Master Software License Agreement - Hewlett-Packard Co. and Adaptec Inc.
MASTER SOFTWARE LICENSE AGREEMENT (#ADAP001)
This MASTER SOFTWARE LICENSE AGREEMENT (this "Agreement"), number ADAP001, is
made, and is effective, as of December 4, 1999 ("Effective Date") by and between
HEWLETT-PACKARD COMPANY ("HP"), and ADAPTEC, INC. ("Licensor").
1. DEFINITIONS
1.1 "PROGRAM" shall mean Licensor's software program(s) listed
and described in a SOW attached hereto, including all Bug Fixes and Enhancements
for such Programs delivered to HP on or after the Effective Date, and localized
versions available for such Programs.
1.2 "ENHANCEMENTS" shall mean all (1) updates, modifications,
new features, new functionalities or upgrades of a Program made available by
Licensor for general public release without additional fees; (2) updates,
modifications, new features, new functionalities or upgrades of a Program made
by Licensor at the request of HP and pursuant to a SOW; and (3) updates,
modifications, new features, new functionalities or upgrades of a Program made
by Licensor and offered for license to HP and for which HP has purchased
licenses that permit bundling on HP Products. Enhancements shall not include New
Releases.
1.3 "BUG FIXES" shall mean all error corrections or other
modifications of a Program which are necessary to make the Program conform to
the Specifications set forth in a SOW.
1.4 "SPECIFICATIONS" shall mean the functional specifications
of a Program as described in a SOW.
1.5 "GOLD BYTES" shall mean the master copy of a Program, in
object code form, and any additional software necessary to load such Program on
a HP Product, provided on the media described in a SOW.
1.6 "DOCUMENTATION" shall mean the manuals (including technical
manual) and other standard documentation that Licensor makes available with a
Program, listed and described in a SOW.
1.7 "COMPLETE COPY" of a Program shall include (i) Gold Bytes,
(ii) all Documentation and technical manuals for the Program in the form(s) and
on the media described in
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
a SOW, and (iii) any other documentation and information regarding the Program
which HP reasonably requests to accomplish evaluation and use of the Program as
contemplated in this Agreement.
1.8 "PROGRAM PLUS" means additions to a Program, and any
changes to such Program required to make such additions function, licensed by
Licensor directly to end users.
1.9 "HP PRODUCT" shall mean the HP products described in a SOW,
which may be amended by the parties from time to time to include new products.
1.10 "NEW RELEASE" shall mean a major upgrade or successor
version of a Program for which Licensor charges a separate license fee, and
which is designated by Licensor as a new release.
1.11 "PER COPY FEE" shall mean the amount set forth in a SOW
payable to Licensor by HP for the rights licensed herein.
1.12 "STATEMENT OF WORK" ("SOW") shall mean a document in the
form attached as Exhibit B describing the Division Specifications, Support,
other requirements such as Enhancements requested by HP, and the respective
obligations of the parties with respect thereto, as may be agreed upon by the
parties from time to time during the term of this Agreement.
2. DELIVERY AND ACCEPTANCE
2.1 DELIVERY. Licensor agrees to deliver to HP a Complete Copy
of the Program, no later than ten (10) days after the execution of this
Agreement or the applicable SOW, unless otherwise provided in such SOW.
2.2 ACCEPTANCE. HP shall have [*] days from the date of
receipt of a Complete Copy of the Program to evaluate the Program for conformity
with the Specifications, and either accept, or reject the Program. HP shall be
entitled to test and evaluate any Program by whatever means it deems appropriate
consistent with Licensor's fights in the Program. Licensor hereby grants to HP
any licenses necessary for HP to perform its evaluation. Subject to the
foregoing evaluation license grant, HP has the right to use third party
subcontractors to achieve the foregoing; provided, however, that any such
subcontractors will be parties to written agreements with HP containing
obligations no less restrictive than those in this Agreement. If HP identifies a
failure of a Program to meet the Specifications Licensor agrees to correct the
identified defects and resubmit the Program for re-evaluation under the same
acceptance procedure. In the event HP rejects a Program, it shall give Licensor
written notice of rejection stating the reasons for its unacceptability. No
payment shall be payable to Licensor until the Program has been accepted by HP
in writing or HP fails to reject the Program within such [*] day period.
2.3 ENHANCEMENTS. Licensor agrees to deliver to HP a
Complete Copy of any Enhancement within [*] days of its being released to
manufacturing by Licensor. HP shall have the right to test and evaluate the
Enhancement under the acceptance procedure described above.
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
3. RIGHTS GRANTED AND RESTRICTIONS
3.1 LICENSE TO THE PROGRAM. Subject to the terms and
conditions set forth herein, Licensor hereby grants to HP, its subsidiaries,
divisions and affiliates a non-exclusive, worldwide license to use,
reproduce, display, and distribute the Program in object code format and as
bundled with a HP Product. Such license shall include the right of HP to
sublicense distributors, resellers, and other third parties to achieve the
foregoing. This license shall only permit HP to use, reproduce, display and
distribute the Programs as an indivisible and inseparable whole, and
therefore, unless expressly authorized in this license or an applicable SOW,
HP is not authorized to use, reproduce, display or distribute only a part of
a Program. All HP Products will be licensed to end users pursuant to the HP
Software License Terms, the current form of which is attached hereto as
EXHIBIT B.
3.2 LICENSE TO THE DOCUMENTATION. Subject to the terms and
conditions set forth herein, Licensor hereby grants to HP, its subsidiaries,
divisions and affiliates a non-exclusive, worldwide license to use, reproduce,
display, translate, distribute and modify and prepare derivative works or
compilations of the Documentation and modifications and derivative works and
compilations based thereon for use with a Program. Such license shall include
the right of HP to sublicense distributors, resellers, and other third parties
to achieve the foregoing. The right to modify and prepare derivative works and
compilations is granted solely for the purposes of combining Documentation of
more than one program, condensing Documentation, and formatting and preparing
Documentation for user accessibility.
3.3 LICENSE TO PHOTOGRAPH (MARKETING MATERIALS). Subject to the
terms and conditions set forth herein, Licensor hereby grants to HP, its
subsidiaries, divisions and affiliates a non exclusive, worldwide license to
photograph Program screen displays and packaging, the Documentation and the
CD-ROM, if any, and to use, reproduce, display and modify such photographs and
modifications thereto and images therefrom solely in connection with HP's
marketing of the Program. Such license shall include the right of HP to
sublicense distributors, resellers, and other third parties to achieve the
foregoing. This license is subject to HP's compliance with Licensor's marketing
and software-packaging guidelines (as provided by Licensor) and Section 3.6
("Trademarks") of this Agreement.
3.4 RESTRICTIONS. HP shall not reverse engineer, disassemble,
or otherwise modify any Program without written authorization from Licensor.
3.5 LOCALIZED VERSIONS. The licenses granted hereunder with
respect to a Program and associated Documentation shall include all localized
versions of such Program listed a SOW or made available by Licensor on or after
the Effective Date.
3.6 TRADEMARKS. Neither party is granted any right or interest
to the trademarks, marks or trade names (collectively, "Marks") of the other
party. Neither party may use the other's Marks without the prior written consent
of the other party. Notwithstanding the foregoing, Licensor agrees that: (1) HP
may use Licensor's name and the name and/or trademark of a Program ("Licensor
Program Marks") in the course of marketing and distributing such Program in
accordance with the terms and conditions of this Agreement provided that such
use is in accordance with Licensor's trademark usage guidelines as modified from
time-to time and supplied to HP; (3) HP acknowledges that nothing in this
Agreement gives HP right, title, or interest in Licensor
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
Program Marks other than the right to use the Licensor Program Marks in
accordance with this Agreement; and (4) HP acknowledges that the use of
Licensor's Program Marks shall inure to the benefit of Licensor.
3.7 OWNERSHIP. Subject to the rights and licenses granted to HP
hereunder, Licensor retains all right, title and interest in the Programs,
Documentation, Gold Byte, and any Bug Fixes, and New Releases, including all
copyrights thereto. HP agrees that it will not remove any copyright notices,
trademarks or tradenames of Licensor from the Programs or Documentation.
3.8 COPYRIGHT NOTICES. Licensor and HP agree that mutually
acceptable copyright notices of Licensor shall be used for the Programs and any
localizations of the Programs.
4. PROGRAM MAINTENANCE AND SUPPORT
4.1 MAINTENANCE AND SUPPORT.
4.1.1 Licensor agrees to provide HP maintenance and
support for the Programs as set forth in a SOW. Licensor agrees to maintain such
number of qualified personnel as is necessary to provide such timely and
knowledgeable maintenance and support service.
4.1.2 Notwithstanding any termination of this
Agreement, Licensor agrees to maintain and support the Programs distributed
by HP for at least [*] months after a Program is made available to HP for
distribution hereunder. The version of a Program immediately preceding [*] or
New Release shall be supported and maintained by Licensor for [*] months
after the [*] or New Release is made available to HP for distribution
hereunder.
4.2 TECHNICAL ASSISTANCE AND TRAINING. Licensor agrees to
provide to HP the technical assistance and training to HP personnel as may be
reasonably requested for HP to use, copy and distribute the Program as
contemplated here, and as may be further described in a SOW.
4.3 NEW HP PRODUCTS. The parties intend that during the term
of this Agreement Licensor may design product changes and new product
releases which are compatible with future releases and revisions of the HP
Products (to the extent the HP Products are [*] of the HP Products),
including new or revised versions of the operating systems to the extent such
operating systems are [*]) provided that such new HP Products have the
minimum system requirements necessary to support the Program. Upon request by
HP for a change or enhancement to the Program pursuant to section 4.4 below
Licensor agrees to provide a [*] to such request within [*] days (unless the
parties mutually agree otherwise).
4.4 FUNCTIONALITY ENHANCEMENTS. HP may from time to time
request significant functionality enhancements to a Program. If Licensor, in its
sole and absolute discretion, agrees to develop any such enhancements, the
parties shall enter into a mutually agreeable written SOW setting forth the
terms and conditions of the development of such enhancements, which may provide
for additional payments by HP to Licensor. The fee for any such enhancements
shall be [*]. Prior to commencing work, Licensor will provide HP with a written
estimate of the total "not to exceed" fee
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
for the proposed enhancement and the final fee shall not exceed the estimate by
more than [*] unless mutually agreed to by HP and Licensor.
4.5 HP PROPERTY. HP may provide HP property to Licensor for
purposes related to this Agreement under the terms of an HP Equipment Loan
Agreement in the form attached as Exhibit D to this Agreement.
5. PAYMENT
5.1 ROYALTY. In consideration for the rights and licenses
granted to HP under this Agreement, HP agrees to pay Licensor a Per Copy Fee
royalty for each copy of a Program that HP distributes as bundled with an HP
Product, in the amount set forth in the applicable SOW. Such royalty shall
include the right to reproduce and distribute associated Documentation.
5.2 ROYALTY PAYMENT. Per Copy Fees will accrue upon
distribution of any copy of a Program bundled with an HP Product. All accrued
Per Copy Fees will be paid by HP to Licensor within [*] days after the end of
each HP fiscal quarter, which ends on the last day of each January, April, July
and October. Payments will be accompanied by a report stating the number of
units shipped with the Program distributed in the relevant quarter, and the
calculation of the royalty payment.
5.3 AUDIT. Upon fifteen (15) days prior written notice to HP,
Licensor may, at its own expense, appoint a nationally recognized independent
auditor, to whom HP has no reasonable objection, to audit and examine HP's
records of the royalty payments under Sections 5.2 of this Agreement, at HP's
offices during normal business hours, solely for the purpose of confirming the
accuracy of royalty payments hereunder. Such audit may be made no more often
than once every twelve calendar month period.
5.4 [*] WARRANTY. Licensor warrants that as of the Effective
Date, the [*] set forth in the applicable SOW, is [*] than the [*] of, and
for the same extent of [*] the Program, which is licensed to such [*].
Licensor agrees to [*] to HP the [*] it has [*], provided that the [*]
arrangements meets the qualifications above, commencing on the effective date
Licensor grants such [*] to such [*].
5.5 TAXES. Licensor shall be solely responsible for income
based taxes on amounts paid to Licensor by HP under this Agreement.
6. WARRANTY AND INDEMNIFICATION
6.1 GENERAL WARRANTY. (1) Licensor warrants that, it owns all
rights to, or has licensed all or a portion of, each Program and accompanying
Documentation, and that such interests are free of any and all restrictions,
settlements, judgments or adverse claims; and (2) Licensor warrants it has full
power and authority to grant HP the rights granted in this Agreement.
6.2 PROGRAM WARRANTY. Licensor warrants that each Program
referred to herein will operate in accordance with and substantially conform to
the Specifications, Documentation, manuals, and data sheets; and, promotional
literature, presentations, and any other written materials to the extend
actually relied upon by HP; concerning the Programs that are made publicly
available by Licensor or are provided by Licensor to HP.
6.3 YEAR 2000 COMPLIANCE WARRANTY. Licensor warrants that the
Program will be "Year 2000 Compliant". Year 2000 Compliant products will perform
without error, loss of data, or
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
loss of functionality on account of any inability to process, calculate, compare
or sequence date data accurately from, into and between the years 1999 and 2000
and between the twentieth century and the twenty-first century. In addition,
Year 2000 Compliant products will not cause any associated HP Products or any
systems in which they may be used to fail in any of the ways described above
provided such HP Products or systems will properly send and receive necessary
data, and in a format compatible, with the Program. This Year 2000 Compliance
warranty will remain in effect through January 31, 2001, notwithstanding any
other warranty period specified in this Agreement.
6.4 GENERAL INDEMNITY.
6.4.1 Licensor agrees to indemnify and hold HP harmless of
and from any and all third party loss, cost, claim, liability, suit, judgment or
expense, including reasonable attorneys' fees, arising out of any breach of its
warranties in this Section, provided that HP shall give Licensor prompt notice
of any such loss, cost, claim, liability, suit, judgment or expense, and shall
give Licensor the option to defend or settle such demands, claims or lawsuits,
and provided that HP shall reasonably cooperate with Licensor, at Licensor's
expense, in the defense of such demands, claims or lawsuits.
6.4.2 HP agrees to indemnify and hold Licensor harmless of
and from any and all third party loss, cost, claim, liability, suit, judgment or
expense, including reasonable attorneys' fees, arising out of any breach of its
warranties in this Section, provided that Licensor shall give HP prompt notice
of any such loss, cost, claim, liability, suit, judgment or expense, and shall
give HP the option to defend or settle such demands, claims or lawsuits, and
provided that Licensor shall reasonably cooperate with HP, at HP's expense, in
the defense of such demands, claims or lawsuits.
6.5 INFRINGEMENT INDEMNITY.
Notwithstanding any other provision hereof, this Section
6.5 shall govern the parties' indemnity rights in the event of third party
intellectual property infringement claims asserted against a party or its
customers and provides the exclusive remedy in the event of such claims.
(a) Insofar as any claim for infringement of any
third party's patent, copyright, trademark, trade name, other proprietary
right, or unauthorized trade secret use is brought against HP or its
customers, based solely on any Program or Documentation or any part thereof,
furnished by Licensor under this Agreement, Licensor will defend, or settle
at Licensor's option, any such claim. Licensor will have sole control of such
defense or settlement and Licensor will be relieved of the foregoing
obligations unless (1) Licensor is notified promptly in writing of such
claim, and (2) Licensor is given, by HP, authority, information and
reasonable assistance (at Licensor's expense) to handle the claim or the
defense of any such suit or proceeding. Licensor agrees to pay all damages
and costs awarded therein against HP and its customers arising out of any
such claims. Licensor shall not be responsible for any cost or expenses
incurred without Licensor's prior written consent. In case any Program or
Documentation or any part thereof in such suit is held to constitute an
infringement and its use is enjoined, Licensor shall, at its own expense and
at its option: (i) procure for HP and its customers the right to continue
use, or (ii) if applicable, replace the same with a non-infringing program
and documentation of equivalent function and performance, (iii) modify them
so they become non-infringing without detracting from function or
performance, or (iv) request that HP remove the Programs, whereupon Licensor
shall refund all royalties and other fees paid therefor by HP.
Notwithstanding the foregoing, Licensor shall have no responsibility for
claims arising from unauthorized modifications of a Program made by HP if
such claim would not have arisen but for such modifications.
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*]. A
complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
(b) Insofar as any claim for infringement of any third
party's patent, copyright, trademark, trade name, or proprietary right, or
unauthorized trade secret use is brought again Licensor or its customers based
solely on any HP Product (excluding any of Licensor's Programs or Documentation)
or any part thereof, HP will defend, or settle at HP's option, any such claim.
HP will have sole control of such defense or settlement and HP will be relieved
of the foregoing obligations unless (1) HP is notified promptly in writing of
such claim, and (2) HP is given, by Licensor, authority, information and
reasonable assistance (at HP's expense) to handle the claim or the defense of
any such suit or proceeding. HP agrees to pay all damages and costs awarded
therein against Licensor and its customers arising out of any such claim. HP
shall not be responsible for any cost or expenses incurred without HP's prior
written consent.
(c) Insofar as any claim for infringement of any
third party's patent, copyright, trademark, trade name, other proprietary
right, or unauthorized trade secret use is brought, other than third party
claims described in Section 6.5(a) or 6.5(b), above, including without
limitation any claim of infringement of third party intellectual property
rights arising from any combination of Licensor's Program or Documentation
with any HP Product, the parties shall meet and confer in an attempt to agree
on the appropriate allocation of responsibility for costs and awards or losses
arising from such third party claim. If the parties do not reach an agreement
within ninety (90) days of both parties' receipt of notice of such a claim,
or such other time as the parties may in writing agree, then the allocation
of liability for costs and expenses arising from third party claims described
in this Section 6.5(c) shall be determined by a court of competent
jurisdiction, applying the law of the State of California and each party
shall bear its proportionate share of such liability, if any, resulting from
such claim in accordance with California law and the determination of such
court.
6.6 ENTIRE LIABILITY FOR INFRINGEMENT. THIS SECTION 6 STATES
THE ENTIRE LIABILITY OF LICENSOR AND HP WITH RESPECT TO ANY CLAIM OF
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THE OBLIGATIONS SET FORTH IN THIS
SECTION 6 SHALL NOT BE LIMITED IN ANY WAY BY ANY OTHER PROVISIONS OF THIS
AGREEMENT, INCLUDING THE LIMITATION OF LIABILITY PROVISION IN SECTION 8 BELOW.
6.7 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
NEITHER LICENSOR NOR HP MAKES ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
REGARDING THE PROGRAM, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR
PURPOSE.
6.8 HP WARRANTIES. HP warrants that HP shall not use the
Programs in any way that violates this Agreement.
7. TERM AND TERMINATION
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
7.1 TERM. Unless otherwise terminated earlier under this
Section 7, this Agreement shall commence as of the Effective Date, and shall
continue until October 2, 2001. This Agreement will renew automatically for
additional one (1) year periods unless written notice is given by one party
to the other as to its intention not to renew this Agreement at least sixty
(60) days prior to the end of the initial or any subsequent term. The term of
each SOW will be specified in the SOW. If this Agreement is terminated or
expires prior to the end of the term of a SOW, this Agreement will remain in
effect only with respect to such SOW until such SOW is terminated or expires.
7.2 TERMINATION FOR BREACH. Either party may terminate this
Agreement, a SOW, or both, by written notice to the other party if the other
party breaches any material provision of this Agreement and such breach is not
cured within thirty (30) days after written notice thereof is received by the
breaching party. Any breach by either party of the Confidentiality provisions of
this Agreement shall be considered a breach that cannot be cured and may be the
basis for immediate termination of this Agreement by the other party.
7.3 EFFECT OF TERMINATION. Notwithstanding any termination
of this Agreement or a SOW, all licenses granted to end users prior to the
date of termination for use of the Program shall survive. In the event of
termination by Licensor, HP may continue to license and distribute Programs
that have been incorporated into the final software build for the HP Products
by the effective date of termination, as necessary to support and maintain
the Programs, and as necessary to distribute remanufactured systems that
originally contained the Program so long as HP continues to pay Licensor the
applicable Per Copy Fees hereunder. If this Agreement is terminated by HP due
to breach by Licensor, HP may continue to license and distribute Programs as
provided hereunder until the expiration of the initial term of this Agreement
or the term of the applicable SOW, whichever is longer, as long as HP
continues to pay Licensor the applicable Per Copy Fees hereunder. Upon
termination by either party, HP must return to Licensor all Complete Copies
and shall either return to Licensor, or destroy all copies of A Programs not
incorporated into the final software build for the HP Product prior to the
effective date of termination, except for a reasonable number of copies of
the Program which may be retained for support and archival purposes.
7.4 SURVIVAL. Notwithstanding any termination of this
Agreement, the following provisions of this Agreement shall survive: Sections 1,
4.1.2, 5, 6, 8, 9, and 10, and this Section 7.
8. LIMITED LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES ARISING FROM ANY CLAIM OR ACTION
HEREUNDER, BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY. EXCEPT WITH RESPECT
TO LICENSOR'S LIABILITY UNDER SECTION 6 ABOVE, IN NO EVENT SHALL EITHER PARTY
BE LIABLE TO THE OTHER FOR DAMAGES FOR ANY CAUSE WHATSOEVER IN AN AMOUNT IN
EXCESS OF THE AMOUNTS PAYABLE TO LICENSOR UNDER THIS AGREEMENT.
9. CONFIDENTIAL INFORMATION
9.1 THE PROGRAM. The Program in object code form and related
Documentation provided to HP hereunder are deemed non-confidential, and., HP is
not under any obligation to Licensor to restrict access to or use of such
Programs in object code form or related Documentation, provided HP complies with
the term of this Agreement.
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
9.2 CONFIDENTIAL INFORMATION. During the term of this
Agreement, either party may receive or have access to technical information, as
well as information about product plans and strategies, promotions, customers
and related non-technical business information which the disclosing party
considers to be confidential ("Confidential Information"). In the event such
information is disclosed, the parties shall first agree to disclose and receive
such information in confidence. If then disclosed, the information shall be
labeled [HP or Licensor] Confidential, or if not marked (e.g. orally disclosed)
but treated as confidential at the time of disclosure shall be designated as
confidential in a written memorandum or mail sent to recipient prior to or
within thirty days of disclosure, summarizing the confidential information
sufficiently for identification. Such Confidential Information shall be used by
only those employees of the receiving party who have a need to know such
information for purposes related to this Agreement. Notwithstanding any
provision to the contrary, all source code provided by Licensor or HP to the
other, and all business information with respect to any unpublished Licensor or
HP products, are deemed Confidential Information for the purposes of this
Section 9.
9.3 NONDISCLOSURE. The receiving party shall protect any
such Confidential Information of the disclosing party from unauthorized
disclosure to third parties with the same degree of care as the receiving
party uses for its own similar information for a period of [*] years from the
date of disclosure. The foregoing restriction shall not apply to any
information which (i) was in the public domain or publicly known at the time
it was communicated to the receiving party by the disclosing party; (ii)
entered the public domain or became publicly known after it was communicated
to the receiving party by the disclosing party through no fault of the
receiving party; (iii) was in the receiving party's possession free of any
obligation of confidence at the time it was communicated to the receiving
party by the disclosing party; or (vi) was developed by employees or agents
of the receiving party independently of and without reference to any
information communicated to the receiving party by the disclosing party. In
addition, Section 10 will not be construed to prohibit any disclosure that is
(a) necessary to establish the rights of either party under this Agreement or
(b) required by a valid court order or subpoena, provided in the latter case
that the party required to make such disclosure notifies the other party
(whose Confidential Information is to be disclosed) thereof promptly and in
writing and cooperates with the other party if the other party seeks to
contest or limit the scope of such disclosure.
10. OTHER PROVISIONS
10.1 PUBLICITY. Each party agrees not to publicize or
disclose the existence or terms of this Agreement to any third party without
the prior written consent of the other except as required by law. In
particular, no press releases shall be made without the mutual written
consent of each party, which consents shall not be unreasonably withheld.
10.2 RELATIONSHIP MANAGERS. Each party designates the person set
forth in EXHIBIT D as the primary contact of each party with respect to this
Agreement, which person may be redesignated a party by notice to the other.
10.3 INDEPENDENT CONTRACTORS. The relationship of HP and
Licensor under this Agreement is that of independent contractors, and neither
party is an employee, agent, partner or joint venturer of the other.
10.4 NOTICE. Unless otherwise stated, all notices required under
this Agreement shall be in writing and shall be considered given upon personal
delivery of the written notice or
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
within forty eight (48) hours after deposit in the U.S. Mail, certified or
registered, and appropriately addressed to the Account Manager as set forth in
EXHIBIT D hereto.
10.5 GOVERNING LAW. This Agreement is made under and shall be
construed in accordance with the laws of the State of California, without
reference to conflict of laws principles.
10.6 EXPORT CONTROL. Both parties agree to comply with all
applicable United States laws and regulations which may govern the export of
Program abroad, including the Export Administration Act of 1979, as amended, any
successor legislation, and the Export Administration Regulations issued by the
Department of Commerce.
10.7 SEVERABILITY. The terms of this Agreement shall be
applicable severally to each Program, if more than one, and any dispute
affecting either party's rights or obligations as to one or more Program(s)
shall not affect the rights granted hereunder as to any other Program. If any
provision of this Agreement is held to be invalid or unenforceable by a court of
competent jurisdiction, then the remaining provisions will nevertheless remain
in full force and effect. The parties agree to negotiate in good faith a
substitute, valid and enforceable provision which most nearly effects the
parties' intent in entering into this Agreement.
10.8 HEADINGS. The captions of Sections of this Agreement are
for reference only and are not to be construed in any way as terms.
10.9 ASSIGNMENT. Neither this Agreement nor any part hereof may
be assigned by either party without the other party's prior written consent, and
any attempted assignment is void. Any merger, reorganization, transfer of
substantially all assets of a party, or other change in control or ownership
will be considered an assignment for the purposes of this Agreement, except that
no such consent will be required for Licensor to assign this Agreement, or
certain SOWs thereunder, or both, as part of a divestiture of all or
substantially all of the assets of Licensor's Software Products Group into a
publicly held company as announced on June 8, 2000.
10.10 NO MINIMUM OBLIGATION. Nothing in this Agreement shall be
construed or interpreted as placing a "best efforts" standard upon HP with
respect to the use and distribution of the Program, or placing any minimum
obligation to pay Per Copy Fees.
10.11 NON-RESTRICTIVE_RELATIONSHIP. Nothing in this Agreement
shall be construed to preclude HP from independently developing, acquiring or
marketing computer software packages which may perform the same or similar
functions as those software packages provided by Licensor. Nothing in this
Agreement shall be construed to preclude either party from independently
developing, acquiring or marketing products which may perform the same or
similar functions as the HP products.
10.12 WAIVER. Neither party's failure to exercise any of its
rights hereunder shall constitute or be deemed a waiver or forfeiture of any
such rights.
10.13 FORCE MAJEURE. Nonperformance of either party will be
excused to the extent that performance is rendered impossible by strike, fire,
flood, governmental acts or orders or restrictions or other similar reason where
failure to perform is beyond the control and not caused by
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<PAGE>
Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
the negligence of the non-performing party, provided that the non-performing
party gives prompt notice of such conditions to the other party and makes all
reasonable efforts to perform. Non-performance resulting from earthquakes,
hurricanes and other similar storms, and other natural calamities shall be
deemed to be beyond the control and not caused by the negligence of a party
under this Section 10.13.
10.14 EXHIBITS. Each Exhibit referred to in this Agreement is
incorporated in full in this Agreement. This Master Software License Agreement
may have multiple Exhibits/SOWs in place; each Exhibit/SOW will be managed by
the HP entity entering into it. Each Exhibit is separate and as such may be
terminated or amended without any impact on the remaining Exhibits.
10.15 ENTIRE AGREEMENT. This document represents the entire
agreement between the parties as to the matters set forth and supersedes all
prior discussions or understandings between them, whether written or oral,
concerning the subject matter hereof `this Agreement may only be modified by a
writing signed by an authorized representative of each of Licensor and HP.
10.16 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original.
Agreed: Agreed:
HEWLETT-PACKARD COMPANY LICENSOR
By: /s/ Larry Wuerz By: /s/ Tom Shea
---------------------------- ------------------------------
Name: Larry Wuerz Name: Tom Shea
---------------------------- ------------------------------
Title: HPD MPG MGR Title: VP & GM
---------------------------- ------------------------------
Date: 12/19/2000 Date: 12/14/00
---------------------------- ------------------------------
Exhibits:
EXHIBIT A - Home Products Division Product ("SOW")
EXHIBIT B - HP Software License Terms
EXHIBIT C - Statement of Work ("SOW") Template
EXHIBIT D - Relationship Managers
EXHIBIT E - Equipment Loan Agreement
APPENDIX I TO EXHIBIT E - Equipment Schedule
APPENDIX II TO EXHIBIT E - HP Software License Terms
EXHIBIT F - Adaptec Privacy Statement
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<PAGE>
Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
EXHIBIT A
STATEMENT OF WORK #HPD-1
HP HOME PRODUCTS DIVISION
This Statement of Work is governed by the Master Software License Agreement (the
"Agreement"), number ADAP001, between Hewlett-Packard Company ("HP") and
Adaptec, Inc. ("Licensor") effective as of December 7, 1999, and is fully
incorporated therein. In the event of a conflict between the terms of the
Agreement and the provisions of this SOW, the SOW shall govern and control with
respect to the transactions contemplated by such SOW. All terms used in this
Statement of Work and not otherwise defined will have the same meaning as in the
Agreement.
1. PURPOSE OF THIS SOW:
This SOW sets forth the understanding of the objectives, deliverables,
timing, staffing and fees for the bundling of Licensor's Program (as
described below) on the HP Pavilion Desktop [*].
II. RESOURCES ASSIGNED TO THIS SOW
A. HP'S PROJECT MANAGER
HP's Project Manager will be the person authorized to act as the
primary point of contact for HP and who will be responsible for
HP's performance under this SOW.
HP'S PROJECT MANAGER. [*]
PHONE NUMBER OF PROJECT MANAGER: [*]
ADDRESS OF PROJECT MANAGER: 10500 RIDGEVIEW COURT
CUPERTINO, CA 95014
B. LICENSOR'S PROJECT MANAGER
Licensor's Project Manager will be the person authorized to act as
the primary point of contact for Contractor and will be
responsible for Contractor's performance under this SOW.
LICENSOR'S PROJECT MANAGER: [*]
PHONE NUMBER OF PROJECT MANAGER: [*]
ADDRESS OF PROJECT MANAGER: 461 SOUTH MILPITAS BLVD.
MILPITAS, CA 95035
C. HP'S ESCALATION MANAGER
HP's Escalation Manager will be the person authorized to
negotiate, in good faith, with Licensor's Escalation Manager to
properly resolve disputes as to the matters contained in this
Statement of Work.
HP'S ESCALATION MANAGER. [*]
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
PHONE NUMBER OF ESCALATION MANAGER: [*]
ADDRESS OF ESCALATION MANAGER: 10500 RIDGEVIEW COURT,
MS 49DUISM
CUPERTINO, CA 95014
D. LICENSOR'S ESCALATION MANAGER
Licensor's Escalation Manager will be the person authorized to
negotiate, in good faith, with HP's Escalation Manager to properly
resolve disputes as to the matters contained in this Statement of
Work.
LICENSOR'S ESCALATION MANAGER: [*]
PHONE NUMBER OF ESCALATION MANAGER: [*]
ADDRESS OF ESCALATION MANAGER: 461 SOUTH MILPITAS BLVD.
MILPITAS, CA 95035
III. PROGRAMS AND SERVICES TO BE DELIVERED BY LICENSOR UNDER THIS SOW
3.1 OBJECTIVES: The Licensor will provide the Program described below.
3.2 DELIVERABLES (LICENSOR'S "PROGRAM"):
3.2.1 PROGRAM NAME: Easy CD Creator Standard Edition version 3.5x
and its successor 4.x with DirectCD version 3.01
3.2.2 SPECIFICATIONS: Easy CD Creator Standard Edition with
DirectCD is a software solution for CD-Recording systems that runs
on: Windows 95, Windows 98, NT 4, Windows 2000 and Windows
Millennium. This product allows a user to make audio CDs, data
CDs, CD labels and jewel case inserts, and to drag and drop files
directly to CD using drive letter access. See attached technical
specification.
3.2.3 DOCUMENTATION: Quick Reference Guide, context sensitive
Help
3.2.4 TRADEMARK/TRADENAME/PRODUCT NAME AS THEY ARE TO APPEAR IN
PROGRAM DOCUMENTATION: Adaptec, the Adaptec logo, Easy CD Creator
and DirectCD are trademarks of Adaptec, Inc which may be
registered in some jurisdictions. All other trademarks are owned
by their respective owners.
3.2.5 FORM AND MEDIA FOR PROGRAM AND DOCUMENTATION
(A) PROGRAM FORM/MEDIA: The program will be provided on
CD.
(B) DOCUMENTATION FORM/MEDIA: The documentation will be
provided on CD as PDF files and/or Framemaker files and/or
HTML files, per HP's request.
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<PAGE>
Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
(C) CD FACE ART AND FILE: Adaptec will provide written
guidelines for HP to create CD Face Art. Adaptec does not
provide graphic images for face art.
3.2.6 LOCALIZED VERSIONS
3.2.6.1 REQUIRED: [*].
3.2.6.2 LOCALIZED VERSIONS CURRENTLY AVAILABLE: English,
French, Spanish, Dutch, Swedish, Chinese simplified,
Chinese traditional, Korean and Brazilian Portuguese.
3.2.7 SUPPORT AND MAINTENANCE:
3.2.7.1 SUPPORT TO END USERS:
(1) Free Support: Licensor's ASK On-Line system
[*]
(2) Additional Licensor Technical Support Resources:
[*]
3.2.7.2 TECHNICAL SUPPORT TO: Licensor agrees to provide
technical support to HP for all regions in which HP sells
the program. Licensor agrees to maintain such number of
qualified personnel as is necessary to provide timely and
knowledgeable technical support services.
3.2.7.3 TRAINING. Licensor will provide such training to HP
personnel as may be reasonably requested in order for HP to
use, copy, distribute and support the Program as
contemplated herein, and will provide periodic technical
support information and updated training per HP's
reasonable request.
3.2.7.4 LICENSOR SUPPORT:
(1) Telephone number for: [*]
(2) Hours of operation: 9 AM - 5PM (PST)
(3) Additional Licensor Technical Support Resources: N/A
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
3.2.8 BUNDLING REQUIREMENTS: The Program will be bundled with
[*] with [*] ("HP Product").
3.3 HP RESPONSIBILITIES:
- HP will work with Licensor on all phases of the software
build, software qualification and bug identification.
- HP will Provide all necessary information to inform
Licensor of any current system configuration that would
help in identifying any system configuration issues.
- HP will provide access to our R&D staff engineer, (during
standard business hours) to communicate any known issues
and work with Licensor to create a fix.
- Upon request HP will provide Licensor with the most current
Hardware available for support of the Program.
3.4 TIMING:
GOLD BYTES DELIVERY DATE:
SOFTWARE WAS QUALIFIED AND ACCEPTED FOR [*] AS VERSION 4.X ON: [*]
3.5 GOLD BYTE DELIVERY DATES FOR [*]:
SOFTWARE GOLD BYTE WAS QUALIFIED AND ACCEPTED AS VERSION 4.X ON:
[*]
IV. PAYMENT; EXPENSES; AND INVOICES
4.1 PAYMENT
4.1.1 PRICING: PER COPY FEES:
Licensor and HPD will work together to develop and
implement programs to generate increased revenue from
software upgrades. The pricing, for [*]:
- Easy CD Creator 4.X with DirectCD 3.x - [*].
- Easy CD Creator 4.X. with DirectCD 3.x - [*]
provided that in the event Easy CD Creator 5.LE
is not available by [*], Licensor agrees to
license the then shipping Program at the Easy CD
Creator 5.LE of [*].
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<PAGE>
Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
V. OTHER TERMS AND CONDITIONS THAT SHALL APPLY TO THIS SOW
5.1 TERM AND TERMINATION
This SOW will be effective commencing upon [*]. If all services
and Deliverables described herein are not completed by the end
date, HP may elect to extend this SOW by providing written notice
to Licensor prior to the initial ending date or any subsequent
ending date and upon Licensor's mutual agreement. The parties'
rights to terminate this SOW and any renewals are as set forth in
Section 7 of the Agreement.
VI. END USER DATA
6.1 Any and all identifying information regarding HP Pavilion Desktop
PC End Users (including but not limited to personal names,
addresses, telephone and social security numbers, or other
identifying information) collected by Adaptec through their Web
Site (the "HP End User Information") will be deemed to be
Confidential Information of HP and subject to Section 9
("Confidential Information) hereof. Adaptec will have the limited
and restricted right to use the HP End User Information solely in
connection with registration of and provision of the Services to
such end users and for future Services offered for marketing
purposes consistent with promotion defined herein. For the purpose
of this SOW, when a HP Pavilion Desktop PC End User elects to
register their information to take advantage of any further
Adaptec: products, services, or by electing to receive additional
information, such person becomes an Adaptec Customer. Any
information provided by such customer is subject solely to the
Adaptec policies attached here to as Exhibit "F". Adaptec hereby
agrees to indemnify and hold HP harmless of and from any and all
claims, suits, judgments, or proceedings arising out of any claim
that HP End User Information or Other End User Information has
been collected, distributed, or otherwise used by Adaptec in a
manner that violates the representations made to the customer in
Adaptec's privacy policy concerning such information ("Adaptec
Privacy Policy"). Such Adaptec: Privacy Policy is currently in the
form attached hereto as Exhibit F. Adaptec may amend the Adaptec:
Privacy Policy from time to time without notice to HP as long as
the substantive protections in the terms of any amended Adaptec
Privacy Policy are as protective of the information as the term of
the Adaptec Privacy Policy as referenced hereto.
IN WITNESS WHEREOF, the parties to the above referenced Agreement between HP and
Licensor have caused this Statement of Work #HPD-1 to be executed by their
authorized representatives.
HEWLETT-PACKARD COMPANY LICENSOR:
BY: /s/ Larry Wuerz BY: /s/ Tom Shea
------------------------------ -----------------------------
NAME: Larry Wuerz NAME: Tom Shea
------------------------------ -----------------------------
TITLE: HPD MPG MGR TITLE: VP & GM
------------------------------ -----------------------------
DATE: 12/19/2000 DATE: 12/14/00
------------------------------ -----------------------------
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
EXHIBIT B
ATTENTION: USE OF THE SOFTWARE IS SUBJECT TO THE SOFTWARE LICENSE TERMS SET
FORTH BELOW. USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE TERMS. IF YOU
DO NOT ACCEPT THESE TERMS, YOU MAY RETURN THE ENTIRE UNUSED PERSONAL COMPUTER
PRODUCT FOR A FULL REFUND.
SOFTWARE LICENSE TERMS
The following Terms govern your use of the Software.
LICENSE GRANT. Hewlett-Packard grants you a license to Use one copy of the
version of the Software preloaded on the hard drive of the Hewlett-Packard
computer and in the box containing the CD-ROMs bundled with the Hewlett-Packard
computer, on any one computer. "You" means the company, entity or individual
whose funds are used to pay the license fee. "Use" means storing, loading,
installing, executing or displaying the Software. You may not modify the
Software or disable any licensing or control features of the Software except as
an intended part of the Software's programming features.
OWNERSHIP. The Software is owned and copyrighted by Hewlett-Packard or its third
party suppliers. Your license confers no title or ownership in the Software and
should not be construed as a sale of any rights in the Software.
Hewlett-Packard's third party suppliers may protect their rights in the event of
any violation of these terms.
COPIES AND ADAPTATIONS. You may only make copies or adaptations of the Software
for archival purposes or when copying or adaptation is an essential step in the
authorized Use of the Software. You must reproduce all copyright notices in the
original Software on all authorized copies or adaptations. You may not copy the
Software onto any bulletin board or similar system.
NO DISASSEMBLY OR DECRYPTION. You may not disassemble, decompile or decrypt the
Software unless Hewlett-Packard's prior written consent is obtained. In some
jurisdictions, Hewlett-Packard's consent may not be required for disassembly or
decompilation. Upon request, you will provide Hewlett-Packard with reasonably
detailed information regarding any disassembly or decompilation.
TRANSFER. You may not rent or lease the Software, but you may transfer the
Software. Your license will automatically terminate upon any transfer of the
Software. Upon transfer, you must deliver the original and all complete, partial
or electronically stored copies of the Software and related documentation to the
transferee. The transferee must accept these Terms as a condition to the
transfer.
TERMINATION. Hewlett-Packard may terminate your license upon notice for failure
to comply with any of these Terms. Upon termination, you must immediately
destroy the Software, together with all copies, adaptations and merged portions
in any form.
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
EXPORT REQUIREMENTS. You may not export or re-export the Software or any copy or
adaptation in violation of any applicable laws or regulations.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and documentation have been
developed entirely at private expense and are provided as "Commercial Computer
Software" or "restricted computer software". Use, duplication or disclosure by
the U.S. Government or a U.S. Government subcontractor is subject to the
restrictions set forth in subparagraph (c) (1) (ii) of the Rights in Technical
Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in
subparagraph (c) (1) and (2) of the Commercial Computer Software - Restricted
Rights clauses at FAR 52.227-19, as applicable. The Contractor is
Hewlett-Packard Company, 3000 Hanover Street, Palo Alto, California 94304.
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
EXHIBIT C
STATEMENT OF WORK TEMPLATE
STATEMENT OF WORK ("SOW") #
This Statement of Work is governed by the Master Software License Agreement (the
"Agreement"), number ADAP001, between Hewlett-Packard Company ("HP") and
Adaptec, Inc. ("Licensor") effective as of April 3, 2000, and is fully
incorporated therein. In the event of a conflict between the terms of the
Agreement and the provisions of this SOW, the SOW shall govern and control with
respect to the transactions contemplated by such SOW. All terms used in this
Statement of Work and not otherwise defined will have the same meaning as in the
Agreement.
I. PURPOSE OF THIS SOW:
This SOW sets forth the parties' understanding of the objectives,
deliverables, timing, staffing and fees for [DESCRIBE SPECIFIC WORK]
described below with HP's [NAME OF HP PRODUCT AND SPECIFIC OTHER
IDENTIFIERS OF PRODUCT AS NECESSARY].
II. RESOURCES ASSIGNED TO THIS SOW
A. HP'S PROJECT MANAGER
HP's Project Manager will be the person authorized to act as the
primary point of contact for HP and who will be responsible for
HP's performance under this SOW.
HP'S PROJECT MANAGER:
PHONE NUMBER OF PROJECT MANAGER:
ADDRESS OF PROJECT MANAGER:
B. LICENSOR'S PROJECT MANAGER
Licensor's Project Manager will be the person authorized to act as
the primary point of contact for Contractor and will be
responsible for Contractor's performance under this SOW.
LICENSOR'S PROJECT MANAGER:
PHONE NUMBER OF PROJECT MANAGER:
ADDRESS OF PROJECT MANAGER:
C. HP'S ESCALATION MANAGER (DELETE ITEM IF NOT NEEDED)
HP's Escalation Manager will be the person authorized to
negotiate, in good faith, with Licensor's Escalation Manager to
properly resolve disputes as to the matters contained in this
Statement of Work.
HP'S ESCALATION MANAGER:
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
PHONE NUMBER OF ESCALATION MANAGER:
ADDRESS OF ESCALATION MANAGER:
D. LICENSOR'S ESCALATION MANAGER (DELETE ITEM IF NOT NEEDED)
Licensor's Escalation Manager will be the person authorized to
negotiate, in good faith, with HP's Escalation Manager to properly
resolve disputes as to the matters contained in this Statement of
Work.
LICENSOR'S ESCALATION MANAGER:
PHONE NUMBER OF ESCALATION MANAGER:
ADDRESS OF ESCALATION MANAGER:
E. EMPLOYEES LICENSOR ASSIGNS TO COMPLETE SERVICES AND DELIVERABLES
UNDER THIS SOW
Employees of Licensor assigned to provide services and
deliverable's under this SOW are as follows:
<TABLE>
-------------------------------------------------------------------------------------
<S> <C>
Resource Role
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
</TABLE>
III. PROGRAMS AND SERVICES TO BE DELIVERED BY LICENSOR UNDER THIS SOW
3.1 OBJECTIVES:
(STATE HIGH-LEVEL PROJECT OBJECTIVES.)
The Licensor will support these efforts as presented below.
3.2 DELIVERABLES:
(CLEARLY DEFINE DELIVERABLES AND PROVIDE EXCEPTION CRITERIA FOR EACH
DELIVERABLE. THIS AREA OF THE SOW WILL PROVIDE THE MOST PROTECTION WHEN
YOU PROVIDE A CLEAR MAP OF CRITICAL PROJECT REQUIREMENTS AND MAP THEM TO
PROJECT MILESTONES. BE SURE TO INCLUDE AT A MINIMUM THE PROGRAM NAME,
SPECIFICATIONS (THESE SHOULD BE DETAILED TECHNICAL SPECIFICATIONS),
DESCRIPTION OF DOCUMENTATION, FORM AND MEDIA FOR DELIVERY OF PROGRAM
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
AND DOCUMENTATION, LOCALIZED VERSIONS REQUIRED, SUPPORT AND MAINTENANCE,
TRAINING, BUNDLING REQUIREMENTS).
3.3 HP RESPONSIBILITIES:
3.4 TIMING:
(STATE THE PERIOD OF TIME, OR ESTIMATE OF THE TIMELINE THAT THE
PROJECT/DELIVERABLES WILL REQUIRE FOR COMPLETION, DELIVERY AND
ACCEPTANCE. USE THIS SECTION TO STATE THE DEADLINES FOR THE PROJECT.)
IV. PAYMENT; EXPENSES; AND INVOICES
4.1 PAYMENT
(THIS SECTION OF THE SOW IS DESIGNED TO PROVIDE A BREAKDOWN OF
PROJECT COSTS. PROJECT NOT TO EXCEED FIGURE SHOULD BE BROKEN DOWN
AND MAPPED TO A SPECIFIC DELIVERABLE. NOTE: HP'S CORPORATE
GUIDELINES FOR PAYMENT TERMS ARE [*], THIS SHOULD ONLY BE
REDUCED WHEN THERE IS A BENEFIT TO HP TO DO SO.)
Payment shall be made subject to the terms and conditions of
the Agreement.
4.2 EXPENSES
(THIS SECTION OF THE SOW ALLOWS YOU TO DEFINE ANY ADDITIONAL
PROJECT EXPENSES, I.E. IS THERE A NEED TO PROCURE HARDWARE UP
FRONT? WILL THERE BE ANY TRAVEL REQUIRED DURING THE ENGAGEMENT? IF
SO, HP POLICY IS TO PAY FOR COACH AIRFARE, AND ALL TRAVEL SHOULD
BE PRE-APPROVED.)
Expenses shall be paid subject to the terms and conditions of the
Agreement.
4.3 INVOICES
(ALL CHECKS ARE PROCESSED FROM THE FSC IN COLORADO SPRINGS. IF
YOU HAVE ALREADY RECEIVED ANY INVOICES FOR WORK PERFORMED
BEFORE THIS AGREEMENT IS IN PLACE YOUR SHOULD DO A EDV CONTACT
THE ACCOUNTING SERVICE CENTER FOR INFORMATION ON THIS PROCESS.)
V. OTHER TERMS AND CONDITIONS THAT SHALL APPLY TO THIS SOW
5.1 TERM AND TERMINATION
This SOW will be effective commencing upon INSERT START DATE and
ending INSERT END DATE. If all services and Deliverables described
herein are not completed by the end date, HP may elect to extend
this SOW by providing written notice to Licensor prior to the
initial ending date or any subsequent ending dates. The parties'
rights to terminate this SOW and any renewals are as set forth in
Section 7 of the Agreement.
6.1 TERMS RELATING TO NETWORK OR INTERNET CONNECTIVITY PROVIDED
THROUGH THE PROGRAM.
[ ]
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
IN WITNESS WHEREOF, the parties to the above referenced Agreement have caused
this Statement of Work [insert #j to be executed by their authorized
representatives.
HEWLETT-PACKARD LICENSOR:
COMPANY
By:___________________________________ By:________________________________
Name:_________________________________ Name:______________________________
Title:________________________________ Title:_____________________________
Date:_________________________________ Date:______________________________
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
EXHIBIT D
RELATIONSHIP/ACCOUNT MANAGERS
HP:
[*]
[*]
[*]
Hewlett-Packard Company
10500 Ridgeview Court, M/S 49DU-SM
Cupertino, CA 95010-4010
Tel: [*]
Fax: [*]
LICENSOR:
[*]
[*]
[*]
Adaptec, Inc.
461 South Milpitas Blvd.
Milpitas, CA 95035
Tel: [*]
Fax: [*]
Royalties Pay To: Revenue Accounting
Pay to Name: Adaptec Inc.
Address: 461 South Milpitas Blvd.
Milpitas, CA 95035
Telephone: (408) 957-6839
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
EXHIBIT E
EQUIPMENT LOAN AGREEMENT
THIS EQUIPMENT LOAN AGREEMENT, NO.___________ (the "Agreement") is entered into
between HEWLETT-PACKARD COMPANY, a Delaware corporation ("HP"), and ADAPTEC
INC., a Delaware company located at 691 South Milpitas Boulevard, Milpitas, CA
95035 ("Recipient"). This Agreement is effective as of August 1, 1999 (the
"Effective Date").
1. LOAN OF EQUIPMENT. HP hereby loans to Recipient, for the applicable Term
defined below, the HP-owned equipment (collectively, "HP Equipment"),
which may consist of hardware, software and documentation described in
the HP Equipment Schedule attached as APPENDIX I TO THIS EXHIBIT E. HP
may, from time to time, add, upgrade, or remove HP Equipment from
Recipient's site during the Term. All HP Equipment received by Recipient
during the Term will be described in an amended HP Equipment Schedule
signed by Recipient and appended to this Equipment Loan Agreement.
Recipient agrees, by its receipt of HP Equipment, that all HP Equipment
is subject to the provisions of this Agreement.
2. TERM. This Agreement will begin as of the Effective Date and run for a
term of 24 months (the "Term"), unless earlier terminated by HP or
Recipient upon thirty (30) days written notice to the other. HP may in
writing extend the Term, or establish a separate Term with respect to
particular items of HP Equipment.
3. USE. Recipient may use the HP Equipment solely for the purpose of
developing and testing the Programs (as such term is defined in the
Master Software License Agreement effective as of between HP and
Adaptec). Recipient may not move any HP Equipment from the location
specified in the HP Equipment Schedule without the prior written consent
of HP. Recipient's right to use the HP Equipment is non-transferable.
4. SOFTWARE AND DOCUMENTATION. All software provided with the HP Equipment
is hereby licensed to Recipient under HP's Software License Terms
attached as APPENDIX H TO THIS EXHIBIT E. If Recipient requires a
license to use any software other than as stated in the Software License
Terms, that license must be specified in the HP Equipment Schedule. Any
documentation listed in the HP Equipment Schedule is licensed to
Recipient for its use solely for the purposes stated in Section 3 above.
If Recipient wishes to make copies of any documentation, it must first
obtain HP's prior written consent.
5. OWNERSHIP. HP retains all right, title and ownership to the HP Equipment,
unless any such HP Equipment is purchased by Recipient. Recipient hereby
nominates and appoints HP as its attorney-in-fact for the sole purpose of
executing and filing, on Recipient's behalf, UCC-1 financing statements
(and any appropriate amendments thereto) or a suitable substitute
document (including this Agreement) under the provisions of the Uniform
Commercial Code for the HP Equipment loaned to Recipient hereunder. If
requested by HP, Recipient will affix any label or marking supplied by HP
evidencing HP's ownership of the HP Equipment. HP may, from time to time,
inspect the HP Equipment. Recipient may not sell, transfer, assign,
pledge, or in any way encumber or convey the HP Equipment or any portion
or component of such equipment.
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
6. WARRANTY DISCLAIMER. ALL HP EQUIPMENT IS PROVIDED "AS IS", WITHOUT
WARRANTY OF ANY KIND, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. Recipient understands that some newly manufactured HP
Equipment may contain remanufactured parts equivalent to new in
performance.
7. INDEMNIFICATION. Recipient hereby agrees to defend, indemnify and hold HP
harmless from any claims or suits against HP arising from Recipient's use
of the HP Equipment, including use by its employees, agents or
subcontractor. Recipient will pay all costs, damages, losses and expenses
(including reasonable attorneys' fees) incurred by HP and will pay any
award with respect to any such claim or agreed to in any settlement.
8. MAINTENANCE. During the Term, Recipient will maintain all HP Equipment in
good operating order and condition. All maintenance must be provided by
personnel authorized by HP. HP will provide standard installation,
support and maintenance for the HP Equipment at HP's standard rates to
Recipient during the Term; however, all maintenance costs and expenses
due to Recipient's negligence will be borne by Recipient. Recipient will
be responsible for providing HP personnel ready and safe access to the HP
Equipment for such maintenance and support.
9. RISK OF LOSS. Recipient will bear all risk of loss with respect to the HP
Equipment from receipt until such HP Equipment is returned to HP. All HP
Equipment returned to HP must include the same components as received by
Recipient, and must be in good operating order and condition. Charges may
be imposed by HP if Recipient fails to return the HP Equipment in such
condition or within the return timeframe set forth herein.
10. SHIPPING COSTS. Unless otherwise agreed in writing by HP, Recipient will
be responsible for and pay all delivery, freight and rigging charges, all
taxes and duties, and all other shipping costs and expenses with respect
to the delivery or return of any HP Equipment hereunder.
11. LIMITATION OF LIABILITY. HP WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT,
TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF THIS EQUIPMENT LOAN
AGREEMENT OR RECIPIENT'S USE OF THE HP EQUIPMENT.
12. TERMINATION. Upon expiration or earlier termination of the Term,
Recipient will return to HP all HP Equipment within 10 business days. HP
may permit Recipient to purchase certain items of the HP Equipment upon
termination under the purchase terms set forth below. In the event that
Recipient is permitted to purchase any of the HP Equipment and fails to
return that Equipment to HP upon expiration of the Term within such
10-day period, Recipient will be deemed to have elected to purchase the
HP Equipment, and HP will invoice Recipient accordingly.
13. PURCHASE OPTION. If HP permits Recipient to purchase any of the HP
Equipment, Recipient may elect to purchase those items of the HP
Equipment under HP's then current standard terms and conditions, provided
that such HP Equipment may not be purchased solely for resale. Upon
purchase, such HP Equipment will be provided with HP's then current
standard warranty provisions for used equipment. The purchase price for
HP Equipment purchased under this Section will be a price mutually agreed
upon by the parties. No promotional or purchase discounts will apply.
Such purchase will not qualify for any stock rotation or price protection
under any other agreement which Recipient may have with HP.
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
14. GENERAL PROVISIONS.
(a) NOTICES. All notices to be given under this Agreement must be in
writing and addressed to the location specified in the Master
Agreement or as designated in the opening paragraph of this
Agreement if there is no Master Agreement. Notices are validly
given upon the earlier of confirmed receipt by the receiving party
or three days after dispatch by courier or certified mail, postage
prepaid, properly addressed to the receiving party. Notices may
also be delivered by telefax and will be validly given upon oral
or written confirmation of receipt. Either party may change its
address for purposes of notice by giving notice to the other party
in accordance with these provisions.
(b) NO ASSIGNMENT. Neither this Agreement nor any right, privilege,
license or obligation set forth herein may be assigned,
transferred or shared by Recipient without HP's prior written
consent, and any such attempted assignment or transfer is void.
Any merger, consolidation, reorganization, transfer of
substantially all assets of Recipient or other change in control
or ownership of Recipient will be considered an assignment for the
purposes of this Agreement.
(c) ENTIRE AGREEMENT. This Agreement and the attached Exhibits
comprise the entire understanding between the parties with respect
to its subject matter and supersede any previous communications,
representations, or agreements, whether oral or written. No
modification of this Agreement will be binding on either party
unless in writing and signed by an authorized representative of
each party.
(d) GOVERNING LAW. This Agreement will be governed in all respects by
the laws of California without reference to any choice of laws
provisions, as though this Agreement were entered into by
residents of that State to be wholly performed within that State.
The parties hereby waive any application of the United Nations
Convention on Contracts for the International Sale of Goods (as
promulgated in 1980 and any successor or subsequent conventions)
with respect to the performance or interpretation of this
Agreement.
APPROVED AND AGREED:
RECIPIENT: ADAPTEC, INC. HEWLETT-PACKARD COMPANY
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
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Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
APPENDIX I TO
EXHIBIT E (EQUIPMENT LOAN AGREEMENT)
(insert) EQUIPMENT SCHEDULE
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<PAGE>
Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
APPENDIX II TO
EXHIBIT E (EQUIPMENT LOAN AGREEMENT)
HP SOFTWARE LICENSE TERMS
ATTENTION: USE OF THE SOFTWARE IS SUBJECT TO THE HP SOFTWARE LICENSE TERMS SET
FORTH BELOW. USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE LICENSE
TERMS. IF YOU DO NOT ACCEPT THESE LICENSE TERMS, YOU MAY RETURN THE SOFTWARE FOR
A FULL REFUND. IF THE SOFTWARE IS BUNDLED WITH ANOTHER PRODUCT, YOU MAY RETURN
THE ENTIRE UNUSED PRODUCT FOR A FULL REFUND.
HP SOFTWARE LICENSE TERMS
The following License Terms govern your use of the accompanying Software unless
you have a separate written agreement with HP.
LICENSE GRANT. HP grants you a license to Use one copy of the Software. "Use"
means storing, loading, installing, executing or displaying the Software. You
may not modify the Software or disable any licensing or control features of the
Software. If the Software is licensed for "concurrent use", you may not allow
more than the maximum number of authorized users to Use the Software
concurrently.
OWNERSHIP. The Software is owned and copyrighted by HP or its third party
suppliers. Your license confers no title or ownership and is not a sale of any
rights in the Software, its documentation or the media on which they are
recorded or printed. Third party suppliers may protect their rights in the
Software in the event of any infringement.
COPIES AND ADAPTATIONS. You may only make copies or adaptations of the Software
for archival purposes or when copying or adaptation is an essential step in the
authorized Use of the Software on a backup product, provided that copies and
adaptations are used in no other manner and provided further that Use on the
backup product is discontinued when the original or replacement product becomes
operable. You must reproduce all copyright notices in the original Software on
all copies or adaptations. You may not copy the Software onto any public or
distributed network.
NO DISASSEMBLY OR DECRYPTION. You may not disassemble or decompile the Software
without HP's prior written consent. Where you have other rights under statute,
you will provide HP with reasonably detailed information regarding any intended
disassembly or decompilation. You may not decrypt the Software unless necessary
for the legitimate use of the Software.
TRANSFER. Your license will automatically terminate upon any transfer of the
Software. Upon transfer, you must deliver the Software, including any copies and
related documentation, to the transferee. The transferee must accept these
License Terms as a condition to the transfer.
TERMINATION. HP may terminate your license upon notice for failure to comply
with any of these License Terms. Upon termination, you must immediately destroy
the Software, together with all copies, adaptations and merged portions in any
form.
EXPORT REQUIREMENTS. You may not export or re-export the Software or any copy or
adaptation in violation of any applicable laws or regulations.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and any accompanying
documentation have been developed entirely at private expense. They are
delivered and licensed as "commercial computer software" as defined in DFARS
252.227-7013 (Oct 1988), DFARS 252.211-7015 (May 1991) or DFARS 252.227-7014
(Jun 1995), as a "commercial item" as defined in FAR 2.101(a), or as "Restricted
computer software" as defined in FAR 52.227-19 (Jun 1987)(or any equivalent
agency regulation or contract clause), whichever is applicable. You have only
those rights provided for such Software and any accompanying documentation by
the applicable FAR or DFARS clause or the HP standard software agreement for the
product involved.
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<PAGE>
Confidential treatment has been requested with respect to the omitted
portions of this exhibit. The copy filed herewith omits the information
subject to the confidentiality request. Omissions are designated as [*].
A complete version of this exhibit has been filed separately with the
Securities and Exchange Commission.
EXHIBIT F
ADAPTEC'S PRIVACY STATEMENT
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