iv
DataDirect Networks S2A 9550 User Guide
Important Information
SUPPLEMENTAL DISTRIBUTION AGREEMENT
This SUPPLEMENTAL DISTRIBUTION AGREEMENT (the “Agreement”) is made and entered into as of the date specified below (the “Effective Date”) by and
between WIND RIVER SYSTEMS, INC., a Delaware corporation having a principal place of business at 500 Wind River Way, Alameda, CA 94501 (“Wind River”),
and DataDirect Networks, Inc., a California corporation having a principal place of business at the address set forth on the Production Exhibit attached
hereto (“Customer”).
RECITALS
A. Customer has previously acquired or is simultaneously acquiring from Wind River rights to use internally certain Software in the development of
a Run-Time Module for incorporation into Customer’s Target Application.
B. Customer now desires to obtain the rights to reproduce and distribute the Run-Time Module as incorporated into the Target Application and Wind
River is willing to grant Customer such license rights upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, Customer and Wind River agree as follows:
AGREEMENT
1. DEFINITION OF TERMS
1.1 “Approved CPU” means the host computer on which the Software, per its documentation, is intended to operate and upon which Customer
installs and uses the Software, as specified in Exhibit A.
1.2 “Authorized Site” means the specific address of Customer’s facility consisting of a single building or multiple buildings on a contiguous
campus where the Approved CPU upon which the Software is first installed and put into use is physically located, as specified in the Production Exhibit.
1.3 “End User” means any entity to which Customer provides its Target Application.
1.4 “Object Code” means software in a form not readily perceivable by humans and suitable for machine execution without the intervening steps
of interpretation or compilation.
1.5 “Production Exhibit” means an Exhibit to this Agreement, signed by Customer and by Wind River, which identifies: (i) the specific Run-Time
Module; (ii) the number of copies of the Run-Time Model which Customer is authorized to make and distribute pursuant to this Agreement; (iii) the Target
Application; (iv) the per copy royalty Customer must pay Wind River for each Run-Time Module; and (v) any other related information.
1.6 “Run-Time Module” means an Operating System Component in Object Code form, identified in the Production Exhibit, or any portion thereof,
which Customer may be authorized to furnish to End Users as inseparably embedded code within a Target Application.
1.7 “Target Application” means an item, device or system manufactured by Customer, as described in the Production Exhibit, that contains a
Run-Time Module, or any portion thereof, including any modified or successor version of said item, device or system.
2. LICENSE.Subject to the terms and conditions of this Agreement, and Customer’s payment of the applicable fees, Wind River grants to Customer a
non-exclusive, non-transferable, royalty-bearing license: (i) to reproduce the number of copies of the Run-Time Module authorized in the Production
Exhibit, solely in Object Code form, at the Authorized Site; (ii) to distribute the Authorized Run-time Module to End Users worldwide, solely as inseparably
embedded content in the Target Application; and (iii) to sublicense End Users, subject to the restrictions in Section 3.2, the right to use the Authorized
Run-Time Module in connection with the operation of the Target Application.
3. RESTRICTIONS.
3.1 Restrictions. Customer shall not list or quote a Run-Time Module as a separately priced item or option. Customer shall configure the Run-Time
Module within Customer’s Target Applications, so that they will not operate apart from the operation of the Target Application.
3.2 End User Agreements. Customer shall take all steps necessary to protect Wind River’s and its licensors’ proprietary rights in the Run-Time
Module and to ensure that each Run-Time Module distribute by Customer will be accompanied by a localized copy of an End User license agreement. Such
End User license agreement shall prohibit the End User from: (i) copying the Run-Time Module, except for archive purposes consistent with the End User’s
archive procedures; (ii) transferring the Run-Time Module to a third party apart from the Target Application; (iii) modifying, decompiling, disassembling,
reverse engineering or otherwise attempting to derive the Source Code of the Run-Time Module; (iv) exporting the Run-Time Module or underlying
technology in contravention of applicable U.S. and foreign export laws and regulations; and (v) using the Run-Time Module other than in connection with
operation of the Target Application. In addition, the End User license agreement shall: (i) state that the Run-Time Module is licensed, not sold and that
Customer and its licensors retain ownership of all copies of the Run-Time Module; (ii) expressly disclaim all warranties; (iii) disclaim all implied warranties
including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement; and (iv) exclude liability
for any special, indirect, punitive, incidental and consequential damages. The End User license agreement shall also state that, with respect to the Run-Time
Module, Wind River and its licensors are third party beneficiaries of the End User license agreement and that the provisions related to the Run-Time Module
are made expressly for the benefit of, and are enforceable by, Wind River and its licensors.
4. ORDERING, PAYMENT, TAXES AND RECORDS.
4.1 Ordering and Payment. Upon execution of the Production Exhibit, Wind River will invoice and Customer shall pay any applicable fees for
the distribution of the specified number of Run-Time Modules as set forth in the Production Exhibit. Customer may, pursuant to the terms set forth in the
Production Exhibit, obtain the right to reproduce and distribute additional Run-Time Modules through the submission of purchase orders referencing the
applicable Production Exhibit. Wind River will invoice Customer for such additional Run-Time Modules upon confirmation and acceptance of Customer’s
purchase order. Payment of all amounts shall be due thirty (30) days after receipt of invoice or, for royalty payments, within thirty (30) days of the end of
each calendar quarter. Interest on any late payments shall accrue at the rate of one and one-half percent (1.5%) per month, or the highest rate permitted by
law, from the date such amount is due until finally paid. Any failure of Customer to make timely payment of any invoice may, at Wind River’s discretion, be
deemed a material breach of this Agreement.
4.2 Taxes. All payments and amounts due hereunder shall be paid without deduction, set-off or counter claim, and free and clear of any restrictions
or conditions, and without deduction for any taxes, levies, imposts, duties, fees, deductions, withholdings or other governmental charges, excluding taxes
on Wind River’s overall net income. If any deduction is required to be made by law, Customer shall pay in the manner and at the same time such additional
amounts as will result in receipt by Wind River of such amount as would have been received by Wind River had no such amount been required to be
deducted. If Customer is claiming sales or use tax exemption, a certified Tax Exempt Certificate must be attached to this Agreement or applicable purchase
order submitted by Customer.
