MASTER TECHNOLOGY LICENSE
AGREEMENT
FOR MIPS
CORES
THIS MASTER TECHNOLOGY LICENSE AGREEMENT FOR
MIPS CORES including Exhibits hereto (the "
Agreement " or " Master Agreement
") is made to be effective as of January 9, 2001 (the "
Effective Date ") by and between MIPS Technologies
International AG, a Swiss corporation, with its principal place of
business at Pestalozzistrasse 2, 8200 Schaffhausen, Switzerland, ("
MIPS ") and Wintegra Ltd., an Israeli corporation,
with its principal place of business at Taya Center 9, Hata asia
St., Ra anana Industrial Park 43654 ISRAEL, P. O. B. 3048 ("
Licensee ").
MIPS designs, develops and licenses intellectual
property based on a Reduced Instruction Set Computer ("
RISC ") technology known as the "MIPS
Architecture," including certain processor core designs known as
the "MIPS Cores" Licensee desires to license certain MIPS Core(s)
described in MIPS Core Technology Schedule(s) in the form attached
hereto as Exhibit A (each a " Technology
Schedule ") to be executed by the parties and appended to
this Master Agreement from time to time and MIPS is willing to
license said MIPS Core(s), all on the terms and conditions set
forth herein.
In consideration of the mutual promises
contained herein, the parties agree as follows:
1.1 " Authorized Foundry " means with
respect to a particular Licensed MIPS Core, the foundry(ies)
identified in the applicable Technology Schedule.
1.2 " Intellectual Property Rights " means
the collective intellectual property rights now held or hereafter
created or acquired by a party, whether arising under the laws of
the United States or any jurisdiction worldwide, for (i) all
classes or types of patents, including, without limitation, utility
models, utility patents and design patents, patent applications and
disclosures; (ii) all copyrights and moral rights in both
published and unpublished works and all registrations and
applications therefor; (iii) all mask works and all
registrations and applications therefore; and (iv) all
inventions, know-how, trade secrets, and confidential technical and
non-technical information.
1.3 " Licensee Application " means with
respect to a particular Licensed MIPS Core, the application for
which the Licensee Chips are targeted as identified on the
applicable Technology Schedule.
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1.4 " Licensee Chip " means a single die that
is packaged and that incorporates at least one instantiation of a
Licensed Hard Core Implementation of a Licensed MIPS Core, which
chip (i) is designed by Licensee for the applicable Licensee
Application; and (ii) contains substantial functionality in
addition to the functionality of the Licensed Hard Core
Implementation. A Licensee Chip shall not be a stand-alone
CPU.
1.5 " Licensed MIPS Core " shall mean a MIPS
Core licensed by MIPS to Licensee pursuant to, and described in, a
Technology Schedule entered into by the parties pursuant to
the terms of this Master Agreement.
1.6 " Licensed Hard Core Implementation "
means an implementation of a Licensed MIPS Core, in
non-synthesizable, layout (GDSII or other mutually agreed upon)
format, targeting a semiconductor manufacturing process technology
used by an Authorized Foundry, which has passed the Compatibility
Verification Process.
1.7 " MIPS Core " means any functional block
of integrated circuits that implement, in whole or in part, MIPS
Technology.
1.8 " MIPS Deliverable " means any
deliverable identified in a Technology Schedule to be
delivered by MIPS or that is otherwise delivered by MIPS to
Licensee under the applicable Technology Schedule. The MIPS
Deliverables may be further divided into "Restricted Confidential
Deliverables," including without limitation the Synthesizable
Licensed MIPS Core, "Internal Confidential Deliverables, "External
Confidential Deliverables" and "Commercial Deliverables" as set
forth in the applicable Technology Schedule.
1.9 " MIPS ISA " means any processor
instruction set architecture (" ISA ") and
associated privileged resource architecture first developed by or
for MIPS or its predecessor entities.
1.10 " MIPS Technology " means MIPS ISAs,
MIPS application specific extensions (" ASEs "),
MIPS Cores, MIPS Deliverables, any other MIPS Confidential
Information, and any Intellectual Property Rights associated with
the foregoing.
1.11 " Net Revenue " means the gross revenue
from the sale of each Licensee Chip accounted for in accordance
with generally accepted accounting principles, and after deduction
for discounts, returns, freight, insurance, taxes, and duties, if
any, which are separately identified on the invoice. Such gross
revenue shall include the fair market value of all non-monetary
consideration such as services or technology licenses received by
Licensee, and shall be no less than the amount which would be
negotiated for such gross revenue in an arm's-length
transaction.
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1.12 " Confidential Information " means
(a) the MIPS Technology, (b) any and all other
information which is disclosed by MIPS to Licensee orally,
electronically, visually, or in a document or other tangible form
and which is identified as confidential and/or proprietary,
(c) any test results, error data, or other reports, including
"Log Results" made by Licensee in connection with the license
rights granted under this Agreement or any Technology Schedule,
(d) any notes, extracts, analyses or materials prepared by
Licensee which are copies of the Confidential Information or from
which the substance of the Confidential Information can be inferred
or otherwise understood, and (e) the terms, conditions, and
existence of this Agreement and any Technology Schedules
"Confidential Information" shall not include information received
from MIPS which Licensee can clearly establish by written evidence
(i) is or becomes rightfully known by Licensee through
disclosure from a third party without an obligation to maintain its
confidentiality; (ii) is or becomes generally known to the
public through no fault of Licensee; or (iii) is independently
developed by Licensee without use of the Confidential Information.
MIPS does not desire to receive Licensee's confidential information
under the terms of this Agreement or any Technology Schedule.
Therefore, unless otherwise agreed in a separate written
non-disclosure agreement executed between the parties, any
information which Licensee supplies to MIPS shall not be subject to
an obligation of confidence by MIPS and MIPS shall not be liable
for any use or disclosure thereof, except for liability that may
arise out of the infringement of valid patents.
1.13 " Synthesizable Licensed MIPS Core "
means a RTL model of a Licensed MIPS Core, which can be synthesized
into a gate level netlist.
1.14 A Licensee Chip is " Taped Out " and the
" Tapeout " of such Licensee Chip occurs when the GDSII or
an equivalent format representation of such Licensee Chip is
completed.
2.1 License Grant . Subject to the terms and conditions of this
Agreement and the applicable Technology Schedule, MIPS grants to
Licensee a non-exclusive, worldwide, non-transferable right and
license under MIPS Intellectual Property Rights in the MIPS
Deliverables to:
2.1.1 internally develop or have developed by third
parties approved in writing by MIPS, a Licensed Hard Core
Implementation from the Synthesizable Licensed MIPS Core delivered
by MIPS under the applicable Technology Schedule;
2.1.2 internally design the Licensed Hard Core
Implementation developed pursuant to Subsection 2.1.1 into Licensee
Chips;
2.1.3 have made the Licensed Hard Core Implementation
as incorporated in Licensee Chips pursuant to Subsection 2.1.2 at
the Authorized Foundry to whose process the Licensed Hard Core
Implementation is targeted;
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2.1.4 use, import, offer for sale, and sell or
otherwise distribute the Licensed Hard Core Implementation as
incorporated in Licensee Chips only as provided in the applicable
Technology, Schedule;
2.1.5 use, copy, modify, reproduce and have
reproduced, create derivative works from, and sell or otherwise
distribute the Commercial Deliverables identified in the applicable
Technology Schedule and derivative works thereof only in
conjunction with distribution or sale of the applicable Licensee
Chips provided that all Commercial Deliverables and derivative
works thereof contain all copyright and other proprietary notices
contained in the original Commercial Deliverables provided by MIPS
to Licensee and are complete and accurate.
2.1.6 provide External Confidential Deliverables
identified in the applicable Technology Schedule under an
appropriate nondisclosure agreement to Licensee's customers only
for the purposes of developing and testing the customer's systems
which will incorporate a Licensee Chip and as otherwise
specifically permitted in the applicable Technology Schedule,
subject to any restrictions identified in the applicable Technology
Schedule.
2.2 Third Parties . For purposes of Subsections 2.1.1 and
2.1.2, "internally" shall include the use of individuals working at
Licensee's facilities who are not Licensee's employees provided
that such individuals work under the direct supervision of a
Licensee employee and that no more than five (5) of such
individuals work for the same third party unless approved in
writing by MIPS. Licensee's rights to use third parties to
internally develop and internally design under Subsections 2.1.1
and 2.1.2 and to use authorized third parties to "have developed"
and to "have made" under Subsections 2.1.1 and 2.1.3 are
conditioned upon each third party agreeing in writing to be bound
by obligations with respect to Confidential Information that are at
least as protective as those contained in this Agreement and each
third party supplying the contracted work solely to Licensee.
Licensee's deliverables incorporating MIPS Confidential Information
to each Authorized Foundry shall be limited to (i) GDSII files
of the entire Licensee Chip and (ii) production scan test
vectors for the entire Licensee Chip which have been generated by
automatic test program generation (ATPG) tools. If Licensee desires
to provide deliverables to an Authorized Foundry other than those
listed above which incorporate MIPS Confidential Information, prior
written approval from MIPS shall be obtained. Any required written
approval from MIPS to use a third panty may be obtained either in a
Technology Schedule or in a separate document (the form
attached as Exhibit C is to be used for this purpose).
If any third party breaches its obligations with respect to
Confidential Information referred to in this Section 2, and
Licensee fails to use its reasonable efforts to remedy the breach
and prevent further breaches by the third party and such failure
materially jeopardizes MIPS rights and interests in and to any MIPS
Technology, Licensee agrees that such bleach shall be treated as a
material breach of this Agreement and any applicable Technology
Schedule by Licensee which is incapable of remedy thus
entitling MIPS to terminate this Agreement and any applicable
Technology Schedule in accordance with the provisions of
Section 14 and MIPS may, at its election and in addition to
any other remedies that it may have, undertake enforcement directly
against the breaching third party. Licensee shall hold MIPS
harmless from and indemnify MIPS against any and all losses,
liabilities, costs, damages, and expenses (including reasonable
attorneys' fees), arising out of or in connection with such
breach.
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2.3 No Sublicenses . Licensee shall not have the right to
sublicense the rights granted hereunder to any third
party.
2.4 Limitation on License . All Intellectual Property Rights and other
proprietary rights of MIPS not expressly granted to Licensee in
this Agreement or the applicable Technology Schedule are
expressly reserved by MIPS. Other than the licenses specifically
granted to Licensee in Section 2.1, Licensee may not use the
MIPS Deliverables for any other purpose. No right is granted under
Section 2.1 to modify or create derivative works of the
Synthesizable Licensed MIPS Core except to configure it in
accordance with the options set forth in the Implementor's Guide
for the applicable Licensed MIPS Core (the " Configured
Synthesizable Licensed MIPS Core ") and as strictly
necessary to create Licensed Hard Core Implementations, provided
the sequential behavior of the Licensed Hard Core Implementation is
identical to the sequential behavior of the Configured
Synthesizable Licensed MIPS Core on a cycle-by-cycle basis.
Licensee shall not offer for sale, sell or distribute Synthesizable
Licensed MIPS Cores or Licensed Hard Core Implementations, or any
portion thereof, except when incorporated in the applicable
Licensee Chips.
2.5 No Reverse Engineering . Licensee may not reverse engineer any MIPS
Deliverables not delivered in source format (the " binary
materials ") nor may Licensee decompile, disassemble, or
otherwise reduce the binary materials or any component thereof to
human-readable or non-binary form.
3.1 Delivery . MIPS will deliver the MIPS Deliverables by
electronic means to Licensee in accordance with the delivery
schedule set forth in the applicable Technology Schedule or by
other means as appropriate. For purposes of this Agreement,
electronic delivery may be accomplished by electronically
transmitting deliverables or by making deliverables available for
download by Licensee from a protected download site.
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3.2
Use of Deliverables
. Licensee shall use the most recent
version of each MIPS Deliverable available from MIPS prior to the
commencement of the design of each Licensee Chip (which
commencement shall be no earlier than twenty-four (24) months prior
to first commercial shipment of such Licensee Chip), or any
subsequently available version of such MIPS Deliverable, in the
design and development of such chip. Licensee shall notify MIPS
(the form attached as Exhibit C is to be used for this
purpose) upon the commencement of the design of each Licensee Chip.
Provided Licensee complies with this Section 3.2 in the design
of a Licensee Chip, the MIPS Deliverables shall be covered by MIPS
indemnification as set forth in Section 12.1 with respect to
that Licensee Chip.
4.
COMPATIBILITY VERIFICATION PROCESS.
Licensee shall ensure that each Licensed Hard
Core Implementation passes the Compatibility Verification Process
identified in Exhibit B attached hereto before the
commencement of commercial production of each Licensee Chip
incorporating such Licensed Hard Core Implementation.
5.1 License Fees . For the rights granted in Section 2 with
respect no each Licensed MIPS Core, Licensee shall pay MIPS the
license fees set forth in the applicable Technology
Schedule in accordance with the schedule provided therein and
Licensee shall provide MIPS with the requisite purchase order as
soon as practicable after execution of each Technology
Schedule.
5.2 Royalties . For the rights granted in Section 2 with
respect to each Licensed MIPS Core, Licensee shall pay MIPS the
royalties set forth in the applicable Technology Schedule.
Royalties with respect to Licensee Chips shall accrue when Licensee
ships the Licensee Chips to its customers. Licensee shall pay all
royalties within thirty (30) days after the end of the calendar
quarter in which they accrue, and the parties agree that no amounts
shall be withheld from such royalty payments by Licensee for bad
debt.
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5.3 Support and Maintenance . For the rights granted in Section 9.1
with respect to each Licensed MIPS Core, Licensee shall pay MIPS
the support and maintenance fees set forth in the applicable
Technology Schedule and Licensee shall provide MIPS with the
requisite purchase order as soon as practicable after execution of
each Technology Schedule and thereafter at least thirty (30)
days prior to each applicable payment due date.
5.4 Late Payment Fees . All late payments shall be subject to a late
payment penalty calculated at the rate of one and one-half percent
(1.5%) per month or the maximum allowable by law, whichever is
less.
5.5 Wire Transfer Account; Taxes
. All payments shall be made in U.S.
dollars by wire transfer to: UBS AG, Postfach, 8201 Schaffhausen,
Switzerland, Bank Swift Code: UBSWCHZH82A, Account Name &
Number: MIPS Technologies International AG, 287-806489 02 V, or
such other account as MIPS may identify in writing from time to
time. All payments by Licensee shall be made free and clear of, and
without reduction for, any and all taxes, including, without
limitation, sales, use, value added, withholding or similar taxes,
excluding taxes which are imposed on the income of MIPS. Fees
payable to MIPS are subject to applicable local and state sales and
use taxes. The rate of conversion of royalties that accrue in
currencies other than U.S. dollars shall be the rate quoted by the
largest foreign exchange bank in Licensee's country of
incorporation as of the last business day of the calendar quarter
during which such royalties accrue. If necessary, Licensee shall
withhold from amounts otherwise payable to MIPS, and pay, on MIPS'
behalf, income taxes required by applicable law to be withheld by
Licensee and Licensee shall provide MIPS with tax receipts to
establish that all such taxes have been paid and are available to
MIPS for credit for Swiss income tax purposes or as otherwise
available to MIPS.
5.6 Royalty Reports . Within thirty (30) days after the end of each
calendar quarter, Licensee shall furnish to MIPS a statement for
each Technology Schedule entered into under this Agreement, in
suitable form, which identifies the applicable Technology
Schedule and provides the names and part numbers of all
Licensee Chips shipped during the quarter under that Technology
Schedule, the number of units of each Licensee Chip shipped during
the quarter under that Technology Schedule, the Net Revenue
associated with each such Licensee Chip shipped during the quarter,
whenever applicable, the number of instantiations of each Licensed
Hard Core Implementation that are in each such Licensee Chip,
whenever applicable, a non-binding forecast detailing the number of
Licensee Chips to be manufactured under that Technology
Schedule in the next six (6) months, and the amount, method of
calculation, and any other data necessary for calculation of the
royalty payable under that Technology Schedule for such
calendar quarter. All royalty reports should be sent to MIPS at the
address first set forth above, Attention: Dr. Peyer (Fax: 41
52 625 62 40) and a copy should be sent to MIPS Technologies, Inc.,
1225 Charleston Road, Mountain View, California 94043, U.S.A.,
Attention: Controller, Fax: 650-567-5156.
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5.7 Books and Records . Licensee shall keep complete and accurate
records which support the license fees, royalties, other payments
and reports provided to MIPS pursuant to Sections 5.1, 5.2,
5.3 and 5.6 respectively. These records shall be retained for a
period of at least three (3) years from the date of the applicable
payment or report, notwithstanding the expiration or other
termination of this Agreement or of any Technology Schedule. MIPS'
designated accounting firm shall have the right to examine and
audit, not more than once a year unless the preceding audit
revealed a material discrepancy, and during normal business hours,
all such records and such other records and accounts as may
contain, under recognized accounting practices, information bearing
upon the amount of license fees, royalties and other payments
payable to MIPS under this Agreement and any Technology Schedule.
Prompt adjustments shall be made by Licensee or MIPS to compensate
for any errors and/or omissions disclosed by such examination or
audit which result in an underpayment or overpayment of license
fees, royalties and/or other payments hereunder, including payment
of applicable late payment fees. Should the amount of any
underpayment exceed five percent (5%) of the total license fees,
royalties and other payments due for the period under audit,
Licensee shall pay for the cost of the audit.
6. MARKETING
RIGHTS AND OBLIGATIONS.
6.1 Licensee Rights and Obligations
. Licensee shall:
6.1.1 have the right to participate in cooperative
marketing activities in accordance with the terms of the separate
Trademark License Agreement entered into by the parties and
attached as Exhibit D to this Master Agreement (the "
Trademark License Agreement ");
6.1.2 consult with MIPS regarding any advertising or
trade practice which might adversely affect the good name,
trademarks, goodwill, or reputation of MIPS;
6.1.3 obtain and maintain all necessary government
licenses, permits and approvals when necessary or advisable for
implementation of this Agreement and any Technology Schedule, and
comply with all applicable laws and regulations; and
6.1.4 report all errors in the MIPS Deliverables
experienced by Licensee in sufficient detail to allow MIPS to
identify and recreate such errors.
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6.2 Press Release(s) . The parties agree to jointly issue a mutually
agreed upon press release (the date of which shall also be mutually
agreed) announcing the existence of this Agreement and each
Technology Schedule promptly after its execution. Thereafter, each
party may issue press releases or other promotional materials which
(i) identify Licensee as a MIPS licensee, (ii) identify
the Licensed MIPS Core(s) licensed to Licensee, and/or
(iii) identify the Licensee Chip(s) as incorporating such
Licensed MIPS Core(s). Licensee will use commercially reasonable
efforts to promote its use of MIPS Technology in its
products.
6.3 Trademarks . No rights to use MIPS trademarks are granted
under this Agreement. All such rights shall be granted pursuant to
the separate Trademark License Agreement.
7. OWNERSHIP
AND PROPRIETARY NOTICES.
7.1 MIPS Technology . Except as otherwise specifically provided in
this Agreement, MIPS reserves all right, title and interest in and
to the MIPS Technology and other designs, data, documentation,
technology, and/or know-how developed by or for MIPS.
7.2 Commercial Documentation . MIPS shall own all right, title and interest
in and to the Commercial Deliverables provided by MIPS to Licensee.
Licensee shall own all right, title and interest in and to the
modifications and derivative works of the Commercial Deliverables
created by Licensee, subject to MIPS' rights in the underlying
original Commercial Deliverables.
7.3 Proprietary Notices . To the extent requited by law, Licensee agrees
to place MIPS' respective copyright, mask work or patent notices on
Licensee's materials as specified by MIPS from time to time in
order for MIPS to protect its Intellectual Property
Rights.
7.4 Rights in Data . Licensee acknowledges that all software and
software related items licensed by MIPS to Licensee pursuant to
this Agreement and any Technology Schedule are "Commercial Computer
Software" or "Commercial Computer Software Documentation" as
defined in FAR 12 212 for civilian agencies and DFARS 227 7202 for
military agencies, and that in the event that Licensee is permitted
under this Agreement to provide such items to the U.S. government,
such items shall be provided under terms at least as restrictive as
the terms of this Agreement and the applicable Technology
Schedule.
8. COVENANT TO
FACILITATE DEVELOPMENT WITH MIPS TECHNOLOGY.
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The Parties agree to the terms and conditions
set forth in Exhibit E .
9. SUPPORT,
MAINTENANCE AND PROGRAM MANAGEMENT.
9.1 Maintenance and Support of Licensee
. MIPS will provide the maintenance
and support services in connection with the MIPS Deliverables as
set forth in the applicable Technology Schedule. If Licensee
requests additional support, MIPS shall use reasonable efforts to
provide additional support and assistance to Licensee with respect
to the MIPS Deliverables in accordance with the reasonable
availability of MIPS employees at MIPS' then-current standard fees,
terms and conditions. Licensee acknowledges that there may be
periods when MIPS employees are not available to provide support.
MIPS shall have no responsibility or obligation to provide any
maintenance or support with respect to any MIPS Deliverables that
have been modified by Licensee except as permitted under
Section 2.4 of this Agreement.
9.2 Support of Licensee Customers
. Licensee shall be responsible for
all support to customers of Licensee Chips. Licensee shall ensure
that all questions with respect to any Licensee Chip are addressed
to and answered by Licensee, and Licensee will not represent that
MIPS is available to answer any questions from such customers
directly.
9.3 Program Management . Each party shall identify individual
employee(s) (its " Program Manager(s) ") under
each Technology Schedule who shall be responsible for interfacing
with the other party, especially in connection with the provision
of MIPS Deliverables and support and maintenance, under that
Technology Schedule. The Program Manager(s) for each party shall be
knowledgeable about such party's products and design and
manufacturing activities and possess adequate communication skills
to keep the other party fully informed relative to such party's
performance under this Agreement and the applicable Technology
Schedule. Each party shall notify the other in writing of any
successor Program Manager(s).
10.
CONFIDENTIAL INFORMATION.
10.1 Use of Confidential Information
. Licensee agrees:
10.1.1 to use the Confidential Information only as
necessary to exercise its rights or fulfill its obligations under
this Agreement or any Technology Schedule;
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10.1.2 to implement reasonable procedures to prohibit
the disclosure, unauthorized duplication, misuse or removal of
Confidential Information; and
10.1.3 not to disclose Confidential Information
employees not having a need to know or to any third party (except
that Licensee may, in appropriate circumstances and subject to a
nondisclosure agreement with terms and conditions at least as
protective as the terms of this Section 10, disclose
Confidential Information to Licensee's contractors and customers,
solely as permitted under Section 2 of this
Agreement).
10.2 Standard of Care . Without limiting the foregoing, Licensee
shall at all times protect the Confidential Information with at
least the same standard of care as it exercises to protect its own
confidential information of like importance, but in no event less
than reasonable care. Notwithstanding the foregoing, Licensee
acknowledges and agrees that the Synthesizable Licensed MIPS Core,
Verification Test Suite and any MIPS Deliverables identified as
Restricted Confidential Deliverables on the applicable Technology
Schedule (collectively " Restricted Confidential
Deliverables ") are furnished to Licensee on an enhanced
confidential and trade secret basis and Licensee agrees to take
additional steps to prevent unauthorized disclosure thereof,
including but not limited to, the following:
10.2.1 Except as set forth in Subsection 10.2.2.5
below, Licensee will use the Restricted Confidential Deliverables
only select buildings at a site approved by MIPS, which buildings
shall have restricted access twenty-four (24) hours a day, and
Licensee shall not use the Restricted Confidential Deliverables in
any other buildings or at any other site without MIPS' prior
written consent;
10.2.2 For Restricted Confidential Deliverables that
are capable of being stored on a computer, the following
restrictions apply:
10.2.2.1 Restricted Confidential Deliverables may be
placed on file server(s) only if access to such server(s) is
restricted to a known set of computer systems (the "
Systems "). Except as necessary to carry out
Subsection 10.2.2.5 below, the Systems will be located exclusively
in the select buildings identified in Subsection 10.2.1
above;
10.2.2.2 Restricted Confidential Deliverables shall be
protected using, at a minimum, native operating system permissions
capabilities to restrict all access (including read access) to a
known and specific group of users, each of whom has a need to use
as set out in Subsection 10.2.4 below. Moreover, such users shall
use commercially reasonable password security, and "log or off" or
"lock access" to their Systems when not in use;
10.2.2.3 Restricted Confidential Deliverables may be
backed up only to a medium which is also protected as requited for
Restricted Confidential Deliverables;
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10.2.2.4 Except as provided in this Subsection 10.2.2.4,
the Systems will not allow access to a privileged account (e.g., a
"root," "supervisor" or "administrative" account) that would allow
bypassing of access control mechanisms as set out in Subsection
10.2.2.2 above. If such privileged accounts must exist for normal
maintenance or administrative purposes, these accounts will be
restricted to a small set of Licensee's employees who will be
subject to the terms of Subsection 10.2.4 below; and
10.2.2.5 Licensee shall prevent remote access to the
Restricted Confidential Deliverables from other locations by any
party other than Licensee's employees that would otherwise have
access and/or MIPS. Should files move to another system, whether or
not remote, the same access limitations shall apply.
10.2.3 Licensee agrees so allow reasonable access for
MIPS representatives to all buildings, rooms and computers
including passwords) where the Restricted Confidential Deliverables
are kept, during normal business hours, to ensure that Licensee is
complying with its obligations with respect to such
information.
10.2.4 Licensee agrees to restrict access to the
Restricted Confidential Deliverables solely to those of its
employees who have a need to use the information for performing its
duties and exercising its rights under this Agreement. As used in
this Agreement "access" means having the capability to view, copy,
display, print, transfer, or otherwise manipulate or have exposure
to any form of the information. Licensee agrees to maintain a list
(which may be an electronic log) of all individuals who at any time
actually have access to or have had access to the Restricted
Confidential Deliverables or any portion thereof, including those
individuals having privileged accounts as permitted under
Subsection 10.2.2.4. Licensee agrees to comply with the requests of
MIPS, from time to time, to provide MIPS with information required
to determine whether specified individuals did or did not have
access to the Restricted Confidential Deliverables or any portion
thereof.
10.3 Confidentiality of Agreement
. Except as expressly provided
herein, each party agrees that the terms and conditions of this
Agreement and any Technology Schedule shall be treated as
confidential and that neither party will disclose the terms or
conditions of this Agreement or any Technology Schedule to any
third party without the prior written consent of the other party,
provided, however, that each party may disclose the terms and
conditions of this Agreement, to the extent necessary: (a) as
required by any court or other governmental body; (b) as
otherwise required by law; (c) in confidence to legal counsel
of the parties, accountants, and other professional advisors;
(d) in confidence, to banks, investors and other financing
sources and their advisors; (e) in connection with the
enforcement of this Agreement or rights under this Agreement; or
(f) in confidence, in connection with an actual or prospective
merger or acquisition or similar transaction. With respect to
disclosure required by a court, governmental order or otherwise
required by law, the party required to disclose shall provide prior
notification of such impending disclosure to the other party and
use all reasonable efforts to preserve the confidentiality of the
terms of this Agreement and any Technology Schedule in complying
with such required disclosure, including obtaining a protective
order to the extent reasonably possible.
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11.
DISCLAIMER OF WARRANTIES.
MIPS MAKES NO WARRANTIES AND DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS, REGARDING THE LICENSED MIPS CORES, LICENSED
HARD CORE IMPLEMENTATIONS, LICENSEE CHIPS, AND MIPS
TECHNOLOGY.
12.1 Indemnification by MIPS .
12.1.1 Subject to the limitations set forth in this
Agreement, MIPS shall defend, indemnify and hold Licensee harmless
against any action brought against Licensee as a result of a claim
based on infringement of an Intellectual Property Right of a third
party in the United States, Japan or the countries contained in the
European Union as of the Effective Date of this Agreement by the
MIPS Deliverables in the form provided by MIPS to Licensee
hereunder; provided that Licensee: (A) promptly notifies MIPS
in writing of any such claim, and (B) reasonably cooperates
with MIPS, at MIPS' expense, in defending or settling such claim.
MIPS shall have sole control of the defense and all related
settlement negotiations, provided however that Licensee shall have
the right to be represented by its own attorney at its expense.
This indemnity does not extend to:
(a) a claim based upon an infringement or alleged
infringement of any Intellectual Property Right of a third party
by:
(i) the manufacturing process used to manufacture
Licensee Chips,
(ii) any modification or enhancement to any MIPS
Deliverable made by or for Licensee or made by MIPS at Licensee's
request,
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(iii) the use of a version of MIPS Deliverables in
the design of a Licensee Chip that is not covered for
indemnification under Section 3.2 with respect to that
Licensee Chip,
(iv) the use of any Licensed Hard Core
Implementation, Licensee Chip or MIPS Deliverables outside the
scope of the licenses hereunder or in combination with other
technology, equipment or software not provided by MIPS;
(b) a claim arising from any false or misleading
representation made by Licensee or its agents regarding any MIPS
Technology, Licensed MIPS Core, Licensed Hard Core Implementation,
and/or Licensee Chip, or otherwise arising from the marketing or
distribution practices adopted by Licensee or its agents in
connection with Licensee Chips.
12.1.2 If in MIPS' reasonable judgment, the use and/or
licensing of any MIPS Deliverable, a Licensed Hard Core
Implementation, or any portion thereof, and/or the use, manufacture
or sale of Licensee Chips, is likely to be found to infringe the
Intellectual Property Rights of a third party, MIPS may, at its
option, either (x) procure the right to allow Licensee to
continue the allegedly infringing activity; (y) replace or
modify the affected MIPS Deliverables so that they become
non-infringing; or (z) if (x) or (y) is not commercially
practicable, or Licensee does not cease use of any MIPS Deliverable
which was modified or replaced or cease the use, manufacture or
sale of any Licensee Chip which may be infringing the Intellectual
Property Rights of a third party, then MIPS may provide written
notice to Licensee identifying the allegedly infringing MIPS
Deliverable or the allegedly infringing activity and terminate
Licensee's license with respect thereto. In the event Licensee
requests that the license with respect to any allegedly infringing
MIPS Deliverable or allegedly infringing activity remain in effect,
such license would remain in effect for so long as Licensee
procures any necessary licenses from third parties and indemnifies
MIPS for all costs and damages incurred by MIPS with respect to
Licensee's continued use of the allegedly infringing MIPS
Deliverable or the allegedly infringing activity. Upon MIPS
performance of (x), (y) or (z) above, the liability of MIPS for
such alleged infringement shall terminate with respect to all
damages arising from such alleged infringement after the date of
MIPS' performance.
12.1.3 THIS SECTION 12.1 STATES MIPS' ENTIRE LIABILITY
FOR INFRINGEMENT.
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12.2 Indemnification by Licensee
. Subject to the limitations set
forth in this Agreement, Licensee shall defend, indemnify and hold
MIPS harmless against any action brought against MIPS as a result
of:
(a) a claim based upon an infringement or alleged
infringement of any Intellectual Property Right of a third party
by:
(i) the manufacturing process used to manufacture
Licensee Chips,
(ii) any modification or enhancement to any MIPS
Deliverable made by or for Licensee or made by MIPS at Licensee's
request,
(iii) the use of a version of MIPS Deliverables in
the design of a Licensee Chip that is not covered for
indemnification under Section 3.2 with respect to that
Licensee Chip, or
(iv) the use of any Licensed Hard Core
Implementation, Licensee Chip or MIPS Deliverables outside the
scope of the licenses hereunder or in combination with other
technology, equipment or software not provided by MIPS;
or
(b) a claim arising from any false or misleading
representation made by License: or its agents regarding any MIPS
Technology, Licensed MIPS Core, Licensed Hard Core Implementation,
and/or Licensee Chip, or otherwise arising from the marketing or
distribution practices adopted by Licensee or its agents in
connection with Licensee Chips; provided that MIPS:
(A) promptly notifies Licensee in writing of any such claim,
and (B) reasonably cooperates with Licensee, at Licensee's
expense, in defending or settling such claim. Licensee shall have
sole control of the defense and all related settlement
negotiations, provided however that Licensee may not enter into any
settlement providing for any restriction on MIPS or any MIPS
Technology without MIPS' consent, and provided further that MIPS
shall have the right to be represented by its own attorney at its
expense. Except as otherwise expressly set forth in
section 12.1.2 above, THIS SECTION 12.2 STATES LICENSEE'S
ENTIRE LIABILITY FOR INFRINGEMENT.
13.
LIMITATION OF LIABILITY.
EXCEPT FOR BREACHES OF SECTION 2 ("
LICENSE GRANTS ") AND SECTION 10 ("
CONFIDENTIAL INFORMATION "), NEITHER PARTY SHALL
BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL,
SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF
THIS AGREEMENT, WHETHER SUCH
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LIABILITY IS
ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR
STRICT LIABILITY), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN WARNED
OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE IN ADVANCE. IN NO
EVENT SHALL MIPS' TOTAL LIABILITY UNDER THIS AGREEMENT, INCLUDING
ITS LIABILITY UNDER SECTION 12.1 (" INDEMNIFICATION BY
MIPS "), EXCEED THE LESSER OF THE LICENSE FEES PAID FOR
THE LICENSED MIPS CORE THAT 1S THE SUBJECT MATTER OF THE CLAIMS OR
$1,000,000.00. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, IN NO EVENT SHALL MIPS BE LIABLE FOR ANY DAMAGES
RELATING TO OR RESULTING FROM THE USE OF MIPS TECHNOLOGY IN
PRODUCTS USED FOR AVIATION, MEDICAL, NUCLEAR OR ULTRA HAZARDOUS
PURPOSES OR FOR ANY DAMAGES OWED TO THIRD PARTIES RELATING TO
TECHNOLOGY NOT PROVIDED BY MIPS. LIABILITY FOR DAMAGES SHALL BE
LIMITED AND EXCLUDED AS SET FORTH HEREIN, EVEN IF ANY EXCLUSIVE
REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL
PURPOSE.
14.
TERM AND TERMINATION.
14.1 Term .
The term of this Agreement shall begin on the Effective Date and,
unless earlier terminated as provided below, shall continue until
all Technology Schedules entered under its terms have terminated or
expired. The term of any Technology Schedule will be as set forth
in the Technology Schedule.
14.2 Termination of the Master Agreement
. Either party may terminate this
Master Agreement effective immediately upon written notice to the
other party for any reason with or without cause of any nature,
thereby terminating the ri
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