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Exhibit 10.3
SALES AGREEMENT
Customer DGS, Inc.
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Street Address 4601 Gateway Circle
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City Dayton State OH Zip Code 45440
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Telephone
SHIP TO ABOVE UNLESS NOTED:
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ECHELON agrees to sell to CUSTOMER the hardware products ("Hardware
Products") and license to CUSTOMER the software products ("Software Products")
listed on Schedule A (collectively "Products"). CUSTOMER understands that such
Products will be either new or reconditioned. Any Software Products in this
Agreement are licensed subject to the corresponding Software License,
Development License, and OEM License Agreements attached hereto as Exhibits A, B
and C, respectively. Additional exhibits may be added to this Agreement from
time to time as CUSTOMER purchases or licenses other products from ECHELON.
THE FOLLOWING "TERMS AND CONDITIONS", SCHEDULE A AND
EXHIBITS A THROUGH C ARE ATTACHED TO THIS SALES AGREEMENT AND
MADE A PART HEREOF.
ACCEPTED BY:
ECHELON CORPORATION CUSTOMER DGS, Inc.
By:/s/ Oliver R. Stanfield By: /s/ T. Haas for DGS
Title: Vice President & CEO Title: CEO
Date: 11-30-03 Date: Nov. 29, 1993
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1. Prices, License Fees and Taxes. The prices for Hardware Products and license
fees for Software Products are set forth on Schedule A and are exclusive of all
federal, state, municipal, or other government taxes or duties (except taxes
paid on net income). Any such tax fee, or charge shall be paid by the CUSTOMER.
If ECHELON is required to pay any such tax, fee, or charge, the CUSTOMER shall
reimburse ECHELON therefor. All prices are quoted in United States dollars.
2. Terms of Payment. CUSTOMER agrees to pay ECHELON's invoices within 30 days of
the shipment of Products; provided, however that ECHELON reserves the right to
require payment in advance or by letter of credit. CUSTOMER will pay ECHELON
interest of one and one-half percent (1 1/2%) per month (18% per year), or a
lower interest rate set by law, for all amounts not paid when due. All payments
are to be made in United States dollars.
3. Delivery. Delivery will be F.O.B. ECHELON's shipping facility. Title (except
title to licensed Software Products) will pass to CUSTOMER upon ECHELON's
delivery to a carrier. Upon delivery to the carrier, CUSTOMER will become
responsible for and bear the entire risk of loss or damage to the Products.
Scheduled delivery dates are estimates only.
4. Cancellation or Delay of Orders.
(a) CUSTOMER may cancel any order (or part thereof) or postpone
delivery dates for any Products without charge by giving ECHELON
written notice not less than sixty (60) days (Freeze Date) prior to
ECHELON's scheduled delivery date for those Products. If CUSTOMER
requests a postponement of over six (6) months, the order for such
Products shall be considered cancelled. (b) If CUSTOMER cancels any
order (or part thereof) or requests delay in delivery after the Freeze
Date, there will be a twenty-five percent (25%) restocking charge.
CUSTOMER will have no rights in partially completed goods from
cancelled orders. (c) If CUSTOMER requests and is granted a delay in
delivery, and if ECHELON has, prior to such request, notified CUSTOMER
of price changes that are effective at the time of the new delivery
date, then ECHELON's price to CUSTOMER on Products for which delivery
was delayed and any penalties due to ECHELON hereunder shall be based
upon ECHELON's new list prices.
5. Substitutions and Modifications. ECHELON reserves the right to make
substitutions or modifications to the specifications or implementations of the
Products, provided that these substitutions and modifications do not materially
reduce overall system performance.
6. Shipment Packaging and Mode of Transportation. CUSTOMER may provide ECHELON
with written shipment and packaging instructions to within twenty (20) days of
the scheduled delivery date. ECHELON will use its reasonable efforts to
accommodate these
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instructions. In the absence of specific instructions, ECHELON will ship the
Products by the method it deems most advantageous and in standard commercial
packaging. Transportation and insurance charges will be collect, or if prepaid,
will be invoiced to CUSTOMER. When special packaging is requested or, in the
opinion of ECHELON, required, the costs of the same, if not set forth on the
invoice, will be separately invoiced to and paid by CUSTOMER. Equipment held or
stored for CUSTOMER after an agreed upon delivery date shall be held or stored
at CUSTOMER's sole expense and risk.
7. Security Interest. ECHELON hereby reserves a purchase money security interest
in all Products sold or licensed hereunder and the proceeds thereof in the
amount of their purchase price until all such Products have been paid for in
full. CUSTOMER hereby agrees to perform all acts necessary or appropriate to
assist ECHELON in perfecting and maintaining such security interest. In the
event of a default by CUSTOMER of any of its obligations to ECHELON, ECHELON
will have the right, without liability to CUSTOMER, to repossess the Products
sold or licensed hereunder.
8. Installation and Training. Product installation per ECHELON's installation
instructions is the responsibility of CUSTOMER. CUSTOMER will be provided with
telephone support in accordance with ECHELON's standard practice. Additional
support will be available based on ECHELON's then current pricing and practice.
CUSTOMER may contract for training subject to ECHELON's then current schedules,
pricing, and practices.
9. Limited Warranty. ECHELON warrants the Hardware Products against defects in
materials and workmanship for a period of ninety (90) days after shipment to
CUSTOMER. ECHELON's sole and exclusive liability and CUSTOMER's sole remedy
under this warranty shall be, at ECHELON's option, to repair or replace any such
defective Hardware Products. The products which CUSTOMER considers defective
shall be returned to ECHELON, by a method of shipment approved by ECHELON in
advance. This warranty shall be void if in ECHELON's reasonable opinion such
defective condition was caused in whole or in part by CUSTOMER's misuse,
neglect, testing, attempts to repair, or any other cause beyond normal usage, or
by accident, fire, or other hazard. Repair or replacement does not extend the
warranty period for such Hardware Product. The limited warranty, if any, for
Software Products will be as set forth in the Software License Agreement
attached hereto as Exhibit A.
THE WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability. ECHELON'S LIABILITY UNDER OR FOR BREACH OF THIS
AGREEMENT SHALL NOT EXCEED THE PURCHASE PRICE OR LICENSE FEE PAID FOR THE
PRODUCTS LESS REASONABLE RENTAL OR PAST USE. IN NO EVENT SHALL ECHELON BE LIABLE
FOR COSTS OF
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PROCUREMENT OF SUBSTITUTE GOODS. IN NO EVENT SHALL ECHELON BE LIABLE FOR ANY
SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING IN ANY WAY OUT OF THIS
AGREEMENT, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY. THESE LIMITATIONS
SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY PROVIDED HEREIN.
11. Patent Infringement. ECHELON agrees to indemnify, hold harmless, and defend
CUSTOMER from and against any and all suits or proceedings and any and all
liability, loss, or damage arising out of any claim that the use of the Hardware
Products infringes any United States patent; provided, however, that CUSTOMER
notifies ECHELON promptly in writing of any such suit or proceeding and gives
ECHELON sole control of the defense and all negotiations for the settlement or
compromise thereof. This indemnity shall not apply if normally noninfringing
Hardware Products are rendered infringing by reason of CUSTOMER'S particular use
of such Hardware Products. At its Option, ECHELON may at any time replace,
modify, or procure for the CUSTOMER the right to continue using any Hardware
Products to avoid any infringement. The indemnification for Software Products is
as set forth in the Software License Agreement attached hereto as Exhibit A.
ECHELON'S LIABILITY UNDER THIS PARAGRAPH 11 SHALL NOT EXCEED THE TOTAL
PURCHASE PRICE OF THE PRODUCTS, THE FOREGOING STATES THE ENTIRE LIABILITY AND
OBLIGATION OF ECHELON WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF
ANY PATENT, COPYRIGHT, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY OR
PROPRIETARY RIGHT BY THE HARDWARE PRODUCTS OR ANY PART THEREOF.
12. Software License. CUSTOMER hereby agrees to the terms and conditions of the
Software License Agreement attached hereto as Exhibit A.
13. Development and OEM License. CUSTOMER understands that it may not purchase
NEURON,(R) Chips without having first entered into a LONWORKS(TM) Development
License Agreement with ECHELON. CUSTOMER agrees not to use in other than a
development environment or sell products or technology using ECHELON's
LONTALK(TM) Protocol without having first entered into a LONWORKS OEM License
Agreement with ECHELON. ECHELON's standard Development and OEM License
Agreements are attached hereto as Exhibits B and C, respectively.
14. Termination of Licenses. CUSTOMER agrees that, if the Products are being
purchased for CUSTOMER's use pursuant to a trial, rental, or lease program, then
CUSTOMER's rights under the Software License, Development License and OEM
License Agreements shall terminate upon termination of the applicable trial,
rental or lease period or any extensions thereof; provided, however, that if
CUSTOMER purchases the Products at the end of such period, then such rights
shall continue perpetually except as provided elsewhere herein or in such
license agreements. Within two (2) weeks after any such termination, CUSTOMER
shall return to ECHELON or a third party designated by ECHELON the original
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and all copies, in whole or in part, including partial copies and modifications
of the Software Products, or destroy such items and deliver certification
thereof to ECHELON.
15. Export Controls. CUSTOMER agrees not to export or reexport, or cause to be
exported or reexported, any Products received hereunder, or the direct product
of such Products, to any country to which, under the laws of the United States,
CUSTOMER is or might be prohibited from exporting its technology or direct
product thereof.
16. Partial Invalidity. If any provision in this Agreement shall be held to be
invalid or unenforceable, the remainder of this Agreement shall remain valid and
enforceable.
17. Acceptance. CUSTOMER will accept Products if such Products conform to all
material specifications of ECHELON. CUSTOMER will provide ECHELON with notice of
any material nonconformities within ten (10) days of CUSTOMER's receipt of
Products ("Initial Acceptance Period"). After resolution or correction, ECHELON
will provide CUSTOMER with notice that such nonconformities have been resolved
or corrected, and a new ten (10) day acceptance period ("Subsequent Acceptance
Period") will commence. If ECHELON is not provided with notice of any such
nonconformities during any Initial or Subsequent Acceptance Period, then
CUSTOMER agrees that the Products shall be deemed accepted.
18. General Provisions. ECHELON and CUSTOMER agree that (i) this Agreement shall
be governed by the laws of the State of California, (ii) CUSTOMER shall not
assign this Agreement without the prior written consent of ECHELON, (iii) no
modification to this Agreement, or any waiver of any rights, shall be effective
unless assented to in writing and the waiver of any breach or default shall not
constitute a waiver of any other rights hereunder or any subsequent breach or
default, (iv) the prevailing party in any legal action hereunder shall be
entitled to reimbursement of its expenses including without limitation
reasonable attorneys' fees, (v) any required notices hereunder shall be given in
writing at the address of each party set forth on the reverse side of this page,
and shall be deemed served when delivered or, if delivery is not accomplished by
reason or some fault of the addressee, when tendered, and (vi) this Agreement
and the Software License Agreement, the LONWORKS Development License Agreement
and the LONWORKS OEM License Agreement attached hereto as Exhibits A, B and C,
respectively, constitute the entire and exclusive agreement between the parties
hereto with respect to the subject matter hereof.
19. Termination. In the event of (i) a material breach of this Agreement by
CUSTOMER (ii) any proceeding, voluntary or involuntary, in bankruptcy or
insolvency by or against CUSTOMER, or (iii) any assignment of CUSTOMER's assets
for the benefit of creditors, this Agreement shall, if such condition is not
corrected within thirty (30) days after written notice thereof from ECHELON, at
ECHELON's option, terminate, and ECHELON may
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elect to cancel any unfilled orders hereunder. Within two (2) weeks after any
such termination, CUSTOMER shall return to ECHELON the original and all copies,
in whole or in part, including partial copies and modifications, of the Software
Products, or destroy such items and deliver certification thereof to ECHELON.
Notwithstanding the foregoing, the provisions of Sections 9, 10, 11, 13 and 14
hereof shall survive any termination of this Agreement.
20. Arbitration. Any dispute or claim arising out of this Agreement, the
Software License Agreement, or the Development or OEM License Agreements, shall
be finally settled by binding arbitration in San Francisco, California under the
Rules of Arbitration of the International Chamber of Commerce by three
arbitrators appointed in accordance with said rules. Judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
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SALES AGREEMENT
ADDENDUM
ECHELON acknowledges that CUSTOMER has entered into the Sales Agreement
to which this Addendum is attached with the expectation of obtaining financing
for the Products covered thereby pursuant to Trial, Rental or Lease Programs
offered through Echelon Credit Corporation. Accordingly,
1. ECHELON hereby consents to the assignment by CUSTOMER of its right
and obligation to purchase the Products for the purpose of obtaining such
financing.
2. ECHELON agrees that, if CUSTOMER is unable to obtain such financing
by ___________________________________________, the Sales Agreement will
terminate with no further obligation of ECHELON or CUSTOMER, except that if such
Products have been delivered to CUSTOMER, the last sentence of Section 19 shall
apply.
ACCEPTED BY:
ECHELON CORPORATION CUSTOMER DGS, Inc.
By:/s/ Oliver R. Stanfield By: /s/ T. Haas for DGS
Title: Vice President & CEO Title: CEO
Date: 11-30-93 Date: Nov. 29, 1993
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Exhibit A
LonBuilder(TM)
SOFTWARE LICENSE AGREEMENT
Echelon Corporation ("Echelon") grants you a non-exclusive, non-transferable
license to use the copy of the software and documentation contained in this
package and any updates or upgrades thereto provided by Echelon according to the
terms set forth below. If the software contained in this package is being
provided to you as an update or upgrade to software which you have previously
licensed, then you agree to destroy all copies of the prior release of this
software within thirty (30) days after opening this package; provided, however,
that you may retain one copy of the prior release for backup, archival and
support purposes.
LICENSE
You may:
(a) install the software on only one computer,
(b) use the software only for developing applications using
Echelon's LonWorks(TM) tools and components.
(c) make one (1) copy of the software in machine readable form
solely for backup purposes, provided that you reproduce all
proprietary notices on the copy, and
(d) physically transfer the software from one computer to another, provided
that the software is removed from the computer which it was installed
and is used on only one computer at a time.
You may not:
(a) use the software on more than one workstation at a time or
in a multi-user system,
(b) modify, translate, revere engineer, decompile or disassemble
the software, (except to the extent that such acts may be
prohibited under applicable law),
(c) copy the software (except for the backup copy or for the copies made
automatically by the system for use with NEURON(R) embedded within
LONBUILDER(TM) products), or copy the accompanying documentation, or
(d) rent, transfer or grant any rights in the software or
accompanying documentation in any form to any person without
the prior written consent of Echelon.
This license is not a sale. Title and copyrights to the software, accompanying
documentation and any copy made by you remain with Echelon. Unauthorized copying
of the software or the accompanying documentation, or failure to comply with the
above restrictions, will result in automatic termination of this license and
will make available to Echelon other legal remedies.
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LIMITED WARRANTY AND DISCLAIMER
Echelon warrants that, for a period of ninety (90) days from the date of
delivery to you, the diskettes on which the software is furnished under normal
use will be free from defects in materials and workmanship and the software
under normal use will perform substantially in accordance with the software
specifications contained in the LonBuilder Developer's Workbench documentation.
Echelon's entire liability and your exclusive remedy under this warranty (which
is subject to your returning the software to Echelon) will be, at Echelon's
option, to use reasonable commercial efforts to attempt to correct or work
around errors, to replace the software or diskettes with functionally equivalent
software or diskettes, as applicable, or to refund the purchase price and
terminate this Agreement.
EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, ECHELON MAKES AND YOU RECEIVE
NO WARRANTIES ON CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR IN ANY COMMUNICATION
WITH YOU, AND ECHELON SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Echelon
does not warrant that the operation of the software will be uninterrupted or
error free or that the software will meet your specific requirements.
LIMITATION OF LIABILITY
IN NO EVENT WILL ECHELON BE LIABLE FOR LOSS OF DATA, LOST PROFITS, COST OF COVER
OR OTHER SPECIAL INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING
FROM THE USE OF THE SOFTWARE OR ACCOMPANYING DOCUMENTATION, HOWEVER CAUSED AND
ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF ECHELON OR ANY
AUTHORIZED DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU
ACKNOWLEDGE THAT THE AMOUNTS PAID BY YOU FOR THE LonBuilder DEVELOPER'S
WORKBENCH REFLECT THIS ALLOCATION OF RISK.
GENERAL
This Agreement will be governed by the laws of the State of California. This
Agreement is the entire agreement between us and supersedes any other
communications or advertising with respect to the software and accompanying
documentation. If an provision of this Agreement is held invalid, the remainder
of this Agreement shall continue in full force and effect. Using duplication, or
disclosure by the U.S. Government is subject to restrictions as set forth in
subdivision (c)(1)(ii) of the Rights and Technical Data and Computer Software
clause at DFARS 252.227- 7013.
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Exhibit B
LonWorks(TM)
DEVELOPMENT LICENSE AGREEMENT
This Agreement is entered into between ECHELON CORPORATION ("Echelon")
and __________________________________, ("Licensee") on the following terms and
conditions:
1. DEFINITIONS
(a) "LonTalk(TM) Protocol" means Echelon's protocol for
control networks.
(b) "NEURON 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 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
identified in the LonBuilder(TM) documentation and/or
start up screen as "NEURON CHIP FIRMWARE," which, among
other things, implements the LonTalk Protocol.
(f) "Interface" means Echelon's proprietary interface
between the NEURON CHIP and a transceiver as claimed in
U.S. Patent No. 5,182,746. commonly known as the
`special purpose mode interface.'
2. LICENSE
(a) Echelon grants Licensee a nonexclusive license, under
Echelon Intellectual Property, solely to use NEURON
CHIPS to develop and design 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 right to use the LonTalk Protocol
and NEURON CHIPS shall not extend to use of the LonTalk
Protocol in devices that duplicate 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 used by Licensee, including NEURON CHIPS
contained in products of equipment purchased by
Licensee.
(b) Echelon hereby grants Licensee a nonexclusive license,
under U.S. Patent No. 5,182,746 and any foreign patents
based thereon claiming the same inventions to develop
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and design transceivers (only as part of LonWorks
Applications) that incorporate the Interface. Unless otherwise
approved in writing by Echelon, such transceivers must be of
Licensee's own proprietary design and LonWorks Applications
containing such transceivers must include Licensee's
proprietary software that will perform the end use functions,
in addition to network connection, for which the particular
LonWorks Application was designed.
(c) Echelon grants Licensee a nonexclusive license to
reproduce the NEURON CHIP Firmware without modification
for use only with NEURON CHIPS and only for developing
and designing LonWorks Applications. Licensee shall
not use in other than a development environment, sell
or otherwise distribute products, technology or NEURON
CHIP that include NEURON CHIP Firmware without entering
a LonWorks OEM License Agreement with Echelon.
(d) Echelon grants Licensee the additional right to have
made LonWorks Applications that do not incorporate the
Interface, subject to the following limitations:
(i) such LonWorks Applications may be used for internal
development purposes only and may not be sold or
otherwise distributed, (ii) title to the NEURON CHIP
and any memory device that contains the LonTalk
Protocol or Neuron Chip Firmware must be at all times
with Licensee and Licensee shall not provide to its
manufacturer the LonTalk Protocol or NEURON CHIP
Firmware unless the LonTalk Protocol or NEURON CHIP
Firmware has already been incorporated into the NEURON
CHIP or memory device and (iii) Licensee's manufacturer
must acknowledge in writing to Licensee that it ha read
and understands the limitations of this Agreement and
will not knowingly manufacture items that are in
violation of the provisions of this Agreement, Licensee
shall have no right to have made transceivers, or
components thereof, that incorporate the Interface.
(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, Interface or
NEURON CHIPS. Licensee shall have no right under Echelon
Intellectual Property to modify the LonTalk Protocol.
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 OR AGENCY APPROVALS, AS APPLICABLE. THE Neuron Chip,
LonTalk PROTOCOL, INTERFACE AND Neuron Chip FIRMWARE ARE NOT DESIGNED,
INTENDED OR AUTHORIZED FOR USE AS COMPONENTS IN EQUIPMENT INTENDED FOR
SURGICAL IMPLANT INTO THE BODY, OR OTHER APPLICATIONS INTENDED TO
SUPPORT OR SUSTAIN LIFE, OR
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FOR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE Neuron Chip,
LonTalk PROTOCOL, INTERFACE AND Neuron Chip FIRMWARE COULD CREATE A
SITUATION IN WHICH PERSONAL INJURY OR DEATH MAY OCCUR.
4. WARRANTY DISCLAIMER
ECHELON DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR
STATUTORY, RESPECTING THE LonTalk PROTOCOL, LonWorks APPLICATIONS,
Neuron Chips, ECHELON INTELLECTUAL PROPERTY, INTERFACE OR Neuron Chip
FIRMWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. TERMINATION
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 3, 4, 6, 7 and 9 shall survive any
termination of this Agreement. All other provisions shall terminate.
6. SOFTWARE LICENSE AGREEMENTS
Licensee agrees to be bound by the terms and conditions of the software
license agreements accompanying any LonBuilder Developer's Workbench
and software updates thereto purchased by Licensee.
7. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY 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, INTERFACE OR Neuron Chip
FIRMWARE.
8. RELATED COMPANIES
A parent corporation of Licensee that owns more than fifty percent
(50%) of the voting stock or other equity interests in Licensee, and
subsidiaries and affiliates of Licensee or such parent in that Licensee
or such parent own more than fifty percent (50%) of the voting stock or
other equity interests, shall be entitled to the rights of Licensee
under this Agreement: provided that Licensee and each parent,
subsidiary or affiliate desiring such rights shall first agree in
writing to be bound by the terms of this Agreement or if they were a
party hereto.
9. 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
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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.
(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 252.227-7013.
(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:DGS, Inc.
Signature: /s/ Oliver R. Stanfield Signature: T. Haas for DGS
Print Name: Oliver R. Stanfield Print Name: Tom Haas
Title: Vice President & CEO Title: CEO
Effective Date:11-30-93 Date Signed: Nov. 29, 1993
Address: 4015 Miranda Avenue Address: 4601 Gateway Circle
Palo Alto, CA 94304 Dayton, OH
(800) 258-4LON Phone: 513-439-0036
LonBuilder S/N:
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Exhibit C
LonWorks(TM)
OEM LICENSE AGREEMENT
This Agreement is entered into between ECHELON CORPORATION
("Echelon") and _____________________________("Licensee") upon
the following terms and conditions:
1. DEFINITIONS
(a) "LonTalk(TM) 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 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
identified in the LONBUILDER(TM) documentation and/or start up
screen as "NEURON CHIP Firmware", which, among other things,
implements the LONTALK Protocol.
(f) "Interface" means Echelon's proprietary interface
between the NEURON CHIP and a transceiver as claimed in
U.S. Patent No. 5,182,746, commonly known as the
'special purpose mode interface'.
2. LICENSE
(a) Echelon grants Licensee a nonexclusive 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 used by
Licensee, 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
15
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. 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 Echelon licensee, then Licensee shall
promptly discontinue selling such LONWORKS Applications to
such customer.
(c) Echelon hereby grants Licensee a nonexclusive license
under U.S. Patent No. 5,182.746 and any foreign patents
based thereon claiming the same inventions, to make,
use and sell transceivers (only as part of LONWORKS
Applications) that incorporate the Interface. Unless
otherwise approved in writing by Echelon, such
transceivers must be of Licensee's own proprietary
design and LONWORKS Applications containing such
transceivers must include Licensee's proprietary
software that will perform the end use functions, in
addition to network connection, for which the
particular LONWORKS Application was designed.
(d) Echelon grants Licensee a nonexclusive 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. At the request of Licensee. 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) Echelon grants Licensee the additional right to have
made LONWORKS Applications that do not incorporate the
Interface, subject to the following limitations:
(i) title to the NEURON CHIP and any memory device that
contains the LONTALK Protocol or NEURON CHIP Firmware
must be at all times with Licensee and Licensee shall
not provide to its manufacturer the LONTALK Protocol or
NEURON CHIP Firmware unless the LONTALK Protocol or
NEURON CHIP Firmware has already been incorporated into
the NEURON CHIP or memory device and (ii) Licensee's
manufacturer must acknowledge in writing to Licensee
that it has read and understands the limitations of
this Agreement and will not knowingly manufacture items
that are in violation of the provisions of this
Agreement. Licensee shall have no right to have made
transceivers, or components thereof, that incorporate
the Interface.
(f) No license is granted, express or implied, under any
patents, trade secrets, know-how or other intellectual
16
property of Echelon covering specific applications or
implementations of the LONTALK Protocol, LONWORKS
Applications, Interface or NEURON CHIPS. In addition, Licensee
shall have no right to use Echelon's trademarks, trade names
or logos without the prior written consent of Echelon.
Licensee shall have no right under Echelon Intellectual
Property to modify the LONTALK Protocol.
3. LICENSE FEE
Upon execution of this Agreement, Licensee shall pay Echelon the
non-refundable amount of Two Thousand Five Hundred U.S. Dollars (U.S.
$2,500), unless this Agreement replaces a prior version of the OEM
License Agreement for which Licensee has already paid such amount to
Echelon.
4. 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 OR AGENCY APPROVALS, AS APPLICABLE. THE NEURON CHIP,
LONTALK PROTOCOL, INTERFACE AND NEURON CHIP FIRMWARE ARE NOT DESIGNED,
INTENDED OR AUTHORIZED FOR USE AS COMPONENTS IN EQUIPMENT INTENDED FOR
SURGICAL IMPLANT INTO THE BODY, OR OTHER APPLICATIONS INTENDED TO
SUPPORT OR SUSTAIN LIFE, OR FOR ANY OTHER APPLICATION IN WHICH THE
FAILURE OF THE NEURON CHIP, LONTALK PROTOCOL, INTERFACE AND NEURON CHIP
FIRMWARE COULD CREATE A SITUATION IN WHICH PERSONAL INJURY OR DEATH MAY
OCCUR.
5. INDEMNITY AND WARRANTY DISCLAIMER
(a) 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,
17
in no event shall Echelon's liability to Licensee under this
paragraph exceed the fee paid by Licensee to Echelon under
this Agreement. 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 CHIPS. ECHELON INTELLECTUAL PROPERTY,
INTERFACE OR NEURON CHIP FIRMWARE.
(b) EXCEPT FOR THE REMEDIES AVAILABLE UNDER PARAGRAPH 5(a),
ECHELON DISCLAIMS ALL WARRANTIES AND CONDITIONS,
EXPRESS, IMPLIED OR STATUTORY, RESPECTING THE LONTALK
PROTOCOL, LONWORKS APPLICATIONS, NEURON CHIPS, ECHELON
INTELLECTUAL PROPERTY, INTERFACE OR NEURON CHIP
FIRMWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
6. TERM 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.
(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 4, 5, 7.8 and 10 shall survive any
termination of this Agreement. All other provisions shall
terminate.
7. SOFTWARE LICENSE AGREEMENTS
Licensee agrees to be bound by the terms and conditions of the software
license agreements accompanying any LONBUILDER Developer's Workbench
and software updates thereto purchased by Licensee.
8. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY 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, INTERFACE OR NEURON CHIP
FIRMWARE.
9. RELATED COMPANIES
A parent corporation of Licensee that owns more than fifty percent
(50%) of the voting stock or other equity interests in Licensee, and
subsidiaries and affiliates of Licensee or such parent in that Licensee
or such parent own more than fifty percent (50%) of the voting stock or
other equity interests, shall be entitled to the rights of Licensee
under this Agreement; provided, that Licensee and each parent,
18
subsidiary or affiliate desiring such rights shall first agree in
writing to be bound by the terms of this Agreement as if they were a
party hereto.
10. 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 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.
(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 252.227-7013.
(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:
Signature:____________________ Signature:____________________
Print Name:___________________ Print Name:___________________
Title:________________________ Title:________________________
Effective Date:_______________ Date Signed: _________________
Address: 4015 Miranda Avenue Address:______________________
Palo, Alto, CA 94304 ______________________________
(800) 258-4LON Phone:________________________
LonBuilder S/N:_______________