EXHIBIT 10.2
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (the "Agreement") is entered into as of this __
day of __________, 1998 (the "Effective Date"), by and between AWARD SOFTWARE
INTERNATIONAL, INC. ("Award"), a California corporation having its principal
place of business at 777 East Middlefield Road, Mountain View, CA 94043, and
VOBIS MICROCOMPUTER AG, ("Vobis") a corporation organized under the laws of
Germany having its principal place of business at Carlo-Schmid Strasse 12, D-
52146 Wuerselen, Germany.
RECITALS
WHEREAS Vobis and Award have previously developed certain basic
input/output system code;
WHEREAS The parties wish to clarify their obligations with respect to
the support, maintenance and development of such basic input/output system code;
NOW THEREFORE, in consideration of the promises recited herein, and
other valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, Award and Vobis hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein shall have the following
meanings:
1.1 "BIOS CODE" shall mean the firmware code set forth on EXHIBIT A ("BIOS
CODE") hereto, in both Source Code and Object Code, including all Corrections,
Updates, Upgrades, and Custom Development Work of the BIOS Code delivered by
Award hereunder.
1.2 "BIOS PATENT RIGHTS" shall mean any and all rights in and to: (i) the
claims contained in the patents and patent applications described in EXHIBIT A
hereto and incorporated herein by reference; (ii) all claims contained in
patents and patent applications filed in foreign countries corresponding to any
of the foregoing patents and patent applications; and (iii) all claims contained
in continuations, divisions, substitutions, reexaminations, patents of addition,
continuations-in-part, reissues, renewals and extensions of the patents and
patent applications referenced in (i) and (ii) above, to the extent the same
claim subject matter disclosed in a claim contained in a patent or patent
application described in EXHIBIT A hereto.
1.3 "CONFIDENTIAL INFORMATION" shall have the meaning assigned to it in
SECTION 7 ("CONFIDENTIALITY").
1.4 "CORRECTION" shall mean shall mean a "patch", "bug fix", "work
around", or other modification to Award's generally offered BIOS code (not
incorporating inventions covered by the BIOS Patent Rights); or the BIOS Code,
which corrects or minimizes an Error therein, but does not provide additional
features or functions.
1.5 "CUSTOM DEVELOPMENT WORK" shall mean development work carried out by
Award pursuant to a Custom Development Work Exhibit signed by Award and Vobis.
1
1.6 "CUSTOM DEVELOPMENT WORK EXHIBIT" shall mean an exhibit to this
Agreement, in substantially the form described in EXHIBIT B ("CUSTOM DEVELOPMENT
WORK"), signed by Award and Vobis, which shall incorporate the terms of this
Agreement by reference, and pursuant to which Custom Development Work shall be
carried out by Award.
1.7 "DESIGNATED EMPLOYEES" shall mean up to three (3) designated Vobis
employees whose names shall be provided to Award within ten (10) days of the
Effective Date.
1.8 "ERROR" shall mean a documented and reproducible "bug", defect, error
or problem with Award's generally offered BIOS code (not incorporating
inventions covered by the BIOS Patent Rights) or the BIOS Code which causes the
such code to deviate from its published specifications in normal use.
1.9 "OBJECT CODE" shall mean compiled BIOS Code, in a format not readily
perceivable by humans.
1.10 "SOURCE CODE" shall mean uncompiled BIOS Code, in a format readily
perceivable by humans.
1.11 "SUPPORT" shall have the meaning assigned to it in SUBSECTION 3.2
("CUSTOM DEVELOPMENT WORK").
1.12 "TERM" shall have the meaning assigned to it in SECTION 6 ("TERM AND
TERMINATION").
1.13 "UPDATES" shall mean additions, enhancements, improvements, updates
and upgrades to Award's generally offered BIOS code (not incorporating
inventions covered by the BIOS Patent Rights), or the BIOS Code, which add
additional features or functions, and which may correct Errors, but for which
Award does not ordinarily charge a fee to its existing licensees.
1.14 "UPGRADES" shall mean additions, enhancements, improvements, updates
and upgrades to Award's generally offered BIOS code (not incorporating
inventions covered by the BIOS Patent Rights), or the BIOS Code, which add
additional features or functions or are made for the purpose of maintaining the
compatibility of such code with changes in hardware or operating systems.
2. PATENTS PRICING
2.1 NO AWARD EXPLOITATION OF BIOS PATENT RIGHTS. Award agrees that,
without Vobis's prior written consent and except for the development and license
to Vobis of the BIOS Code, Award shall not make, have made, use, offer for sale
sell, import or export any product, nor practice any method, on which the BIOS
Patent Rights read, nor shall Award sublicense any of such rights to any third
party.
2.2 NO ACCOUNTING BY VOBIS. Vobis shall not have any obligation to
account to Award for any exercise by Vobis of its rights of the BIOS Patent
Rights by sublicensing the
2
BIOS Code as embedded in Vobis hardware, except for those accounting obligations
required by the BIOS Code license agreements between the parties.
2.3 FUTURE PRICING OF BIOS CODE. Award agrees that for five (5) years
after the Effective Date of this Agreement, it shall not increase the license
fees or other fees charged to Vobis with respect to the BIOS Code by more than
ten percent (10%) annually, and that in all events, Award shall charge Vobis no
more than it charges customers licensing similar volumes of copies of Award's
BIOS code which does not incorporate inventions covered by the BIOS Patent
Rights.
3. BIOS CODE SUPPORT AND CUSTOM DEVELOPMENT WORK.
3.1 SUPPORTING ENGINEERING OF BIOS CODE. Award agrees that for five (5)
years after the Effective Date of this Agreement, each time that it creates
Corrections, Updates or Upgrades of its generally offered BIOS code (not
incorporating inventions covered by the BIOS Patent Rights), it shall promptly
create similar Corrections, Updates, or Upgrades (as applicable) of the BIOS
Code. Award shall provide such Corrections, Updates, or Upgrades of the BIOS
Code to Vobis upon terms and conditions mutually agreeable to the parties,
subject to the price increase limitations of Section 2.3.
3.2 SUPPORT. During the Term of this Agreement, Award shall provide to
Vobis certain support ("Support") with respect to the BIOS Code as follows:
(a) Vobis shall have the right, exercisable through the Designated
Employees only, to contact Award by telephone or e-mail, during Award's normal
business hours, and to consult with Award for a reasonable period regarding the
use or operation of the BIOS Code, including any Errors therein;
(b) Vobis shall have the right to have Award exercise its reasonable
commercial efforts to identify and correct, and, to the extent deemed reasonable
by Award, to provide Corrections for, Errors in the BIOS Code;
3.3 CUSTOM DEVELOPMENT WORK. From time to time during the Term of this
Agreement, the Designated Employees may request in writing Award to deliver
Updates or Upgrades of the BIOS Code or to develop and deliver Custom
Development Work. Such requests shall be in sufficient detail to allow Award's
technical staff to clearly understand the nature and scope of the request and
shall at all times be technically reasonable. Award and Vobis agree to
negotiate in good faith with respect to each such request, subject to the
limitations on price increases in Section 2.3, and the agreement of the parties
with respect thereto shall be in writing and signed by both parties. Payment to
Award for Custom Development Work shall be on a time and materials basis at
customary rates then offered by Award to third parties for similar work and
subject to the availability of Award personnel and resources.
3.4 NO LICENSE. Vobis expressly acknowledges that Award is not providing
or licensing to Vobis any Award intellectual property rights, software or
products pursuant to this Agreement. Vobis' use or ownership of the BIOS Code,
including all Corrections, Updates and
3
Custom Development Work, shall be governed by the terms of the BIOS Code License
Agreement for Source Code entered into by the parties on March 11, 1998, unless
otherwise agreed to by the parties in writing.
4. DISCLAIMER OF WARRANTY.
4.1 NO WARRANTY. THE SUPPORT, CUSTOM DEVELOPMENT WORK, UPDATES AND
CORRECTIONS ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. AWARD MAKES NO,
AND EXPRESSLY DISCLAIMS ALL, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-
INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
5. LIMITATION OF LIABILITY. IN NO EVENT WILL AWARD BE LIABLE TO VOBIS OR TO
ANY THIRD PARTY CLAIMING THROUGH OR UNDER VOBIS FOR ANY LOST PROFITS, LOST
SAVINGS, BUSINESS INTERRUPTION, OTHER TANGIBLE BUSINESS LOSS, OR OTHER
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR FOR ANY CLAIM BY ANY OTHER
PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, ARISING
OUT OF THIS AGREEMENT, EVEN IF AWARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
6. TERM AND TERMINATION.
6.1 TERM. The term ("Term") of this Agreement shall continue indefinitely
unless earlier terminated as herein provided.
6.2 TERMINATION FOR MATERIAL BREACH. Either party may terminate this
Agreement for the material breach of the other party which material breach has
remained uncured for a period of thirty (30) days from the date of written
notice thereof.
6.3 TERMINATION FOR CONVENIENCE. Vobis may terminate this Agreement for
convenience upon thirty (30) days' written notice to Award.
7. CONFIDENTIALITY.
7.1 CONFIDENTIAL INFORMATION. Vobis understands and agrees that the
Support, Custom Development Work, Upgrades, Updates and Corrections, including
without limitation all elements thereof, and including any information disclosed
to Vobis in the course of receiving any of the foregoing, whether disclosed
orally or in tangible form, is and shall remain the confidential information of
Award, regardless of whether so designated in writing (collectively,
"Confidential Information").
7.2 OBLIGATIONS. Vobis shall not use or disclose Confidential Information
except as expressly set forth in this Agreement until such time as such
Confidential Information becomes publicly-known without breach of this Agreement
or violation of applicable law.
4
7.3 EXCEPTIONS. The foregoing obligations shall not apply to any
information which:
(a) was already lawfully known to Vobis without obligation of
confidence prior to disclosure by Award;
(b) was lawfully received by Vobis from a third party without
obligation of confidence;
(c) Vobis can demonstrate by documentary evidence was independently
developed by Vobis without access to, or use of, the Confidential Information;
(d) is required to be disclosed by applicable law or the order of a
court or similar body of competent jurisdiction; provided, however, that in such
case Vobis shall give prompt, written notice of such requirement to Award, and
shall cooperate reasonably with Award in the obtaining of a protective or
similar order with respect to the Confidential Information.
8. GENERAL.
8.1 ASSIGNMENT. Except as otherwise provided herein, neither this
Agreement nor any interest hereunder shall be assignable in whole or in part by
either party without the prior written consent of the other; provided, however,
that Award may assign this Agreement upon notice to any successor by merger or
sale of all or substantially all of its business in a manner such that the Award
will remain liable and responsible for the performance and observance of all its
duties and obligations hereunder. This Agreement will be binding upon the
successors and permitted assigns of the parties and the name of a party
appearing herein will be deemed to include the names of such party's successors
and permitted assigns to the extent necessary to carry out the intent of this
Agreement. Any purported assignment which is not in accordance with this
SUBSECTION 8.1 ("ASSIGNMENT") will be void.
8.2 FORCE MAJEURE. Neither party will be liable to the other for any
default or delay attributable to any cause beyond its reasonable control,
including without limitation any fire, floods, earthquake, embargo, war, act of
war (whether declared or not), insurrections, riots, civil commotion, strikes,
lockouts or other labor disturbances, acts of God or act, omission or delay in
acting by any governmental authority, if the party affected gives prompt notice
of any such cause to the other party. The party giving such notice will
thereupon be excused from such of its obligations hereunder as it is thereby
disabled from performing for sixty (60) days thereafter; provided, however, that
such affected party commences and continues to take reasonable and diligent
actions to cure such cause.
8.3 GOVERNING LAW, VENUE AND LEGAL FEES AND COSTS. This Agreement shall
be governed by the laws of the State of California, excluding its conflict of
law provisions. Any suit hereunder shall be brought solely in the Federal or
State courts located in Santa Clara County, California, and both parties hereby
submit to the jurisdiction thereof. The prevailing party in any legal action
brought by one party against the other and arising out of this Agreement shall
be entitled, in addition to any other rights and remedies it may have, to
reimbursement for its
5
expenses, including court costs and reasonable attorneys' fees. The United
Nations Convention on Contracts for the International Sale of Goods shall not
apply to this Agreement.
8.4 SURVIVAL. SECTION 1 ("DEFINITIONS"), SECTION 2 ("PATENTS AND
PRICING"), SUBSECTION 3.3 ("NO LICENSE"), SECTION 4 ("DISCLAIMER OF WARRANTY"),
SECTION 5 ("LIMITATION OF LIABILITY"), SECTION 6 ("TERM AND TERMINATION"),
SECTION 7 ("CONFIDENTIALITY") and SECTION 8 ("GENERAL") shall survive any
termination or expiration of this Agreement, and shall continue to bind the
parties, their permitted assigns and successors.
8.5 NOTICES. All notices under this Agreement shall be addressed to the
parties at the addresses set forth below. Either party may change its address
for purposes of this SUBSECTION 8.5 ("NOTICES") upon delivery of notice thereof
to the other party:
AWARD SOFTWARE INTERNATIONAL, INC.
777 East Middlefield Road
Mountain View, CA 94043
VOBIS MICROCOMPUTER AG
Carlo-Schmid-Strasse 12, D-52146
Wuerselen, Germany
8.6 AMENDMENT. No amendment, modification or supplement of any provision
of this Agreement will be valid or effective unless made in writing and signed
by a duly authorized officer of each party.
8.7 WAIVER. No provision of the Agreement may be waived by any act,
omission or knowledge of a party or its agents or employees except by an
instrument in writing expressly waiving such provision and signed by a duly
authorized officer of the waiving party.
8.8 SEVERABILITY. Whenever possible, each provision of the Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of the Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of the
Agreement.
8.9 ENTIRE AGREEMENT. This Agreement including all exhibits hereto will
constitute and contain the complete, final and exclusive understanding and
agreement of the parties and supersedes any and all prior negotiations,
correspondence, understandings and agreements, whether oral or written, between
the parties respecting the subject matter hereof.
8.10 HEADINGS. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe
or describe the scope or intent of any such section nor in any way affect this
Agreement.
6
ACCEPTED AND AGREED:
VOBIS MICROCOMPUTER AG
By:_______________________________
Title:____________________________
Date:_____________________________
AWARD SOFTWARE INTERNATIONAL, INC.
By:_______________________________
Title:____________________________
Date:_____________________________
7
EXHIBIT A
BIOS CODE
Firmware commonly referred to as "P-BIOS" existing as of the Effective Date
and containing inventions, apparatus, devices, or processes covered by the BIOS
Patent Rights embodied in one or more of the following:
1. CGA-MODES, as described in the attached patent abstract #5,726,680 issued
March 10, 1998.
2. Scrolling, as described in application serial #08/537,801 filed February
17, 1995.
3. Floppy-Bios, as described in application serial #08/891,032 filed June 7,
1996.
8
EXHIBIT B
CUSTOM DEVELOPMENT WORK
VOBIS MICROCOMPUTER AG AWARD SOFTWARE INTERNATIONAL, INC.
By:_______________________________ By:_________________________________
Title:____________________________ Title:______________________________
Date:_____________________________ Date:_______________________________
9