NEST SDK Developer Product Distribution License - Novell Inc. and Kofax Image Products Inc.
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NOVELL, INC.
NEST SDK Developer Product Distribution License Exhibit
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This NEST SDK Developer Product Distribution License Exhibit (the "Exhibit") to
the NEST SDK 1. x Supplement (the "Supplement") and the Novell Embedded Systems
Technology Master Agreement (the "Agreement") is entered into by Novell and
Developer. This Exhibit is effective as of July 31st, 1996 ("Distribution
License Effective Date").
1. INTRODUCTION. The purpose of this Exhibit is to allow Developer, subject to
the restrictions contained in this Exhibit and the Agreement, to
sublicense, duplicate, and distribute Qualifying Developer Products
developed under the Agreement between Novell and Developer. All terms and
conditions of the Agreement are incorporated herein by reference and shall
have full force and effect between the parties in the interpretation of
this Exhibit.
2. DEFINITIONS. Capitalized terms in this Exhibit have the meanings stated
below or defined in the Agreement.
2.1 "Software" means binary code and Program Tools or binary code produced
from Program Tools that are linked or included in Developer Product
pursuant to the Supplement and is subject to all terms and conditions
of that Supplement.
2.2 "Sublicense" means an executed agreement or shrink-wrap agreement or
electronic license that an end user consents to by performing a
physical act (e.g., pushing a button on a keyboard) before utilizing
the Qualifying Developer Product which at minimum provides the
following or equivalent protection to Novell:
2.2.1 restricts the number of copies of the Software to one operating
copy per Qualifying Developer Product;
2.2.2 permits only those number of copies of the Software as are
essential to back up or archival use of the Software;
2.2.3 states that no title to the intellectual property contained in
the Software is transferred to the sublicensee and it is
retained by Novell;
2.2.4 represents that the human readable code of the Software (source
code) is not sublicensed to the sublicensee;
2.2.5 restricts sublicensees from de-compiling and reverse assembling
the software to discover the source code; and
2.2.6 prohibits time-sharing, lease, rental, distribution, transfer,
sublicense, and unauthorized use of the Software, without prior
written consent.
3. LICENSES AND RESTRICTIONS.
3.1 Distribution License. Subject to the terms and conditions of this
Exhibit and the Agreement, Novell grants to Developer, and Developer
accepts, a non-exclusive, non-transferable, world-wide license to
reproduce and distribute (directly or indirectly) the Qualifying
Developer Products, being the Developer Products identified below that
are found to meet the Qualifying Developer Product requirements, but
only under a Sublicense between Developer and its end users or, in the
case of distribution through Developer's OEM customer, Developer must
obtain binding contractual assurances that Developer's OEM customers
will only distribute the Qualifying Developer Products under a
Sublicense between Developer's OEM customer and its end users.
Developer Product Title: NetScan(TM)
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NEST Components Licensed: IPX/SPX, Nest Requester
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Developer Product Title:
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NEST Components Licensed:
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Developer Product Title:
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CONFIDENTIAL TREATMENT
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NEST Components Licensed:
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Product names identified in this Section are solely to assist Novell
in program administration, but not for trademark licensing purposes.
Novell reserves the right to take action in the event any Developer
Product name violates Novell rights.
4. CONSIDERATION. In exchange for the rights granted by Novell to Developer
under this Exhibit, Developer agrees to pay Novell a per copy royalty per
the number of copies of the Qualifying Developer Products it transfers,
sells, sublicenses or authorizes for use. A non-refundable royalty payment
("Non-refundable Royalty Payment") is set forth in the Royalty Schedule
section below. Notwithstanding the foregoing, Developer will report all
such royalties due to Novell on a monthly basis using calendar quarters.
4.1 Monthly Royalty. In addition, Developer shall pay to Novell a royalty
based upon the number of copies of each Qualifying Developer Product
transferred, sold or licensed by Developer. Royalties shall accrue
upon transfer, sale or license of Qualifying Developer Products by
Developer and shall be paid to Novell no later than forty-five (45)
days after the end of each month.
4.2 Minimum Royalty. Developer shall pay to Novell a guaranteed annual
minimum royalty of [ * ] [ * ] for the Qualifying Developer
Product that includes the NEST Client Requester and/or NetWare IPX/SPX
Modules. In addition, should Qualifying Developer Products also
include the NPrinter modules, Developer shall pay to Novell a
guaranteed annual minimum royalty of [ * ] [ * ].
4.3 Audit. Developer shall maintain complete and accurate accounting
records, in accordance with generally accepted accounting practices,
to support and document royalty amounts due under this Exhibit and
shall retain such records for three (3) years after payment is made.
Developer shall, upon written request of Novell, provide audit access
to such records to Novell. If Developer so decides, a mutually
acceptable independent accounting firm may conduct the audit at
Developer's expense. Such access shall be granted only during normal
business hours and no more frequently than once in each calendar year.
All information received during the audit shall be held in confidence
by the parties.
4.4 Royalty Schedule
<CAPTION>
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Item Base Price Discount Schedule
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Units Percentage
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IPX/SPX [ * ] [ * ] [ * ]
NEST Requester [ * ] [ * ] [ * ]
PServer/NPrinter [ * ] [ * ] [ * ]
NEST Autoroute [ * ] [ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
* Confidential portions omitted and
filed separately with the
Securities and Exchange Commission.
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5. DEVELOPER'S DUTIES.
5.1 Qualifying Developer Products. Qualifying Developer Products may only
be sublicensed and distributed according to the terms and conditions
of this Exhibit.
5.2 Operating System Companies. Notwithstanding any other provision(s) of
this Agreement, Developer agrees that it may not authorize the
distribution of all or any portion of the Qualifying Developer
Products through companies that design, develop, or market computer
operating systems without the prior written consent of an authorized
Novell representative.
5.3 Protection. Developer agrees to take all reasonable steps to protect
the Program Tools and related Documentation Tools from unauthorized
copying or use. The source code of the Program Tools provided in
binary form represents and embodies trade secrets of Novell which are
not licensed to Developer. Developer agrees not to reverse assemble or
reverse compile this binary code to discover the source code.
5.4 Documentation. Developer agrees to include a conspicuous statement in
its documentation identifying Developer as the primary support contact
for the Qualifying Developer Products distributed by Developer. Upon
request, Developer agrees to provide Novell with three copies of its
then current documentation.
5.5 End-user support. Developer agrees to provide all technical support
for all aspects of the Qualifying Developer Product.
5.6 Yes Logo. Developer agrees to prominently display the Yes Logo on
Qualifying Developer Product, and all marketing materials, product
packaging, and advertising material related to Qualifying Developer
Product; to emphasize the Yes Logo in at least one Qualifying
Developer Product advertisement, Qualifying Developer Product line
advertisement, or corporate positioning advertisement in an
appropriate national publication; and provide appropriate product and
program descriptions in all materials bearing the Yes Logo.
6. TERM AND TERMINATION.
6.1 Term. The term of this Exhibit shall be one year from the Distribution
License Effective Date of and shall automatically renew for successive
one year periods unless either party provides thirty (30) days or more
prior written notice of its intent to terminate this Exhibit.
6.2 Termination for Convenience. Either party may terminate this Exhibit
and the licenses granted by Novell under the Licenses and Restrictions
Section of this Exhibit at any time without cause by giving 180
calendar days' prior written notice to the other party. In the case
that Novell exercises its right to terminate for convenience,
Developer may distribute Qualifying Developer Product then in
inventory for which Developer has already paid royalties.
7. SIGNATURES.
NOVELL, INC. (DEVELOPER) Kofax Image Products
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Signature: /s/ JAMES T. SULLIVAN Signature: /s/ KEVIN DRUM
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Name: James T. Sullivan Name: Kevin Drum
Title: VP OEM Sales Title: Vice President-Marketing
Date: 17 October 1996 Date: July 31, 1996
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