Software Licensing Agreement - Dell Products LP and InterVideo Inc.
SOFTWARE LICENSING AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT is entered into as of this 4th day of August
1999 (hereinafter "Effective Date") by and between Dell Products L.P.
(hereinafter "Dell") with its principal place of business at One Dell Way, Round
Rock, Texas 78682, and Intervideo, Inc., a California corporation having a
principal place of business at 47350 Fremont Blvd., Fremont, CA 94538
(hereinafter "Licensor").
1.0 DEFINITIONS
1.1 Agreement shall mean this Software License Agreement and its
Supplement.
1.2 Licensed Product(s) shall mean: (i) the software and documentation
listed in the Supplement to this Software License Agreement and (ii)
all improvements, corrections, modifications, alterations, revisions,
extensions, upgrades, national language versions and/or enhancements to
the software and/or documentation made during the term of this
Agreement (hereinafter "Updates").
1.3 Supplement shall mean the supplement executed under this Software
License Agreement. The supplement shall describe the Licensed
Product(s) and may include additional terms and conditions such as
compensation, delivery schedules, technical contacts and other
information related to the Licensed Product(s). The terms and
conditions of this Software License Agreement shall apply to the
Supplement.
2.0 OBJECT CODE LICENSE WITH SOURCE CODE ESCROW PROVISIONS
2.1 Licensor hereby grants to Dell a non-exclusive, worldwide, irrevocable
right and license, under all copyrights, patents, patent applications,
trade secrets and other necessary intellectual property rights, to: (i)
use, make, execute, reproduce, display, perform and prepare derivative
works of, the Licensed Product(s), in object code form, (ii)
distribute, license, sublicense, sell, lease or otherwise transfer the
Licensed Product(s), in object code form, as part of, in conjunction
with, or for use with, Dell systems and (iii) authorize, license and
sublicense third parties to do any, some or all of the foregoing. Dell
shall have the option to distribute the Licensed Product(s) to end
users pursuant to Dell's or Licensor's end user license agreement or
the like, as updated from time to time.
2.2 The above grant includes, without limitation, the right and license to:
(i) use Licensor's trade names, product names and trademarks in
connection with the marketing and distribution of Licensed Product(s)
and (ii) all pictorial, graphic and audio visual works including icons,
screens and characters created as a result of execution of the Licensed
Product(s).
2.3 Upon Dell's request, Licensor agrees to place into escrow the Licensed
Product(s), in source code form, and all build tools and other
materials necessary to enable Dell to maintain and service the Licensed
Product(s) in object code from ("hereinafter Escrow Materials"). Dell
shall be responsible for paying the escrow agent's fees. Dell agrees
not to exercise its license to the Escrow Materials set forth below
unless and until the Escrow Materials are released to
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Dell by the escrow agent. The escrow agent may only release the Escrow
Materials to Dell under the following circumstances: (i) Licensor
becomes insolvent, (ii) a claim of bankruptcy if filed by or on behalf
of Licensor, (iii) Licensor makes an assignment for the benefit of a
creditor or (iv) Licensor ceases to do business in the normal course.
Under all circumstances, ownership of the Licensed Product shall remain
with IVI.
2.4 Licensor hereby grants to Dell a non-exclusive, worldwide, irrevocable
right and license, under all copyrights, patents, patent applications,
trade secrets and other necessary intellectual property rights, to
internally: (i) use, execute, reproduce, display, perform, prepare
derivative works of, the Licensed Product(s), in source code form, for
the purposes of enabling Dell to maintain, service and manufacture the
Licensed Product(s) and (ii) authorize, license and sublicense third
parties to do any, some or all of the foregoing on Dell's behalf.
3.0 COMPENSATION; PER COPY ROYALTIES
3.1 Dell will pay Licensor a per copy royalty as set forth in the
Supplement for each copy of the Licensed Product(s) distributed by Dell
for revenue. No per copy royalties shall be due for copies of the
Licensed Product(s): (i) [*], (ii) used or distributed for
demonstration, marketing or training purposes, (iii) distributed to a
customer as a replacement for a defective copy or to fix an error, (iv)
used to repair or maintain a customer's system, (v) used for backup or
archival purposes, (vi) returned by a customer, (vii) used for
manufacturing or testing purposes or (viii) distributed to an existing
customers as an upgrade to their existing copy of the Licensed
Product(s).
3.2 The per copy royalties set forth in the Supplement represents Dell's
only financial obligations under this Agreement and includes all costs
and fees. All payments shall be made in United States currency.
Licensor acknowledges that there [*] royalty due under this Agreement
and that any royalties received will be based solely on the criteria
set forth above. Licensor acknowledges and agrees that Dell has the
right to withhold any applicable taxes from any royalties due under
this Agreement if required by any government agency.
3.3 Upon request, Dell shall submit royalty reports within [*] days after
[*]. For the purposes of royalty reporting, as an example, Dell's
fiscal quarters may be: Quarter 1 - February 1-April 30, Quarter 2-May
1-July 31, Quarter 3-August 1-October 31, and Quarter 4-November
1-January 31.
3.4 A nationally recognized accounting organization retained by Licensor
and acceptable to Dell may have access to those records maintained by
Dell that are necessary to determine whether Dell has paid the
appropriate royalties based on net shipments by Licensed Product. Dell
must receive at least sixty (60) or more days of advance written notice
of Licensor's intent to audit. Such audit may only take place upon
sixty (60) days written notice, during regular business hours and no
more than once per calendar year. Only two (2) years of Dell records
may be accessed from the date of audit, unless there is a substantial
discrepancy which may affect additional year records. All records
accessed during the audit shall be deemed Dell
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confidential information and will be treated as such in accordance with
the confidentiality agreement in place between the parties. If no such
agreement is in place, the parties will negotiate in good faith the
terms of such an agreement.
3.5 If the parties discover and agree that Dell has overpaid Licensor,
Licensor shall refund the amount of the overpayment to Dell within
forty-five (45) days after receipt of an invoice. If the parties
discover and agree that Dell has underpaid Licensor, Dell will pay
Licensor the amount of the underpayment within forty-five (45) days
after receipt of an invoice.
4.0 PRE-DELIVERY TESTING, DELIVERY AND ACCEPTANCE
4.1 Prior to delivery, Licensor shall perform all testing necessary to
ensure that the Licensed Product(s) comply with its written
specifications and are compatibility with Dell systems. Licensor shall
appoint a designated systems engineer who shall be available on a [*]
basis to support Dell in all areas relating to the Licensed
Product(s). Such [*] systems engineer will work with Dell on any
modifications to the Licensed Product(s) necessary to fully support
Dell's systems and their features.
4.2 Licensor shall, at its expense, deliver a master copy of the Licensed
Product(s) to Dell in accordance with the schedule set forth in the
Supplement. Licensor also shall, at its expense, deliver to Dell,
within [*] days of Dell's request, all Updates to the Licensed
Product(s) made during the term of this Agreement, Licensor shall
inform Dell of the existence of a major Update at least [*] days prior
to making such an Update generally available or within [*] days for a
minor Update. Upon Dell's request, Licensor shall provide Dell with a
pre-release copy of any Update. Licensor shall deliver a master copy of
its standard end user license agreement and a copy of the Licensed
Product's written specifications at the same time Licensor delivers the
Licensed Product(s).
4.3 Upon Dell's receipt of a Licensed Product, Dell shall have [*] days to
conduct those tests that Dell deems appropriate to determine whether
the Licensed Product: (i) complies with its written specifications,
(ii) contains any defects and (iii) is compatible with Dell's systems.
If Dell discovers a problem, Dell will notify Licensor and Licensor
will have [*] days [*] to fix the problem and deliver a corrected
version of the Licensed Product to Dell. Upon receipt of the corrected
version, Dell will have [*] days to test the corrected version of the
Licensed Product. If Dell determines that there is still a problem,
Dell will have the option of rejecting the Licensed Product or
agreeing upon a fix strategy with Licensor. If Dell rejects the
Licensed Product, any payments previously made by Dell to Licensor
relating to the Licensed Product, if any, shall be refunded in their
entirety within [*] days of Dell's rejection. If Dell decides to agree
on a fix strategy, such decision shall not be deemed an acceptance of
the Licensed Product. In fact, each version of the Licensed Product
delivered to Dell, in accordance with the fix strategy, will go through
the acceptance process set forth above.
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5.0 SUPPORT, TRAINING AND MAINTENANCE
5.1 Licensor shall, [*], train Dell personnel to set up, install, configure
and operate the Licensed Product(s) and provide such other training to
assist and enable Dell to fully perform and exercise its rights under
this Agreement. Such training shall be completed [*] days prior to
Dell's commercial introduction of the Licensed Product(s). Additional
training periods for Updates shall also be provided [*] and within a
mutually agreed upon time period.
5.2 During the term of this Agreement, Licensor shall, [*], provide to Dell
ongoing technical support, maintenance and services for the Licensed
Product(s). Should Licensor become aware of any reproducible errors or
be notified by Dell or any errors in the Licensed Product(s), Licensor
shall promptly take appropriate measures to correct such errors and
provide such corrections in accordance with the time frames set forth
below. Licensor shall provide, [*], assistance in correcting
difficulties caused by errors, including, but not limited to, phone
for Dell customer service staff. Licensor agrees to provide any other
appropriate service to ensure the proper installation, operation, and
functioning of the Licensed Product(s).
5.3 Dell will notify Licensor of any problems discovered with the Licensed
Product(s). Such notification may be in writing or oral. Timely
turnaround to software problem reports will be required. Problems must
be fixed within the following timeframes:
Major Defect Correction
------------ ----------
Licensor acknowledgment and description Work-around or patch within
of course of action within [*] of [*].
notification by Dell.
Minor Defect Correction
------------ ----------
Licensor acknowledgement and description Work around or patch
of course of action within [*] of within [*].
notification by Dell.
Major Defect is any problem with the use of Licensed Product(s) that
either fully or partially impairs the use or operation of the Licensed
Product by Dell or Dell's customers or licensees. Minor Defect is any
problem that is outside of the Major Defect definition.
6.0 REPRESENTATIONS AND WARRANTIES
On an ongoing basis, Licensor represents and warrants that:
(a) the Licensed Product(s) will operate in accordance with its
written specifications;
(b) Licensor has [*] in the Licensed Product(s) to grant Dell the
rights and licenses contained in this Agreement;
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(c) the Licensed Product(s) [*] of any third party;
(d) the Licensed Product(s) does not contain any known viruses,
expiration, time-sensitive devices or other harmful code that
would inhibit the end user's use of the Licensed Product(s) or
Dell system;
(e) if applicable, the Licensed Product(s) shall be able to accurately
process date data (including, but not limited to, displaying,
calculating, comparing, and sequencing) between the twentieth and
twenty-first centuries;
(f) if applicable, the Licensed Product(s) is certified by Microsoft
as PC 9X compliant or Windows Logo certified;
(g) Licensor and the Licensed Product(s) comply with all governmental
laws, statutes, ordinances, administrative orders, rules and
regulations and that Licensor has procured all necessary licensees
and paid all fees and other charges required so that Dell can
exercise the rights and license granted under this Agreement;
(h) Licensor has obtained a waiver or agreement not to assert any
moral rights from any person or entity having any moral rights
with respect to the Licensed Product(s) and Licensor shall not
assert any moral rights Licensor or its employees may have in the
Licensed Product(s);
(i) the Licensed Product(s) are not encrypted, nor do they contain
encryption capability;
(j) there is no restriction of any relevant governmental authority
which prohibits the export of the Licensed Product(s) to countries
outside the United States and Canada, other than those laws of the
United States which prohibit exports generally to specified
countries, currently: Libya, Cuba, Montenegro, North Korea,
Serbia, Syria, Sudan, Iran and Iraq, as amended from time to time
by the United States Government; and
(k) Licensor has and will continue to comply with all applicable
governmental laws, statutes, rules and regulations including, but
not limited to, those related to export of product and technical
data, and Licensor agrees that for any updates, upgrades and new
products which are licensed to Dell pursuant to the terms of this
Agreement. Licensor shall provide prior written notice of any
facts which would make the foregoing representations untrue.
In the event that Dell chooses to use Licensor's end user license
agreement, Licensor hereby makes the following additional ongoing
representations and warranties:
(l) Licensor will warrant the Licensed Product(s) directly to the
end-user in accordance with the terms and conditions set forth in
Licensor's end-user license agreement; and
(m) Licensor has agreed to honor all replacement requests received
from Dell or end users under the terms of the end user license
agreement pertaining to defective Licensed Product(s).
7.0 INDEMNIFICATION
7.1 Licensor shall indemnify, defend and hold harmless Dell, Dell Computer
Corporation, Dell Computer Corporation's subsidiaries and affiliates
and all of the foregoing entities' officers, directors, employees,
agents, customers and licensees, and their successors and assigns,
from
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and against any and all claims, actions, suits, legal proceedings,
demands, liabilities, damages, losses, judgments, settlements, costs and
expenses, beyond the liability limitations listed in section 9.2,
including attorney's fees, arising out of or in connection with any
alleged or actual:
(i) infringement by Licensor and/or the Licensed Product(s) of any
copyright, patent, trade secret or other intellectual property rights
or similar rights of any third party, except those listed in 7.4;
(ii) breach by Licensor and/or the Licensed Product(s) of any other
representation and/or warranties contained in this Agreement; and
(iii) damage to any property, personal injury, death or any other
damages or losses sustained by whomever suffered, resulting, or
claimed to result, in whole or in part from any alleged or actual
defect in the Licensed Product(s) whether latent or patent, including
any alleged or actual improper construction or design or the failure
of the Licensed Product(s) to comply with its written specifications
or any express or implied warranties.
7.2 In the event that Dell becomes aware of any such claim, Dell shall: (i)
notify Licensor of such claim, (ii) cooperate with Licensor in the defense
thereof and (iii) obtain Licensor's approval prior to settling any such
claim, provided such consent is not unreasonably withheld.
7.3.1 In addition to Licensor's obligations under Subsection 7.1 above, in the
event that a claim of infringement is made with regard to the Licensed
Product(s), Licensor shall, at its own expense, procure for Dell the right
to exercise the rights and licenses granted to Dell under this Agreement
or modify the Licensed Product(s) such that it is no longer infringing.
8.0 TERM AND TERMINATION OF AGREEMENT
8.1 Unless earlier terminated as provided below, the term of this Agreement
shall be for three (3) years from the Effective Date and, unless either
party gives thirty (30) days notice of non-renewal prior to the end of the
initial term, this Agreement shall automatically renew for successive one
(1) year periods.
8.2 If either party hereto materially breaches any of the terms and conditions
of this Agreement, the other party may give written notice to the
defaulting party specifying the actions or omissions which constitute a
material breach of this Agreement, and in the event that any material
breach so indicated shall not be remedied by the defaulting party within
thirty (30) days after such notice, the party not in default may by
further written notice to the defaulting party terminate this Agreement,
and, except as expressly provided otherwise in this Agreement, this
Agreement and all the rights and obligations contained herein shall
terminate five (5) days after the defaulting party's receipt of such
notice of termination. Failure of either party to so terminate this
Agreement due to a material breach on the part of the other party shall
not prejudice its rights to terminate for a subsequent material breach by
the other.
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8.3 All licenses and sublicenses granted to customers and other licensees under
this Agreement, and all provisions of Sections 6.0, 7.0, 8.0, 9.0, 10.0 and
11.0, shall survive any expiration or termination of this Agreement and
shall bind the parties and their successors, heirs, assigns and legal
representatives. In addition, Licensor's obligations under Section 4 and 5
shall survive for [*] after any expiration or termination of this Agreement
in order for Dell to satisfy its then existing contractual obligations to
its customers and licensees. Dell shall retain a limited license in
accordance with Section 2 to use the Licensed Product(s) in order to
satisfy such obligations and to exhaust its inventory of Licensed
Product(s) existing at expiration or termination, provided that Dell's
right to exhaust any such inventory shall not extend beyond [*] after
expiration or termination. Thereafter, Dell agrees to return or destroy all
additional copies of the Licensed Product(s) in its possession.
9.0 LIMITATION OF LIABILITIES
9.1 EXCEPT AS SET FORTH BELOW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER ANY PART OF THIS
AGREEMENT EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 THE LIMITATIONS OF LIABILITY SET FORTH ABOVE, SHALL NOT APPLY TO ANY OF
LICENSOR'S OBLIGATIONS OR LIABILITIES UNDER SECTION 6 "REPRESENTATIONS AND
WARRANTIES" AND SECTION 7 "INDEMNIFICATION". LICENSEE'S SOLE AND TOTAL
LIABILITY FOR ANY CAUSE OF ACTION SHALL BE LIMITED TO A MAXIMUM OF FIFTY
PERCENT (50%) OF THE PAYMENTS PREVIOUSLY MADE OR DUE BY LICENSEE TO
LICENSOR UNDER THIS AGREEMENT.
10.0 CONFIDENTIAL INFORMATION
10.1 The parties agree that information exchanged under this Agreement that is
considered by either party to be confidential information will be subject
to the terms and conditions of the non-disclosure agreement in place
between the parties. If the parties have not executed a non-disclosure
agreement, the parties will negotiate in good faith the terms of such an
agreement. Licensor shall not provide to Dell any information that is
considered confidential information of any third party.
11.0 MISCELLANEOUS
11.1 This Agreement shall in no way preclude Dell from independently
developing, having developed or acquiring or marketing any products or
services nor shall it in any way preclude Dell from entering into any
similar agreement with any other party.
11.2 Dell shall have full freedom and flexibility in its decisions concerning
the distribution and marketing of the Licensed Product(s) including,
without limitation, the decision of whether or not to distribute or
discontinue distribution of the Licensed Product(s). Dell does not
guarantee that its marketing, of the Licensed Product(s) will be
successful.
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11.3 Neither this Agreement or any rights or obligations contained therein, may
be assigned or delegated by Licensor without the prior written consent of
Dell. Such consent shall not be unreasonably be withheld.
11.4 Licensor is an independent contractor. Licensor is not a legal
representative or agent of Dell, nor shall Licensor have the right or
authority to create or incur any liability or any obligation of any kind,
express or implied, against, or in the name of, or on behalf of Dell.
11.5 [*]
11.6 Licensor shall not publicize the existence of this Agreement with Dell nor
refer to Dell in connection with any promotion or publication without the
prior written approval of Dell. Further, Licensor shall not disclose the
terms and conditions of this Agreement to any third party, including, but
not limited to, any financial terms, except as required by law or with
Dell's prior written consent.
11.7 Licensor shall comply with all applicable governmental laws, statutes,
ordinances, administrative orders, rules and regulations including,
without limitation, those related to the export of technical materials.
Licensor shall provide Dell with prompt written notice of any export
restrictions related to the Licensed Product(s).
11.8 Any and all written notices, communications and deliveries between
Licensor and Dell with reference to this Agreement shall be deemed made on
the date of mailing if sent by registered or certified mail to the
respective address of the other party as follows:
In the case of Dell: Dell Products L.P.
One Dell Way
BBP, Box 4
Round Rock, TX 78682
Attn: Strategic Commodity Manager
Software Procurement
In the case of Licensor: Intervideo
47350 Fremont Blvd.
Fremont, CA 94538
Attn: Joe Monastiero
VP of Marketing & Sales
11.9 This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Texas, U.S.A. without regards for its rules of
conflict of laws, as if this Agreement was executed in and fully performed
within the State of Texas. Both parties hereby waive any
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right to a trial by jury relating to any dispute arising under or in
connection with this Agreement.
11.10 Should any provision herein be held by a court of competent jurisdiction
to be illegal, invalid or unenforceable, such provision shall be modified
to reflect the intentions of the parties. All other terms and conditions
shall remain in full force and effect.
11.11 No amendment, modification or waiver of any provision of this Agreement
shall be effective unless set forth in a writing executed by an authorized
representative of each party. No failure or delay by either party in
exercising any right, power or remedy will operate as a waiver of any such
right, power or remedy. No waiver of any provision of this Agreement shall
constitute a continuing waiver or a waiver of any similar provision unless
expressly set forth in a writing signed by an authorized representative of
each party.
11.12 Since Dell transacts business with the United States government, Licensor
must comply with the applicable federal laws and Federal Acquisition
Regulations ("FARs") including the following:
It is Dell's policy to take affirmative action to provide equal
employment opportunity without regard to race, religion, color,
national origin, age, sex, disability, veterans status or any other
legally protected status. As a condition of doing business, Dell
requires Licensor to practice equal opportunity employment and to
comply with Executive Order 11246, as amended, Section 503 of the
Rehabilitation Act of 1973, and Section 4212 of the Vietnam Era
Veteran's Readjustment Assistance Act of 1974, all as amended, and the
relevant Regulations and Orders of the U.S. Secretary of Labor.
Additionally, to the extent required by applicable law, the following
sections of Chapter 60 of Title 41 of the Code of Federal Regulations
are incorporated by reference in this Agreement and each Order: 41 CFR
60-1.4(a); 41 CFR 60-1.8; 41 CFR 60-741; 41 CFR 60-250; 41 CFR 60-1.7;
41 CFR 60-1.40.
It is the policy of the United States (FAR 52.219-8) that small
business concerns, small business concerns owned and controlled by
socially and economically disadvantaged individuals and small business
concerns owned and controlled by women shall have the maximum
practicable opportunity to participate in performing contracts for any
Federal agency. Licensor agrees to comply with this policy and to
provide reporting of data as requested to the Small Business Liaison
Officer, Dell Computer Corporation, One Dell Way, Round Rock, Texas,
78682.
11.13 This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter contained herein, and merges all
prior discussions and agreements, both oral and written, between the
parties. Nothing in any purchase order, invoice, order acknowledgment, or
other document of Licensor shall be of any effect whatsoever and may not
affect, alter, or modify the terms and conditions of this Agreement. If
the terms and
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conditions of this Agreement conflict with any terms of a Dell
purchase order relating to the Licensed Product(s), the terms and
conditions of this Agreement shall govern. The terms and conditions
set forth in Supplements are hereby incorporated into this Software
License Agreement by reference. If the terms and conditions of this
Software License Agreement conflict with any terms and conditions
contained in a Supplement, the terms and conditions of the Supplement
shall govern.
IN WITNESS WHEREOF, the parties hereto have duly executed this Software License
Agreement by their respective duly authorized officers to be effective as of the
Effective Date as first written above.
DELL PRODUCTS L.P. INTERVIDEO, INC.
By: /s/ Sharon Peterson By: /s/ Joe Monastiero
--------------------------------- --------------------------------
Title: Dir, WWSP Title: V.P.
------------------------------ -----------------------------
Date: 8/13/1999 Date: August 4th, 1999
------------------------------- ------------------------------
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SOFTWARE LICENSING AGREEMENT
THIS SUPPLEMENT is entered into as of this 4th day of August 1999 by and between
Dell Products L.P. (hereinafter "Dell") with its principal place of business at
One Dell Way, Round Rock, Texas 78682, and Intervideo, Inc., a California
corporation having a principal place of business at 47350 Fremont Blvd.,
Fremont, CA 94538 (hereinafter "Licensor").
This Supplement provides additional terms and conditions to the above referenced
Software License Agreement. All terms and conditions of the Software License
Agreement apply to this Supplement and the terms and conditions of this
Supplement are hereby incorporated by reference into the Software License
Agreement.
1.0 DESCRIPTION OF LICENSED PRODUCT(S)
I. Licensed Software:
A. WinDVD(TM)
Software is personal computer application software object code
including modules for MPEG-2 video decode, Dolby Digital/MPEG audio
decode, an audio/video synchronization engine, a DVD Navigator, Copy
Protection Software, and a Graphical User Interface. Version delivered
is to be used as a software bundle with Licensee's hardware products.
B. Technical specifications:
1. Video Decoding Support
A. Input Supported
- MPEG-1 Video Decoding (ISO/IEC 11172)
- MPEG-2 Video Decoding (ISO/IEC 13818)
B. Video Output Supported
- Up to 720 X 480 (NTSC)
- Up to 720 X 576 (PAL)
C. VGA Output Requirements For Licensee System
- Direct Draw Support for HW video window
- Color space conversion
- Color key support
D. Licensee System Requirements
- Intel MMX processor (PII preferred) or compatible
processor
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2. Audio Decoding Support
A. Dolby Digital AC-3
Input
- 48 kHz sampling rate
- 2 channel AC-3 encoded
- 5.1 channel AC-3 encoded
Output
- 2 channel stereo decoded stream
- 2 channel Pro-Logic encoded stream
- 16 bit Class "C" Dolby Certification
B. MPEG-1 Audio
- MPEG 1 Audio Decoding (ISO/IEC 11172)
3. Decoder Licensed Software Configuration
- MPEG 1 & 2 Video Decoding
- Dolby Digital AC-3 audio decoding
- MPEG-1 2 channel audio decoding
- Video/Audio Synchronization
- MP3 audio decoding
- VCD 1.0/1.1/2.0 title playback
4. Navigation
- Conforms substantially to the "DVD Specifications for read-only
Disc Version 1.0 Part 3 Video Specifications."
5. Graphical User Interface
A. Playback Control
- Fast Forward - Volume Control
- Fast Backward - Select drive
- Next Chapter - Eject
- Previous Chapter - Repeat
- Stop - Smooth Slow Motion
- Pause - Smooth Fast Forward
- Help - Play
- Time Line Search - Brightness Control
- Keypad Input - Title/Chapter Loop
B. Navigator Functions
- Audio language selection
- Parental control
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- Viewing angle selection
- Subtitle selection
- Select Titles/Menus
- Title
- Root
- Audio
- Subtitle
- Menu
- Chapter
6. Copy Protection (Navigator use only)
A. Regionalization
- Supports DVD regionalization code
B. Decryption
- Substantially supports CSS de-scambling and tamper
resistance requirements
C. Macrovision Requirements
- Required if NTSC encoder is used (Navigator
implementation only)
7. Localization
- IVI will provide support for English, Dutch, French,
Spanish, German, Italian, Traditional Chinese and Japanese
languages in our installation procedure and help files.
2.0 COMPENSATION
OEM Bundled Pricing:
---------------------------------------------------------------------------
Monthly Units Quarterly Units
---------------------------------------------------------------------------
[*] - [*] [*] - [*] $[*]
---------------------------------------------------------------------------
[*] - [*] [*] - [*] $[*]
---------------------------------------------------------------------------
[*] - + [*] - + $[*]
---------------------------------------------------------------------------
If InterVideo is to pass through the Dolby royalty to Dolby, please add $[*] for
2 channels.
DellPlus Pricing:
$[*] per unit. Dell will be responsible for all replication costs and cost of
materials.
3.0 DELIVERY SCHEDULE
Within 5 days of final qualification by Dell.
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4.0 TECHNICAL CONTACTS
David Silva, Applications Engineer
Chinn Chin, VP of Engineering
Chris Grell, Program Manager
IN WITNESS WHEREOF, the parties hereto have duly executed this Supplement to the
above referenced Software License Agreement by their respective duly authorized
officers.
DELL PRODUCTS L.P. INTERVIDEO, INC.
By: Sharon Peterson By: Joe Monastiero
-------------------------------- --------------------------------
Title: Dir, WWSP Title: V.P.
----------------------------- -----------------------------
Date: 8/13/1999 Date: August 4th, 1999
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SOFTWARE LICENSING AGREEMENT
Supplement Two
THIS AMENDED AND RESTATED SUPPLEMENT Two is entered into as of this 31st day of
July 2000 (the "Supplement") by and between Dell Products L.P. (hereinafter
"Dell") with its principal place of business at One Dell Way, Round Rock, Texas
78682, and Intervideo, Inc., a California corporation having a principal place
of business at 47350 Fremont Blvd., Fremont CA 94538 (hereinafter "Licensor").
Dell and Licensor are parties to a Software License Agreement entered into as of
the 4th day of August 1999 (the "Software License Agreement") and a Supplement
entered into as of the same date (the "First Supplement"). As of the date
hereof, this Supplement Two will supercede the First Supplement.
This Supplement provides additional terms and conditions to the above referenced
Software License Agreement. All terms and conditions of the Software License
Agreement apply to this Supplement and the terms and conditions of this
Supplement are hereby incorporated by reference into the Software License
Agreement.
1.0 DESCRIPTION OF LICENSED PRODUCT(S)
I. Licensed Software:
A. WinDVD(TM)
Software is personal computer application software object code
including modules for MPEG-2 video decode, Dolby Digital/MPEG audio
decode, an audio/video synchronization engine, a DVD Navigator, Copy
Protection Software, and a Graphic User Interface. Version delivered
is to be used as a software bundle with Licensee's hardware products.
B. Technical specifications:
1. Video Decoding Support
A. Input Supported
- MPEG-1 Video Decoding (ISO/IEC 11172)
- MPEG-2 Video Decoding (ISO/IEC 13818)
B. Video Output Supported
- Up to 720 X 480 (NTSC)
- Up to 720 X 576 (PAL)
<PAGE>
C. VGA Output Requirements For Licensee System
- Direct Draw Support for HW video window
- Color space conversion
- Color key support
D. Licensee System Requirements
- Intel MMX processor (PII preferred) or compatible processor
2. Audio Decoding Support
A. Dolby Digital AC-3
Input
- 48kH sampling rate
- 2 channel AC-3 encoded
- 5.1 channel AC-3 encoded
Output
- 2 channel stereo decoded stream
- 2 channel Pro-Logic encoded stream
- 16 bit Class "C" Dolby Certification
B. MPEG-1 Audio
- MPEG-1 Audio Decoding (ISO/IEC 11172)
3. Decoder Licensed Software Configuration
- MPEG 1 & 2 Video Decoding
- Dolby Digital AC-3 audio decoding
- MPEG-1 2 channel audio decoding
- Video/Audio Synchronization
- MP3 audio decoding
- VCD 1.0/1.1/2.0 title playback
4. Navigation
- Conforms substantially to the "DVD Specifications for read-
only Disc Version 1.0 Part 3 Video Specifications".
5. Graphical User Interface
A. Playback Control
- Fast Forward - Volume Control
- Fast Backward - Select drive
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<PAGE>
- Next Chapter - Eject
- Previous Chapter - Repeat
- Stop - Smooth Slow Motion
- Pause - Smooth Fast Forward
- Help - Play
- Time Line Search - Brightness Control
- Keypad Input - Title/Chapter Loop
B. Navigator Functions
- Audio language selection
- Parental control
- Viewing angle selection
- Subtitle selection
- Select Titles/Menus
- Title
- Root
- Audio
- Subtitle
- Menu
- Chapter
6. Copy Protection (Navigator use only)
A. Regionalization
- Supports DVD regionalization code
B. Decryption
- Substantially supports CSS de-scrambling and tamper
resistance requirements
C. Macrovision Requirement
- Required if NTSC encoded is used (Navigator
implementation only)
7. Localization
- IVI will provide support for English, Dutch, French, Spanish,
German, Italian, Traditional Chinese, Simplified Chinese,
Brazilian Portuguese, Korean, Thai and Japanese languages in
our installation procedure and help files.
II. Licensed Software:
A. WinDVD(TM) with Dolby Headphone
Software is personal computer application software object code
including modules for MPEG-2 video decode, Dolby Digital/MPEG
audio decode, an audio/video synchronization engine, a DVD
Navigator, Copy Protection Software, and a
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<PAGE>
Graphical User Interface. Version delivered is to be used as a
software bundle with Licensee's hardware products.
B. Technical specifications:
1. Video Decoding Support
A. Input Supported
- MPEG-1 Video Decoding (ISO/IEC 11172)
- MPEG-2 Video Decoding (ISO/IEC 13818)
B. Video Output Supported
- Up to 720 X 480 (NTSC)
- Up to 720 X 576 (PAL)
C. VGA Output Requirements For Licensee System
- Direct Draw Support for HW video window
- Color space conversion
- Color key support
D. Licensee System Requirements
- Intel MMX processor (PII preferred) or
compatible processor
2. Audio Decoding Support
A. Dolby Digital AC-3
Input
- 48kH sampling rate
- 2 channel AC-3 encoded
- 5.1 channel AC-3 encoded
Output
- 2 channel stereo decoded stream
- 2 channel Pro-Logic encoded stream
- 16 bit Class "C" Dolby Certification
- 5.1 channel AC-3 decoded stream
- Dolby Headphone decoded stream
B. MPEG-1 Audio
- MPEG-1 Audio Decoding (ISO/IEC 11172)
4. Decoder Licensed Software Configuration
- MPEG 1 & 2 Video Decoding
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<PAGE>
- Dolby Digital AC-3 audio decoding
- MPEG-1 2 channel audio decoding
- Video/Audio Synchronization
- MP3 audio decoding
- VCD 1.0/1.1/2.0 title playback
- Dolby Headphone audio decoding
4. Navigation
- Conforms substantially to the "DVD Specifications
for read-only Disc Version 1.0 Part 3 Video
Specifications".
5. Graphical User Interface
A. Playback Control
- Fast Forward - Volume Control
- Fast Backward - Select drive
- Next Chapter - Eject
- Previous Chapter - Repeat
- Stop - Smooth Slow Motion
- Pause - Smooth Fast Forward
- Help - Play
- Time Line Search - Brightness Control
- Keypad Input - Title/Chapter Loop
B. Navigator Functions
- Audio language selection
- Parental control
- Viewing angle selection
- Subtitle selection
- Select Titles/Menus
- Title
- Root
- Audio
- Subtitle - Menu - Chapter
6. Copy Protection (Navigator use only)
A. Regionalization
- Supports DVD regionalization code
B. Decryption
- Substantially supports CSS
de-scrambling and tamper resistance
requirements
-5-
<PAGE>
C. Macrovision Requirement
- Required if NTSC encoder is used
(Navigator implementation only)
7. Localization
- IVI will provide support for
English, Dutch, French, Spanish,
German, Italian, Traditional
Chinese, Simplified Chinese,
Brazilian Portuguese, Korean, Thai
and Japanese languages in our
installation procedure and help
files.
C. Exclusion from Source Code Escrow Provisions
The definition of Licensed Product(s) in section 1.2 of the
Software Licensing Agreement shall not include the Dolby
Headphone processing software licensed to Licensor by Lake
Technology Limited for purposes of section 2.3 and 2.4 of
Software Licensing Agreement.
2.0 COMPENSATION
OEM Bundled Pricing:
Win DVD(TM) and WinDVD(TM)with Dolby Headphone
--------------------------------------------
Quarterly Units
--------------------------------------------
[*] - [*] $[*]
--------------------------------------------
[*] - [*] $[*]
--------------------------------------------
[*] - + $[*]
--------------------------------------------
The quantities for all Licensed Products shall be cumulative for the purpose of
calculating royalties and shall be calculated on a quarterly basis.
A Dolby
royalty of $[*] per unit (for two channels) will be added to each WinDVD product
which includes the applicable Dolby technology.
An additional Dolby royalty of $[*] per unit will be added to each
WinDVD(TM)with Dolby Headphone product which includes the applicable Dolby
technology. The total Dolby royalty for WinDVD(TM)with Dolby Headphone product
will be $[*].
DellPlus Pricing:
Notwithstanding anything to the contrary in the Software License Agreement or
this Supplement:
The DellPlus price for the WinDVD(TM) products shall be $[*] per unit which
includes the $[*] Dolby royalty.
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<PAGE>
The DellPlus price for the WinDVD(TM) with Dolby Headphone product shall be
$[*] per unit which includes both the $[*] and $[*] Dolby royalties.]
Dell will be responsible for all replication costs and cost of materials.
Replacement Project:
During the period of [*], Dell shall be able to (i) offer the Licensed Product
as a no charge Upgrade for up to a maximum of [*] existing Dell Customers who
previously purchased products from Dell incorporating DvD software from a
supplier other than Licensor; and (ii) offer the Licensed Product as a no charge
Upgrade to Dell Customers that accept Dell's offer to Upgrade their operating
systems from Windows 98 to Windows Millennium Edition. Dell agrees that it will
be responsible for Dolby royalties, if any, associated with such Upgrades.
3.0 DELIVERY SCHEDULE
Within 5 days of final qualification by Dell.
4.0 TECHNICAL CONTACTS
David Silva, Applications Engineer
Chinn Chin, VP of Engineering
Chris Grell, Program Manager
5.0 ADDITIONAL SUPPORT
During the term of this Agreement, Licensor shall appoint a designated Program
Manager who shall be available on a dedicated basis to support Dell in all areas
relating to the Licensed Product(s). Dell acknowledges and agrees that Licensor
shall have a reasonable period of time to [*] a Program Manager into the Dell
account. Licensor will use its reasonable efforts to hire a Program Manager in
one month and integrate the Program Manager hired into the Dell account within
[*] months from the date hereof.
During the term of this Agreement, Licensor shall, [*], purchase sufficient
quantities of Rev A versions of Dell computer systems and peripherals for
all existing and newly released Dell computer systems and peripherals to
provide timely ongoing technical support, development, maintenance and
services for the Licensed Product(s). At a minimum, Licensor shall [*]
[*] systems of each Dell platform. Notwithstanding anything herein to the
contrary, in no event will Licensor be required to [*] more than $[*] of
Dell equipment per year for the foregoing purposes.
6.0 OBJECT AND SOURCE CODE LICENSE
Licensor and Dell acknowledge and agree that for purposes of Section 2 of the
Software License Agreement, the phrase "Dell systems" includes add-on DVD drives
so that Dell may sell the Licensed Product(s) with DVD drives as Customer kits.
-7-
<PAGE>
7.0 SOFTWARE TESTING
During the term of this Agreement, Licensor shall adhere to the following
Doublebyte Testing for all Licensed Products. In the event Dell changes third
party vendors for testing purposes, Dell will provide Licensor reasonable of
said charge.
Requirements For Doublebyte Testing at XXCAL
7/16/99
Dell is implementing a new requirement for all Doublebyte language testing prior
to submission to Dell development. The scope of this testing is limited, at this
time, to all Multimedia devices. Dell has selected XXCAL, Inc. as the 3/rd/
party vendor to conduct this testing. All MM suppliers that sell product to Dell
will now be required to submit and pay for testing at XXCAL. This testing will
encompass all Doublebyte languages required in the business award. Below is a
breakdown of those requirements:
1. All suppliers submitting to XXCAL will be given a discounted rate on
hourly testing.
2. A generic test plan for each commodity will be provided by Dell and
will be updated periodically to reflect changes in testing methodology
and to enhance test coverage.
3. Japanese language testing will include functional and translational
testing. All other languages will be tested for translation only.
4. All HTML testing will be limited to text translation only, testing for
format and links will be done by Dell's Information Development.
5. All costs for initial and regression testing will be incurred by the
supplier.
6. All regression testing will be done at XXCAL unless capacity restraints
at XXCAL adversely impact Dell's overall schedule.
7. Suppliers will provide XXCAL with their schedule for test submission as
early in the process as possible to ensure proper scheduling and
resource loading.
8. XXCAL will send results of testing to the supplier and to the
appropriate Dell parties upon test completion.
9. Final signoff for acceptance into Dell will require approval signature
from the appropriate Dell parties.
10. Suppliers will notify Dell procurement immediately if XXCAL is unable
to commit to required schedule.
11. Current Doublebyte languages include but are not limited to Japanese,
Traditional Chinese, Simplified Chinese, Thai and Korean. Those
requirements will vary by product and will be defined in the business
contract.
The contact at XXCAL for testing is:
[*]
1500 W. Olympic Blvd.
Suite 325
Los Angeles, CA 90064
[*]
[*]
-8-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Supplement to the
above referenced Software License Agreement by their respective duly authorized
officers.
DELL PRODUCTS L.P. INTERVIDEO, INC.
By: /s/ Illegible By: /s/ Kenneth Boschwitz
------------------------------ -----------------------------
Title: VP WW Processing Title: VP & General Counsel
--------------------------- --------------------------
Date: 8-31-00 Date: 30 August 2000
---------------------------- ---------------------------
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<PAGE>
AMENDMENT ONE
to
SOFTWARE LICENSING AGREEMENT
THIS AMENDMENT ONE is entered into as of this 5th day of May, 2001 ("Effective
Date") by and between Dell Products L.P. (hereinafter "Dell") with its principal
place of business at One Dell Way, Round Rock, Texas 78682, and Intervideo,
Inc., a California corporation having a principal place of business at 47350
Fremont Blvd., Fremont, CA 94538 (hereinafter "Licensor").
Dell and Licensor are parties to a Software License Agreement entered into as of
the 4/th/ day of August, 1999 and a Supplement Two to the Software License
Agreement entered into as of the 31st day of July, 2000 (collectively the
"Agreement").
This Amendment One ("Amendment") provides additional terms and conditions to the
above referenced Software License Agreement. All terms and conditions of the
Software License Agreement apply to this Amendment and the terms and conditions
of this Amendment are hereby incorporated by reference into the Software License
Agreement. In the event of a disagreement between the terms and conditions of
the Amendment and the Agreement, the terms and conditions of this Amendment
shall control.
1.0 DESCRIPTION OF LICENSED PRODUCT(S)
Licensed Software: WinDVD and WinDVD with Dolby Headphone
2.0 COMPENSATION
OEM Bundled Pricing:
WinDVD(R) and WinDVD(R) with Dolby Headphone royalties will be as follows:
Additional Total Royalty
Royalty with Additional for both 2
Licensed Dolby 2 Dolby royalty Channel and
Volume in Product Channel if for Headphone Headphone
Time Period units Royalty supported channel technology
----------- --------- -------- ------------ ------------- -------------
[*] [*] $[*] per copy $[*] per copy $[*] $[*]
[*] [*] $[*] per copy $[*] per copy $[*] $[*]
[*] [*] $[*] per copy $[*] per copy $[*] $[*]
and thereafter
<PAGE>
Notwithstanding, if Dell ships [*] or more units in [*] or [*], the Royalty
for the Licensed Product will immediately decrease to $[*] per copy for that
quarter and for subsequent quarters. For, example, if Dell ships [*] units in
Q2, Dell's royalty shall be $[*] for the units shipped in Q2 and subsequent
quarters.
5.0 ADDITIONAL SUPPORT
During the term of this Agreement, Licensor shall provide Program Manager
services to support Dell in all areas relating to the Licensed Product(s).
Licensor will provide a "Lead Program Manager" who will involve as many people
as necessary in order to quickly and effectively resolve current or future
issues. Licensor is not required to appoint a Program Manager dedicated to Dell.
During the term of this Agreement, Licensor shall, [*] of Dell computer systems
and peripherals for all existing and newly released Dell computer systems and
peripherals to provide timely ongoing technical support, development,
maintenance and services for the Licensed Product(s). At a minimum, Licensor
shall [*] systems of each Dell platform. Notwithstanding anything
herein to the contrary, in no event will Licensor be required to [*] more
than $[*] of Dell equipment per year for the foregoing purposes.
This Amendment sets forth the entire agreement and understanding of the parties
relating to the subject matter contained herein, and merges all prior
and discussions and agreements, both oral and written, between the parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment One to
the above referenced Software License Agreement by their respective duly
authorized officers.
DELL PRODUCTS L.P. INTERVIDEO, INC.
By: By: /s/ Jesse Lechuga
------------------------------------ ---------------------------------
Title: Title: V.P. Sales
--------------------------------- ------------------------------
Date: Date: 6/25/01
---------------------------------- -------------------------------
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<PAGE>
SECOND AMENDMENT TO SOFTWARE LICENSING AGREEMENT
THIS SECOND AMENDMENT TO THE SOFTWARE LICENSE AGREEMENT (the "Second
Amendment") is entered into as of the 29th day of April, 2002 (the "Effective
--------- ---------
Date") by and between Dell Products, L.P. ("Dell") with its principal place of
---- ----
business at One Dell Way, Round Rock, Texas 78682 and InterVideo, Inc., a
Delaware corporation having its principal place of business at 47350 Fremont
Blvd., Fremont, California 94538 ("Licensor"), collectively (the "Parties").
-------- -------
WHEREAS, the Parties entered into a Software Licensing Agreement on August
4, 1999, as modified by the Supplement entered into on August 4, 1999, by
Supplement Two, entered into on July 31, 2000, and by Amendment One, entered
into on May 5, 2001, and as further amended by mutual agreement (the foregoing,
collectively, the "Original License Agreement");
--------------------------
WHEREAS, the Parties desire to further amend the Original License Agreement
as set forth below;
THEREFORE, in consideration of the promises and mutual promises contained
in this Second Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. Section 2.0 of the most recent Supplement to the Original License Agreement
---------------------------------------------------------------------------
shall be replaced in its entirety by:
-------------------------------------
2.0 COMPENSATION
OEM Bundled Pricing:
Royalties for (i) WinDVD(R), (ii) WinDVD(R) with Dolby 2 Channel, (iii)
WinDVD(R) with Dolby Headphone, and (iv) WinDVD(R) with Dolby 2 Channel and
Dolby Headphone:
Time Period Volume in Licensed Additional Additional Dolby Total Additional
units Product Royalty Royalty with royalty for Royalty for both
Dolby 2 Channel Headphone Dolby 2 Channel and
if supported Headphone
[*] [*] $[*] per copy $[*]per copy $[*] per copy $[*] per copy
[*] [*] $[*] per copy $[*]per copy $[*] per copy $[*] per copy
[*] [*] $[*] per copy $[*]per copy $[*] per copy $[*] per copy
[*] [*] $[*] per copy $[*]per copy $[*] per copy $[*] per copy
<PAGE>
Quantities of Licensed Products are cumulative for the purpose of calculating
royalties and must be calculated on a quarterly basis (based on Dell's fiscal
quarters, as set forth in the Original License Agreement).
Dell will be responsible for all replication costs and cost of materials.
2. The following Section 12.0 is hereby added to the Original License Agreement:
-----------------------------------------------------------------------------
12.0 Right to Make a Bid
Dell shall use commercially reasonable efforts to inform Licensor, in writing,
if at any time it is undertaking or planning to undertake product development or
modifications related to video or audio playback, or that otherwise might
incorporate or use any technology, product, or software created by Licensor
("Potential Project"). With respect to the information that Dell provides
-----------------
regarding a Potential Project, Dell will use commercially reasonable efforts to
include sufficient detail to enable Licensor to determine whether its
technology, products or software are appropriate for the Potential Project.
Licensor may bid on Potential Projects. While Dell is not obligated to accept
any bid by Licensor, Dell agrees to consider Licensor's proposal in a good
faith.
3. Except as otherwise specified, all terms used in this Second Amendment have
the same meaning as such terms have in the Original Agreement. Except as
specifically set forth in this Second Amendment, the relationship between the
parties with respect to the subject matter of the Original Agreement continues
to be governed by the terms of the Original Agreement, the provisions of which
remain in full force and effect. In the event of a conflict between the terms of
the Original Agreement and the terms of this Second Amendment, the terms of this
Second Amendment control.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Second Amendment
to the Software Licensing Agreement by their respective duly authorized
officers.
DELL PRODUCTS, L.P. INTERVIDEO, INC.
By: /s/ Scott Crawley By: /s/ Steve Ro
--------------------- -----------------------
Title: Director Title: CEO
------------------ --------------------
Date: April 29, 2002 Date: April 29, 2002
------------------- ---------------------
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