C8-10519-2
EXHIBIT A-14U (continued)
NSS for Windows Upgrade to LNS Developer's Kit for Windows(R)
EXECUTABLE FILES, DEVELOPMENT PURPOSE AND DEVELOPER'S PRODUCT
I. For the purposes of the LNS Developer's Kit for Windows, Section 5 is
replaced in its entirety with the following:
5. SUPPORT.
5.1 Definition. "Support" means (i) responses to inquiries regarding
the use of the Licensed Software when such inquiries are submitted via either
telephone, electronic mail, or facsimile during Echelon's business hours, and
(ii) updates to the Licensed Software that Echelon provides generally to its
support customers for no additional fee other than the support fee all as
further described in the LonSupport for LNS/LCA Program Services document.
Echelon's business hours are Monday through Friday, 8:00 to 16:30, Pacific time
in the US, 9:00 to 17:00 Greenwich Mean Time in Europe and 9:00 to 17:00 in
Japan. Service is not available on Echelon's regularly scheduled holidays. When
Echelon does not respond immediately to a Support inquiry, Echelon will use
reasonable efforts to respond within four (4) business hours of receipt in the
US and Japan, and eight (8) business hours in Europe. Developer may designate up
to three individuals who may place support calls with Echelon.
5.2 Term and Renewal. Developer has the right to separately order
LonSupport for LNS/LCA for one year periods according to these terms and
conditions and at Echelon's then current prices. At least sixty (60) days prior
to the end of the then current Support term, Echelon will provide Developer with
Echelon's then current policies and prices and issue an invoice to Developer for
a twelve (12) month renewal term. Developer may renew Support by paying the
amount of the invoice or by issuing a purchase order therefor on or before the
last day of the then current term. If developer fails to renew the Support, the
Support will automatically terminate at the end of the then current term (and
notwithstanding any failure of Echelon to provide notice under this Section
5.2). If Developer allows the Support to terminate without renewal and
subsequently orders Support, then such Support shall again be governed by this
Agreement and the then current Echelon standard policies and prices for Support.
5.3 Updates. Developer agrees that any Licensed Software update or
upgrade (the "Replacement Software") provided by Echelon is subject to this
Agreement (whether provided as part of Support or for a separate fee). In the
event that Echelon provides Developer with Replacement Software, then Developer
agrees to destroy all copies of the prior release of the applicable Licensed
Software within thirty (30) days after
- 22 -
24
receipt of Replacement Software; provided, however, that Developer may retain
one copy of the prior release for backup, archival and support purposes.
ECHELON CORPORATION DEVELOPER: DGS, Inc.
Signature:/s/ Oliver R. Stanfield Signature:/s/ Daniel B. Lackey
---------------------------- -----------------------
Oliver R. Stanfield Daniel B. Lackey
------------------- ----------------
(Print Name) (Print Name)
Title: Vice President Title: Secretary
--------------------- ----------------
Date: Nov. 5, 1996 Date: 10/30/96
----------------- -------------
Windows is a registered trademark of Microsoft Corporation.
- 23 -
25
Agreement Number
C2-10519-2
EXHIBIT B-7
LONMANAGER(TM) API/LITE for Windows
API LICENSE FEES
Licensed Software
Echelon Model
No. License Fee
Description Quantity
- --------------- ------------------------------------- -------- -----------
31400 LONMANAGER API/Lite for Windows 1 $9,450
A. Echelon has notified Developer that the LONMANAGER API/LITE for
Windows Licensed Software is not currently released for shipment. In order to
enable Developer to commence development and distribution of Developer's Product
incorporating the Executable Files under the terms of this Agreement, Echelon
has agreed to provide Developer with Echelon's API for Windows Licensed Software
on a temporary basis. Developer acknowledges that the following functions that
are resident in Echelon's API for Windows Object Code will not be resident in
the API/Lite for Windows Object Code when it is released (the "Reserved
Functions"):
ldb_build_load_order ldb_calc_timers
ldb_configure_rtr ldb_free_topology_data
ldb_get_chan_order ldb_get_chan_order_list
ldb_get_conflicting_routers ldb_get_redundant_rtrs
ldb_get_segments ldb_get_srve_pin_domain
ldb_get_topology_limits ldb_recalc_topology
ldb_rtr_in_path ldb_set_topology_limits
lon_rtr_prog_id lxt_build_load_order
lxt_check_all_rtr_config lxt_check_rtr_config
lxt_check_source_chan lxt_configure_rtr
lxt_configure_rtr_subnet lxt_get_msg_domain
lxt_get_rtr_srvc_pin lxt_install_rtr
lxt_get_srvc_pin_domain lxt_merge_subnet
lxt_merge_domain lxt_router_down_side
lxt_replace_rtr_domain ldb_get_near_chan
lxt_router_near_side
B. Developer agrees that it will not incorporate the Reserved Functions
in Executable Files produced under this Agreement and to return all copies of
the API for Windows Licensed Software to Echelon within thirty (30) days of
Developer's receipt of the API/Lite for Windows Licensed Software
ECHELON CORPORATION DEVELOPER
ECHELON CORPORATION DEVELOPER
By:/s/ Oliver R. Stanfield By:/s/ Vernon F. Brannon
------------------------------- ------------------------
Oliver R. Stanfield Vernon F. Brannon
-------------------------------- -------------------------
(Print Name) (Print Name)
Title: Vice President & CFO Title: President
-------------------------- -------------------
Date: 12-27-93 Date: 12-7-93
-------------- -------------
- 24 -
26
Agreement Number
C6-10519-2
EXHIBIT B-11
LONMANAGER(TM) NS for Windows(C)
API LICENSE FEES
Licensed Software
Echelon Model
No. License Fee
Description Quantity
- --------------- ------------------------------------- -------- -----------
34300 LONMANAGER NSS for Windows 1 $2,495
A. Echelon has notified Developer that the LONMANAGER NSS for Windows
Licensed Software is not currently released for shipment. In order to enable
Developer to commence development and distribution of Developer's Product
incorporating the Executable Files under the terms of this Agreement, Echelon
has agreed to provide Developer with a prototype version of Echelon's LonManager
NSS for Windows (the "Prototype Product") on a temporary basis.
Developer acknowledges that the LonManager NSS for Windows Licensed Software may
be different than the Prototype Product provided hereunder. Developer may
reproduce and distribute up to twenty-five (25) copies of Developer's Product
using the Prototype Product solely for beta testing purposes and no royalty
shall be due for such beta copies under section 4.2 but such beta copies shall
otherwise be subject to all terms and conditions of this Agreement. Developer
agrees that it will recall such copies of Developer's Product from its beta test
customers promptly upon release by Echelon of the commercial version of the
Licensed Software, but in any event not later than twelve (12) months after the
date of this Agreement. Developer agreed that Echelon will own all rights, title
and interest in and to any modifications to the Licensed Software resulting from
Developer comments on the Prototype Product.
B. Developer agrees that Echelon may publish Developer's company name
as a participant in the NSS for Windows Early Access Program.
ECHELON CORPORATION DEVELOPER
By:/s/ Oliver R. Stanfield By:/s/ Vernon F. Brannon
------------------------------- ------------------------
Oliver R. Stanfield Vernon F. Brannon
-------------------------------- -------------------------
(Print Name) (Print Name)
Title: Vice President & CFO Title: President
-------------------------- -------------------
Date: 7-31-95 Date: 7-31-95
---------------------------- ---------------------
- 25 -
27
Agreement Number
C6-10519-2
EXHIBIT B-13
LCA Field Compiler API
LICENSE FEES
Licensed Software
Echelon Model
No. License Fee
Description Quantity
- ----------- --------------------------- -------- ------------
33300 LCA Field Compiler API 1 $4,995
A. As of the date of this Agreement, Developer designates the following
individual to fulfill Developer's royalty reporting requirements under this
Agreement.
Name: Vernon F. Brannon Title: President
Address: 2492 Technical Drive Phone #: (513) 847-7800
Miamisburg, OH 45342 Fax #: (513) 847-7810
Developer agrees to notify Echelon of any change in the above information.
ECHELON CORPORATION DEVELOPER
By:/s/ Oliver R. Stanfield By:/s/ Vernon F. Brannon
------------------------------- ------------------------
Oliver R. Stanfield Vernon F. Brannon
-------------------------------- -------------------------
(Print Name) (Print Name)
Title: Vice President & CFO Title: President
-------------------------- -------------------
Date: 2/2/96 Date: 2 Feb 1996
--------------------------- --------------------
- 26 -
28
Agreement Number
C8-
EXHIBIT B-14U
NSS for Windows Upgrade to LNS Developer's Kit for Windows(C)
LICENSE FEES
Licensed Software
Echelon Model
No. License Fee
Description Quantity
- ----------- ------------------------------- -------- -----------
34301-05 NSS for Windows Upgrade to LNS 1 $1,750
Developer's Kit for Windows
A. Developer agrees that its rights with respect to the LonManager NSS
for Windows product under the Agreement and Exhibits A-11, B-11, and C-11, or
the LonManager(R) NSS for Windows(R) Early Access Program Agreement, as
applicable, are hereby terminated.
Echelon has notified Developer that the LNS Developer's Kit for Windows Licensed
Software is not currently released for shipment. In order to enable Developer to
commence development and distribution of Developer's Product incorporating the
Executable Files under the terms of this Agreement, Echelon has agreed to
provide Developer with a prototype version of Echelon's LNS Developer's Kit for
Windows (the "Prototype Product") on a temporary basis.
Developer acknowledges that the LNS Developer's Kit for Windows Licensed
Software may be different than the Prototype Product provided hereunder.
Developer may reproduce and distribute up to twenty-five (25) copies of
Developer's Product using the Prototype Product solely for beta testing purposes
and no royalty shall be due for such beta copies under section 4.2 but such beta
copies shall otherwise be subject to all terms and conditions of this Agreement.
Developer agrees that it will recall such copies of Developer's Product from its
beta test customers promptly upon release by Echelon of the commercial version
of the Licensed Software, but in any event not later than twelve (12) months
after the date of this Agreement. Developer agrees that Echelon will own all
rights, title and interest in and to any modifications to the Licensed Software
resulting from Developer comments on the Prototype Product.
B. Developer agrees that Echelon may publish Developer's company name
as a participant in the LNS Early Access Program.
C. As of the date of this Agreement, Developer designates the following
individual to fulfill Developer's royalty reporting requirements under this
Agreement.
Name: Daniel B. Lackey Title: Secretary
Address: 2492 Technical Drive Phone #: 937-847-7800
Miamisburg, OH 45342 Fax #: 937-847-7810
Developer agrees to notify Echelon of any change in the above information.
ECHELON CORPORATION DEVELOPER
Signature:/s/ Oliver R. Stanfield Signature:/s/ Daniel B. Lackey
-------------------------- -------------------------
Oliver R. Stanfield Daniel B. Lackey
----------------------------- ----------------------------
(Print Name) (Print Name)
Title: Vice President & CFO Title: Secretary
----------------------------- ----------------------------
Date: Nov. 5, 1996 Date: 10/30/96
----------------------------- ----------------------------
- 27 -
29
Agreement Number
C2-10519-2
EXHIBIT C-7
LONMANAGER(TM) API/LITE for Windows
API ROYALTIES
A. Royalties.
Licensed
Software
Echelon
Model No. Description Royalty
- --------- ----------- -------
31400-1 LONMANAGER API.LITE for Windows Royalty Level 1 $60
31400-2 LONMANAGER API.LITE for Windows Royalty Level 2 $55
31400-3 LONMANAGER API.LITE for Windows Royalty Level 3 $50
31400-4 LONMANAGER API.LITE for Windows Royalty Level 4 $45
31400-5 LONMANAGER API.LITE for Windows Royalty Level 5 $36
31400-6 LONMANAGER API.LITE for Windows Royalty Level 6 $30
31400-7 LONMANAGER API.LITE for Windows Royalty Level 7 $27
31400-8 LONMANAGER API.LITE for Windows Royalty Level 8 $24
31400-9 LONMANAGER API.LITE for Windows Royalty Level 9 $21
31400-10 LONMANAGER API.LITE for Windows Royalty Level 10 $18
Unit Volume
Item Commitment Level
---- ----------------
LONMANAGER API.LITE for Windows Royalty Level 1 Less than 25
LONMANAGER API.LITE for Windows Royalty Level 2 25 to 99 inclusive
LONMANAGER API.LITE for Windows Royalty Level 3 100 to 249 inclusive
LONMANAGER API.LITE for Windows Royalty Level 4 250 to 999 inclusive
LONMANAGER API.LITE for Windows Royalty Level 5 1,000 to 2,499 inclusive
LONMANAGER API.LITE for Windows Royalty Level 6 2,500 to 4,999 inclusive
LONMANAGER API.LITE for Windows Royalty Level 7 5,000 to 9,999 inclusive
LONMANAGER API.LITE for Windows Royalty Level 8 10,000 to 24,999 inclusive
LONMANAGER API.LITE for Windows Royalty Level 9 25,000 to 49,999 inclusive
LONMANAGER API.LITE for Windows Royalty Level 10 50,000 or more
B. For the first year of this Agreement, Developer's royalty will be
based on Developer's expected volume for such year. For each subsequent year of
this Agreement,, Developer's royalty will be based on the volume actually
achieved in the previous year.
C. Developer's expected volume for the first year of this Agreement as
mutually agreed with Echelon is __________________. If no volume level is set
forth in the previous sentence, then Developer shall be deemed to have specified
level 1.
ECHELON CORPORATION DEVELOPER
Signature:/s/ Oliver R. Stanfield Signature:/s/ Vernon F. Brannon
-------------------------- ---------------------------
Oliver R. Stanfield Vernon F. Brannon
---------------------------------- -----------------------------------
(Print Name) (Print Name)
Title: Vice President & CFO Title: President
----------------------------- ------------------------------
Date: 12-27-93 Date: 12-7-93
----------------------------- ------------------------------
- 28 -
30
Agreement Number
C6-10519-2
EXHIBIT C-11
LONMANAGER(TM) NSS for Windows(TM)
ROYALTIES
A. Royalties.
As used herein, "Node" means a device that implements layers 1 through
6 of the LonTalk Protocol. Developer's royalty payment for each copy of an
Executable File that is distributed by or for Developer shall be based on the
number of Nodes that the Executable File can access as set forth in the table
below. An Executable File shall be deemed to have unlimited Node capacity unless
Developer explicitly restricts the capacity of the Executable File either by
implementing source code that prevents the user from creating and accessing
networks with more than 64 Nodes or by implementing any other method for
achieving such limitation as described in the Documentation.
Royalty Annual Unit Volume Unlimited Node 64 Node
Level Commitment Level Capacity Capacity
----- ---------------- -------- --------
1 Less than 25 $150.00 $45.00
2 25 to 99 inclusive $135.00 $40.50
3 100 to 249 inclusive $120.00 $36.00
4 250 to 999 inclusive $105.00 $31.50
5 1,000 to 2,499 inclusive $ 90.00 $27.00
6 2,500 to 4,999 inclusive $ 75.00 $22.50
7 5,000 to 9,999 inclusive $ 67.50 $20.25
8 10,000 to 24,999 inclusive $ 60.00 $18.00
9 25,000 to 49,999 inclusive $ 52.50 $15.75
10 50,000 to 74,999 inclusive $ 45.00 $13.50
11 75,000 to 99,999 inclusive $ 37.50 $11.25
12 100,000 to 249,999 inclusive $ 33.75 $10.13
13 250,000 to 499,999 inclusive $ 30.00 $ 9.00
14 500,000 to 999,999 inclusive $ 26.25 $ 7.88
15 1,000,000 to 1,499,999 inclusive $ 22.50 $ 6.75
16 1,500,000 and greater $ 18.75 $ 5.63
B. For the first year of this Agreement, Developer's royalty will be based on
Developer's expected volume for such year. Developer's volume will be calculated
as the sum of all royalty-bearing Executable Files distributed by or for
Developer under this Agreement. For each subsequent year of this Agreement,
Developer's royalty will be based on the volume actually achieved in the
previous year.
C. Developer's expected volume for the first year of this Agreement as mutually
agreed with Echelon is __________________. If no volume level is set forth in
the previous sentence, then Developer shall be deemed to have specified level 1.
D. As of the date of this Agreement, Developer designates the following
individual to fulfill Developer's royalty reporting requirements under this
Agreement:
Name: Title:
----------------------------- ----------------------------------
Address: Phone #:
--------------------------- ----------------------------------
Fax #:
----------------------------- ----------------------------------
Developer agrees to notify Echelon of any change in the above information.
- 29 -
31
Agreement Number
C6-10519-2
EXHIBIT C-11 (cont.)
LONMANAGER(TM) NSS for Windows(C)
ROYALTIES
E. For the purposes of the LonManager NSS for Windows, add the following new
Section 4.2(d):
"(d) As used herein, "Node" means a device that implements layers 1
through 6 of the LonTalk Protocol and "Demonstration Copy" means a version of
Developer's Product that includes any Executable Files that is (i) distributed
for pre-sales, marketing purposes only to Developer's potential customers, (ii)
distributed for no fee (or for media and handling charges only), and (iii) can
install and manage only two Nodes. Notwithstanding paragraph (a) above, no
royalty will be payable for a reasonable number of Demonstration Copies
distributed by or for Developer. Developer shall submit to Echelon within thirty
(30) days after the end of each calendar quarter or part thereof during the term
of this Agreement a reasonably detailed report for the quarter of the number of
Demonstration Copies distributed by or for Developer. All other terms of this
Agreement remain in effect with respect to Demonstration Copies, including but
not limited to Section 3, END USER LICENSE RESTRICTIONS."
F. For the purposes of the LonManager NSS for Windows, add the following new
Section 4.2(e):
"(e) If Echelon provides Replacement Software (as defined in Section 5)
to Developer for no fee (or for media and handling charges only), and if
Developer distributes such Replacement Software to its existing licensees of the
Executable Files for no fee (or for media and handling charges only), then no
royalty shall be due for such Replacement Software. If Echelon charges a fee
(other than media and handling charges only) for such Replacement Software,
and/or if Developer charges its customers a fee (other than media and handling
charges only) for such Replacement Software, and such Replacement Software is
distributed to Developer's existing licensees of the Executable Files, then the
royalty due for such Replacement Software shall be 15% of the royalty due by
Developer according to the level set forth in item A. In any event, the standard
royalty shall be due for copies of Replacement Software that are distributed to
customers that are not existing licensees of the Executable Files."
ECHELON CORPORATION DEVELOPER
Signature:/s/ Oliver R. Stanfield Signature:/s/ Vernon F. Brannon
----------------------------- ------------------------
Oliver R. Stanfield Vernon F. Brannon
- --------------------------------------- --------------------------------
(Print Name) (Print Name)
Title: Vice President & CFO Title: President
-------------------------------- ------------------------
Date: 7-31-95 Date: 7-31-95
-------------------------------- ---------------------------------
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32
Agreement Number
C8-10519-2
EXHIBIT C-13
LCA Field Compiler API
ROYALTIES
A. Royalties.
Royalty Prepaid Neuron C Neuron C
Level Royalties Compiler Debugger
----- --------- -------- --------
1 None $800.00 $400.00
2 $15,000 $360.00 $180.00
B. The royalties set forth above vary with the amount of nonrefundable
prepayment made by Developer. In order to select a royalty level 2, Developer
shall pre-pay royalties to Echelon as set forth above. Such prepayment is
creditable at the rate of 100% against royalties payable by Developer to Echelon
under this Agreement, SOLELY FOR DEVELOPER'S PRODUCT UNDER THIS EXHIBIT C-13 (or
successor). Any such credit shall be shown by Developer in its royalty reports
required hereunder. In the quarter that such prepayment is exhausted,
Developer's royalty obligation for additional copies of Developer's Product in
such quarter shall remain at level 2. In subsequent quarters, Developer's
royalty level shall be at level 1 of the then current Exhibit C-13 (or
successor), unless Developer changes to a different level by making a new
nonrefundable prepayment prior to the start of the calendar quarter pursuant to
the then current Exhibit C-13 (or successor).
C. For the purposes of the LCA Field Compiler API, add the following new Section
4.2(d):
"(e) If Echelon provides Replacement Software (as defined in Section 5)
to Developer for no fee (or for media and handling charges only), and if
Developer distributes such Replacement Software to its existing licenses of the
Executable Files for no fee (or for media and handling charges only), then no
royalty shall be due for such Replacement Software. If Echelon charges a fee
(other than media and handling charges only) for such Replacement Software,
and/or if Developer charges its customers a fee (other than media and handling
charges only) for such Replacement Software, and such Replacement Software is
distributed to Developer's existing licensees of the Executable Files, then the
royalty due for such Replacement Software shall be 15% of the royalty due by
Developer according to the level set forth in item A. In any event, the standard
royalty shall be due for copies of Replacement Software that are distributed to
customers that are no existing licensees of the Executable Files."
ECHELON CORPORATION DEVELOPER
Signature:/s/ Oliver R. Stanfield Signature:/s/ Vernon F. Brannon
---------------------------- ----------------------
Oliver R. Stanfield Vernon F. Brannon
- -------------------------------------- --------------------------------
(Print Name) (Print Name)
Title: Vice President & CFO Title: President
------------------------------- -------------------------
Date: 2/2/96 Date: 2 Feb 1996
-------------------------------- ----------------------------------
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33
Agreement Number
C8-
EXHIBIT C-14U
NSS for Windows Upgrade to LNS Developer's Kit for Windows(C)
ROYALTIES
A. Royalties.
As used herein, "Node" means a device that implements layers 1 through
6 of the LonTalk Protocol. Developer's royalty payment for each copy of an
Executable File that is distributed by or for Developer shall be based on the
number of Nodes that the Executable File can access as set forth in the table
below. An Executable File shall be deemed to have 32,385 Node capacity unless
Developer explicitly restricts the capacity of the Executable File either by
implementing source code that prevents the user from creating and accessing
networks with more than a fixed number of nodes or by implementing any other
method for achieving such limitation as described in the Documentation.
Royalty Prepaid 32 Node 256 Node 1,024 Node 4,096 Node 8,192 Node 32,385 Node
Level Royalties Capacity Capacity Capacity Capacity Capacity Capacity
----- --------- -------- -------- -------- -------- -------- --------
1 None $ 56.00 $ 119.00 $ 250.00 $ 445.00 $ 750.00 $1,950.00
2 $ 15,000 $ 25.20 $ 53.55 $ 112.50 $ 204.75 $ 337.50 $ 877.50
3 $ 50,000 $ 18.48 $ 39.27 $ 82.50 $ 150.15 $ 247.50 $ 643.50
4 $150,000 $ 13.44 $ 28.56 $ 60.00 $ 109.20 $ 180.00 $ 468.00
5 $500,000 $ 8.96 $ 19.04 $ 40.00 $ 72.80 $ 120.00 $ 312.00
B. The royalties set forth above vary with the amount of nonrefundable
prepayment made by Developer. In order to select a royalty level other than 1,
Developer shall pre-pay royalties to Echelon at the level chosen by Developer.
Such prepayment is creditable at the rate of 100% against royalties payable by
Developer to Echelon under this Agreement SOLELY FOR DEVELOPER'S PRODUCT UNDER
THIS EXHIBIT C-14U (or successor). Any such credit shall be shown by Developer
in its royalty reports required hereunder. In the quarter that such prepayment
is exhausted, Developer's royalty obligation for additional copies of
Developer's Product in such quarter shall be at the level that corresponds to
such prior prepayment. In subsequent quarters, Developer's royalty level shall
be at level 1 of the then current Exhibit C-14U (or successor), unless Developer
changes to a different level by making a new nonrefundable prepayment prior to
the start of the calendar quarter pursuant to the then current Exhibit C-14U (or
successor).
C. For the purposes of the LNS Developer's Kit for Windows, add the following
new Section 4.2(d):
"(d) As used herein, "Node" means a device that implements layers 1
through 6 of the LonTalk Protocol and "Demonstration Copy" means a version of
Developer's Product that includes any Executable Files that is (i) distributed
for pre-sales, marketing purposes only to Developer's potential customers, (ii)
distributed for no fee (or for media and handling charges only), and (iii) can
install and manage only two Nodes. Notwithstanding paragraph (a) above, no
royalty will be payable for a reasonable number of Demonstration Copies
distributed by or for Developer. Developer shall submit to Echelon within thirty
(30) days after the end of each calendar quarter or part thereof during the term
of this Agreement a reasonably detailed report for the quarter of the number of
Demonstration Copies distributed by or for Developer. All other terms of this
Agreement remain in effect with respect to Demonstration Copies, including but
not limited to Section 3, END USER LICENSE RESTRICTIONS."
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34
Agreement Number
C8-10519-2
EXHIBIT C-14U (continued)
NSS for Windows Upgrade to LNS Developer's Kit for Windows
ROYALTIES
D. For the purposes of the LNS Developer's Kit for Windows, add the following
new Section 4.2(e):
"(e) If Echelon provides Replacement Software (as defined in Section 5)
to Developer for no fee (or for media and handling charges only), and if
Developer distributes such Replacement Software to its existing licenses of the
Executable Files for no fee (or for media and handling charges only), then no
royalty shall be due for such Replacement Software. If Echelon charges a fee
(other than media and handling charges only) for such Replacement Software,
and/or if Developer charges its customers a fee (other than media and handling
charges only) for such Replacement Software, and such Replacement Software is
distributed to Developer's existing licensees of the Executable Files, then the
royalty due for such Replacement Software shall be 15% of the royalty due by
Developer according to the level set forth in item A. In any event, the standard
royalty shall be due for copies of Replacement Software that are distributed to
customers that are not existing licensees of the Executable Files."
ECHELON CORPORATION DEVELOPER
Signature:/s/ Oliver R. Stanfield Signature:/s/ Daniel B. Lackey
Oliver R. Stanfield Daniel B. Lackey
(Print Name) (Print Name)
Title: Vice President & CFO Title: Secretary
Date: Nov. 5, 1996 Date: 10/30/96
- 33 -
35
Agreement Number
C8-10519-2
EXHIBIT D
END USE LICENSE RESTRICTIONS
All end user licenses of Developer's Product shall include provisions
that:
(1) only a non-exclusive, non-transferable license to use the copy of
the software on either (a) a single computer, or (b) a network server for access
by one user, by way of a terminal or computer attached to the network server, is
granted. Should the user choose to install the software on additional computers,
or increase user access via a network server, the user must first acquire a
license for each additional such computer or user who will use the software, as
applicable, with the understanding that at any one time (and regardless of the
number of media sets included with the software), the number of computers on
which the software is installed or users who are permitted to use the software,
as applicable, may not exceed the number of single-user licenses that the user
has;
(2) Developer or its suppliers retains all title and copyrights to the
software, and all copies thereof, and the license is not a sale;
(3) the end user may not copy the software, except for one (1) copy of
the software solely for backup purposes and provided that the end user
reproduces proprietary notices on the copy;
(4) the end user may not modify, translate, reverse assemble,
decompile, or disassemble the software;
(5) use, duplication or disclosure by the U.S. Government is subject to
restrictions as set forth in DOD FARS 252.227-7013 or FAR 52.227, as applicable,
or equivalent rights;
(6) Echelon is a direct and intended beneficiary of the license
agreement and may enforce it directly against the end user;
(7) Echelon shall not be liable to the end user for any loss of data,
lost profits, cost of cover or other special, incidental, punitive,
consequential, or indirect damages arising out of the use of the software;
(8) Echelon makes no warranties, express, implied or statutory,
regarding the software, including without limitation the implied warranties of
merchantability and fitness for a particular purpose;
(9) the end user's rights with respect to the software may be
terminated, either immediately or after a notice period not exceeding thirty
(30) days, upon unauthorized copying of the software or failure to comply with
the restrictions contained in the license agreement; and
(10) upon termination of the license, the end user shall return all
copies of the software to the party from which the software was acquired.
Echelon may be referred to as Developer's supplier.
- 34 -
36
Agreement Number
C2-10519-2
EXHIBIT D
END USER LICENSE RESTRICTIONS
All end user licenses of Developer's Product shall include provisions
that:
(1) only a non-exclusive, non-transferable license to use the copy of
the software provided on a single computer is granted;
(2) the software may not be used by more than one user at a time, or in
a network or multi-user system;
(3) Developer or its suppliers retains all title and copyrights to the
software, and all copies thereof, and the license is not a sale;
(4) the end user may not copy the software, except for one (1) copy of
the software solely for backup purposes and provided that the end user
reproduces proprietary notices on the copy;
(5) the end user may not modify, translate, reverse assemble,
decompile, or disassemble the software;
(6) use, duplication or disclosure by the U.S. Government is subject to
restrictions as set forth in DOD FARS 252.227-7013 or FAR 52.227, as applicable,
or equivalent rights;
(7) Echelon is a direct and intended beneficiary of the license
agreement and may enforce it directly against the end user;
(8) Echelon shall not be liable to the end user for any loss of data,
lost profits, cost of cover or other special, incidental, punitive,
consequential, or indirect damages arising out of the use of the software;
(9) Echelon makes no warranties, express, implied or statutory,
regarding the software, including without limitation the implied warranties of
merchantability and fitness for a particular purpose;
(10) the end user's rights with respect to the software may be
terminated, either immediately or after a notice period not exceeding thirty
(30) days, upon unauthorized copying of the software or failure to comply with
the restrictions contained in the license agreement;
(11) upon termination of the license, the end user shall return all
copies of the software to the party from which the software was acquired.
Echelon may be referred to as Developer's supplier.
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