<PAGE>
EXHIBIT 10.10
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS
EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY A
TRIPLE ASTERISK
(***). THE CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH
THE
COMMISSION.]
HELLOSOFT TECHNOLOGY LICENSE AGREEMENT
--------------------------------------
FOR RIM SEMICONDUCTOR
---------------------
This License Agreement (the "Agreement") is made and entered into
as of
February 3, 2006 (the "Effective Date") between HelloSoft, Inc., a
Delaware
corporation, having a principal place of business at 2099 Gateway
Place, Suite
200, San Jose, California 95110 ("HelloSoft"), and Rim
Semiconductor, a Delaware
corporation having a principal place of business at 305 NE 102nd
Avenue, Suite
105, Portland, OR 97220 ("Licensee").
Whereas HelloSoft is in the business of developing, designing,
licensing and distributing software technology products;
Whereas Licensee wishes to obtain certain license rights from
HelloSoft
to design, manufacture and sell chips that contain HelloSoft object
code.
NOW
THEREFORE, in consideration of the parties' mutual covenants as
set
forth below, HelloSoft and Licensee agree as follows:
1.
DEFINITIONS
1.1. "AFFILIATES" means a corporation or any other legal
entity,
including
subsidiaries or related companies, the majority of
whose shares or other securities entitled to vote for
election of directors (or managing authority) is now or
hereafter controlled by Licensee either directly or
indirectly.
1.2. "CONFIDENTIAL INFORMATION" means and the terms and
conditions of this Agreement, and any information, technical
data, or know-how related to any aspect of either party's
business and disclosed by such party (the "disclosing
party") to the other party (the "receiving party")
including, but not limited to, technologies, research,
products, proposals, software, services, development,
inventions, processes, designs, drawings, engineering,
marketing, customer lists and finances, and which is either
marked "confidential" or "proprietary" or, if disclosed
orally or by visual inspection, is designated as
confidential or proprietary at the time of disclosure and
confirmed in a writing so marked within twenty (20) days
following disclosure.. Confidential Information does not
include any such information, technical data, or know-how
which (i) is or becomes publicly available without the
breach of this Agreement by the y receiving party; (ii) is
released by written consent of the disclosing party for
disclosure by the receiving party; (iii) is known by the
receiving party prior to the disclosure by the disclosing
party; (iv) is rightfully received by the receiving party
from a third party who has the legal right to disclose it,
without an obligation to keep such information confidential;
or (v) is independently developed by the receiving party's
employees or the employees of a party's Affiliate not having
access to such information.
1.3. "INTELLECTUAL PROPERTY" means patent rights (including
patent applications and disclosures), copyrights, trade
secrets, know-how and any other intellectual property rights
recognized in any country or jurisdiction of the world, but
does not mean trademark, trade names, logos, or service
marks.
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1.4. "LICENSED TECHNOLOGY" means the HelloSoft proprietary
software and related documentation described in Exhibit A of
this Agreement.
1.5. "LICENSED PRODUCT" means a product of Licensee or an
Affiliate of Licensee, as described in Exhibit E of this
Agreement, containing the Licensed Technology.
1.6. "DELIVERABLES" means the items to be delivered to Licensee
by HelloSoft, as set forth in Exhibit B of this Agreement.
1.7 "USE" means the
use by Licensee of the Licensed Technology
to make a unique version of a Licensed Product with respect
to either the chip or the operating system. The number of
USES shall mean the number of such versions that are made by
or for Licensee.
2. GRANT OF
LICENSE
2.1. LICENSE TO USE LICENSED TECHNOLOGY Subject to the terms
and
conditions of this Agreement and payment to Hellosoft as per
Exhibit C, HelloSoft hereby grants to Licensee, and Licensee
accepts, a worldwide, non sub licensable, nonexclusive,
nontransferable, non-assignable (except as set forth in
ss.11.6 of this Agreement) license to demonstrate, display,
develop, make, have made, sell and lease a Licensed Product
containing the Licensed Technology in object code form
("Development and Manufacturing Right") for telephony
wireline applications.
2.2. DOCUMENTATION HelloSoft will provide to Licensee the
documentation set forth in Exhibit B hereto relating to the
Licensed Technology, in electronic format. HelloSoft hereby
grants to Licensee a nonexclusive, nontransferable,
worldwide license to copy, modify, have modified, and
distribute internally and to its Affiliates, in whole or in
part, the documentation only in connection with the
development, manufacture and sale of the Licensed Product.
2.3. LICENSEE MATERIALS. Licensee will provide to Hellosoft the
material
as set forth in Exhibit F for HelloSoft's use in
delivering to Licensee the Deliverables as per Exhibit B
(the "Licensee Materials"). Licensee grants to HelloSoft a
royalty-free, non-exclusive, revocable license to use,
reproduce and modify the Licensee Materials solely for the
purpose of performing its development and delivery
obligations to Licensee hereunder. The Licensee Materials
are and shall remain the sole and exclusive property of
Licensee. No other rights or licenses to use such Licensee
Materials or any intellectual property of Licensee are
granted
hereunder.
3. PAYMENTS AND
DELIVERY
3.1. LICENSE FEE AND ROYALTIES: In consideration of the
licenses
granted to Licensee and the Deliverables provided to
Licensee hereunder, Licensee will pay HelloSoft the license
fee, non-recurring engineering charges ("NRE") and royalties
as set forth in Exhibit C. HelloSoft will deliver to
Licensee, in electronic media, the Deliverables set forth in
Exhibit B. Royalties shall be payable in accordance with
Section 4.
3.2. TAXES Licensee will be responsible for the payment of all
export, excise, sales, use, property and other taxes based
upon the transactions under this Agreement or the fees paid
hereunder, other than taxes imposed upon or measured by
HelloSoft's net income.
4. REPORTS AND
AUDITS
4.1 REPORTS Royalty
payments will accrue during the Licensee
fiscal quarters in which the Licensed Products are shipped.
On or before the thirtieth (30th) day following the close of
each Licensee fiscal quarter Licensee will deliver to
2
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HelloSoft a royalty report which states: (a) the number of
all units of the Licensed Product for which royalties
accrued during such fiscal quarter by product type; and (b)
the total amount of the royalties payable to HelloSoft. The
report shall be accompanied by the payment of the royalties
accrued during the quarter.
4.2 AUDIT For a period
of three (3) years after each payment of
royalties, Licensee will maintain such accurate books and
records relating to Licensee's performance under this
Agreement as will be sufficient to confirm Licensee's proper
payment of such royalties due under this Agreement and
compliance with Sections 2.1 through 2.2. Licensee will be
responsible for reporting and payment to HelloSoft for all
Licensed Product, by product type, shipped by it or any of
its Affiliates, or on their behalf. Licensee will permit a
nationally known, independent accounting firm reasonably
acceptable to Licensee, under a confidentiality agreement
with Licensee, to audit such books and records as may
reasonably be required to verify proper payment of royalties
due under this Agreement and compliance with Sections 2.1
through 2.2, at such times as HelloSoft may reasonably
request, upon reasonable written notice. All such records of
Licensee will be considered Licensee's Confidential
Information. The accounting firm shall provide to HelloSoft
only such information as is necessary to calculate the
amount of
royalties due hereunder and verify compliance with
Sections 2.1 through 2.2, and shall provide Licensee with a
copy of any report or written document provided to HelloSoft
in connection with such audit. Licensee agrees to provide,
and agrees to cause its Affiliates to provide, reasonable
assistance, without charge, to the independent accounting
firm in conducting the audit. HelloSoft will pay the cost of
audits unless any audit reveals that Licensee has underpaid
royalties by more than seven and one-half percent (7.5%) of
the royalties owed, in which case Licensee will bear all
expenses reasonably incurred by HelloSoft in connection with
the audit. Audits will not unreasonably interfere with
Licensee's business activities. Unless an audit reveals an
underpayment of more than seven and one-half percent (7.5%)
of the royalties owed, Licensee and its Affiliates will not
be required to submit to any audit more than once during any
twelve (12) month period.
5. MAINTENANCE
AND SUPPORT
5.1. MAINTENANCE AND SUPPORT HelloSoft will provide annual
maintenance and support per the terms shown in Exhibit D.
6. OWNERSHIP
RIGHTS
6.1.
OWNERSHIP HelloSoft will retain all ownership, right, title,
and interest (including, without limitation, all copyrights,
patents and other intellectual property rights) in and to
the Licensed Technology and the Deliverables. Licensee
and/or its Affiliates will have and retain all ownership,
right, title and interest (including, without limitation,
all copyrights, patents and other intellectual property
rights) in and to the Licensed Product, subject to
HelloSoft's underlying interest in the Licensed Technology.
6.2. PROPRIETARY NOTICES All copies of the Deliverables made by
Licensee will contain HelloSoft's proprietary notices as
established by guidelines promulgated from time to time by
HelloSoft, and Licensee will not remove any copyright or
other proprietary notices contained in the Hellosoft
Deliverables and/or Licensed Technology.
6.3. TRADEMARKS Except as provided in this Agreement, Licensee
may not use HelloSoft's name, logo, or trademarks without
HelloSoft's prior written consent, which shall not be
unreasonably withheld.
6.4. RIGHT TO LICENSE Licensee hereby expressly acknowledges
and
affirms Hellosoft's assertion of a right to license the
Licensed Technology. Accordingly, Licensee will not at any
time, and Licensee will ensure that its Affiliates will not
at any time, directly or indirectly, oppose the grant of,
dispute the validity of or cooperate in any suit or
proceeding which challenges or disputes any proprietary
rights of HelloSoft in the Licensed Technology or HelloSoft
in the
licensing of the Deliverables, or any portion
thereof. The foregoing shall not be construed as limiting
Licensee's right to indemnification under Section 8.
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7.
REPRESENTATIONS AND WARRANTIES
7.1. HELLOSOFT REPRESENTATIONS HelloSoft represents and
warrants
to Licensee only that (a) it possesses the right and
capacity to enter into this Agreement; and (b) the Hellosoft
Deliverables will operate in accordance with the
specification as described in Exhibit B.
7.2. LICENSEE REPRESENTATIONS Licensee represents and warrants
that: (a) it possesses the right and capacity to enter into
this Agreement; and (b) it will comply with the guidelines
of Hellosoft as per ss.6.2 or as reasonably modified by
Hellosoft from time to time.
7.3. DISCLAIMER EXCEPT AS PROVIDED IN ss.7.1 HELLOSOFT MAKES NO
WARRANTY OF ANY KIND WITH REGARD TO THE LICENSED TECNOLOGY,
AND THE DELIVERABLES. HELLOSOFT EXPRESSLY DISCLAIMS ANY
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WHETHER ARISING IN LAW, CUSTOM, CONDUCT, OR
OTHERWISE.
8.
INDEMNIFICATION
AND LIMITATION OF LIABILITY
8.1. HELLOSOFT INDEMNIFICATION HelloSoft agrees to defend or
settle at HelloSoft's own expense and under HelloSoft's sole
control any claim, suit or proceeding brought by a third
party against Licensee or an Affiliate of Licensee to the
extent that such claim, suit or proceeding is based upon any
claim of intellectual property infringement with respect to
Licensed Technology, subject to the limitations herein.
HelloSoft will be relieved of the foregoing obligations
unless Licensee (i) notifies HelloSoft promptly in writing
of such claim, suit or proceeding, and (ii) gives HelloSoft
information and assistance with respect to any such claim,
suit or proceeding. HelloSoft will not enter into a
settlement agreement without Licensee's prior written
consent, which consent shall not be unreasonably withheld.
If the Licensed Technology, or any part thereof, is finally
adjudicated to be, or in HelloSoft's opinion may become, the
subject of any claim, suit or proceeding for infringement of
any patent, copyright, trade secret, or other intellectual
property rights of a third party, or if the distribution or
use of the Licensed Product, or any part thereof, is
enjoined, then HelloSoft
