| ***Sun Proprietary/Confidential*** |   | **Exhibit 10.70**

*** ***

***Agreement No. 91429*** |
|------------------------------------|--------|------------------------------------------------------------|

** **

** **

**AmendmentNo. 3 To The**

**TechnologyLicense and Distribution Agreement**

** **

**between**

 

**SunMicrosystems, Inc. and Insignia Solutions, Plc.**

 

THISAMENDMENT NO. 3 (the "Amendment 3") to the Technology License andDistribution Agreement No. 15174, dated March 3, 1999 (the"Agreement") between Sun Microsystems, Inc., located at 901 SanAntonio Road, Palo Alto, California 94303 ("Sun") and InsigniaSolutions, Plc., an English company with its principal place of businesslocated at 41300 Christy Street, Fremont, California 94538("Insignia") is entered into this 28th day of September,2001 (the "Amendment 3 Effective Date") by and between the sameparties. This Amendment 3 is in addition to the Agreement. In the event of aconflict between the terms of the Agreement and the terms of this Amendment 3(including Exhibits attached hereto), the terms of this Amendment 3 shallgovern. All capitalized terms used herein shall have the same meaning set forthin the Agreement, unless otherwise stated. 

 

**AMENDMENT**

 

**1.Definitions.**

1.1           The following are hereby added to thedefinition of "Java Environment": Java 2 Platform, Micro Edition,Connected  Device Configuration("CDC"), Foundation Profile ("FP"), Connected LimitedDevice Configuration ("CLDC"), Mobile Information Device Profile(MIDP") and Java TV Technology ("JavaTV), as more fully described inExhibits C-4 through C-7.

 

1.2           Section 1.0 (Definitions) of theAgreement is amended by adding the following new definitions to the Agreement:

 

1.42"J2MEBased Insignia Product(s)" means an Insignia Product into which CDCintegrated with FP, or CLDC integrated with MIDP, or Java TV integrated withpJava has been implemented or integrated.

1.43"eJavaBased Insignia Product(s)" means an Insignia Product into which the eJavaJava Environment has been integrated or implemented.

1.44"PJavaBased Insignia Product(s)" means an Insignia Product into which the pJavaJava Environment has been integrated or implemented and which does notimplement or integrate the Java TV Java Environment.

1.45"OEM,"for purposes of this Amendment 3 means an entity that sells its own proprietaryvalue-added finished hardware or software products incorporating InsigniaProducts to end users either directly, or through distributors.

1.46"SunChannel License" means a license with Sun authorizing the licensee todistribute the applicable Java Environment only to OEMs pursuant to a CustomerAgreement (i.e. "Customer Agreement" as defined in the   Sun Channel Licensee's license with Sun). 

 

1.3           Section 1.12 "InsigniaLicensee(s)" shall be amended to add the following to the end of thedefinition: 

                "To the extent thatInsignia has been granted rights (pursuant to section 2.9.6) to distributeInsignia Products to customers who are not Sun Licensees, "InsigniaLicensee(s)" shall mean customers of Insignia who are OEMs who have binarycode licenses with Insignia to: (i) use Insignia Products internally in binaryform; and (ii)  distribute InsigniaProducts in binary form within such an Insignia Licensee Product.

                

**2.Additional Technologies.** The parties hereby agree to addExhibits C-4 (CDC/FP), C-5(CLDC), C-6 (MIDP), and C-7 (Java TV) to theAgreement.   Ifand when Sun first makes areference implementation for Java Specification Request no. 62 (hereafterreferred to as "Personal Profile") generally commercially available("FCS"), upon the condition that Insignia first agrees to the thenstandard terms and conditions for Personal Profile (which shall be amended hereto), then: a) PersonalProfile may be added to the definition of "Java Environment" and b)Insignia may distribute Insignia Products incorporating TCK compliantimplementations of Personal Profile which are tightly integrated and configuredto run in conjunction with the combined stack of Insignia's implementations ofCDC and FP.  Insignia understands andagrees that Personal Profile does not now and may never exist and that thedecision as to whether and when to FCS the Personal Profile lies within Sun'ssole discretion .

 

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Confidential treatment has been requested for portionsof this exhibit.  The copy filedherewith omits the information subject to the confidentiality request.  Omissions are designated as [******].  A complete version of this exhibit has beenfiled separately with the Securities and Exchange Commission.

**3.  Royalty Price and Prepayment.**

3.1           Prepayment. Insignia shall pay Sun aroyalty prepayment in the amount of [******] ("Prepayment").  The Prepayment is non-refundable, non-transferableand due in four equal installments of [******] each.  Such installments are due according to the following schedule:payment 1 is due upon execution of this Amendment 3; payment 2 is due on orbefore October 1, 2001;  payment 3 isdue on or before January 2, 2002 and payment 4 is due on or before April 1,2002.  Any portion of the Prepayment notused on or before June 30, 2004 shall be forfeited. Failure to make any of theinstallments of the Prepayment on or before the date specified shall result inthe prices in this agreement for CDC, FP, PP, CLDC, MIDP and Java TV revertingto standard list price, and for PJava and eJava reverting to the lesser of theprices as stated in the Agreement prior to this Amendment 3, or standard listprice. 

 

3.2           Discounted Per Copy Price.  Prices for PJava stated in the table belowshall apply to up to the first [******] units of PJava Based Insignia Productsshipped from July 1, 2001 through September 30, 2001.  Royalties for units of PJava Based Insignia Products shippedduring the period July 1, 2001 through September 30, 2001 which exceed the [******]units shall be paid at the rates as specified in the Agreement, prior toexecution of this Amendment 3. Prices for CDC/FP(PP), Java TV,  CLDC/MIDP and eJava shall become effectiveon the Amendment 3 Effective Date. Notwithstanding the foregoing, the prices in this  Amendment 3 shall not have the effect ofraising the price in the recently executed Addendum to the Agreement relatingto Phoenix Technologies, Sun Agreement no. 91429, nor shall the [******] PJavaunit cap to which the retroactive pricing stated above, apply to the unitsshipped pursuant to the aforementioned Phoenix Technologies Addendum. 

 

Source and NRE Fees:  Sections 4.2 a) (i) and 4.2 a) (ii) of the Agreementare hereby deleted in their entirety.

 

* "PP" hererefers to Personal Profile. The combined stack price for CDC and FP is asstated in the tables below for "CDC/FP/(PP)."  If and when Sun first makes animplementation of Personal Profile generally commercially available andInsignia distributes Personal Profile in accordance with Section 2 of thisAmendment 3, Insignia shall pay the price as stated in the table below for thecombined stack CDC/FP/PP.

 

**Pricingin Year 1 (July 1, 2001-June 30, 2002):**

 

PJava                   [******] 

CDC/FP/(PP)*    [******] 

Java TV               [******]

CLDC/MIDP       [******]

EJava                   [******]

 

**Pricingin Year 2 (July 1, 2002-June 30, 2003):**

 

PJava                    [******]

CDC/FP/(PP*)     [******]

JavaTV                [******]

CLDC/MIDP        [******]

EJava                    [******]

 

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*Certain information on this page has been omittedand filed separately with the Securities and Exchange Commission.  Confidential treatment has been requestedwith respect to the omitted portions.

**Pricingin Year 3 (July 1, 2003-June 30, 2004):**

** **

PJava     -             [******]

CDC/FP/PP -       [******]

Java TV        -      [******]

CLDC/MIDP -     [******] 

EJava     -             [******]

 

3.3           Prepayment Applicability. Royaltiesdue for eJava, pJava, CDC/FP, JavaTV, CLDC and MIDP may be credited against thePrepayment. If and when Sun FCSes Personal Profile, royalties due for Insignia Products implementing orincorporating Personal Profile may be credited against the Prepayment.

 

3.4           Payments.  Insignia's payment obligations to Sun accrue upon the earlier ofrevenue recognition by Insignia in connection with Insignia Product ("Revenue RecognizedPayment"), or upon shipment by an OEM of any Insignia Licensee Product("OEM Shipped Payment"). Revenue Recognized Payments and OEM ShippedPayment shall be paid to Sun within thirty (30) days following the end of thecalendar quarter in which the obligation to pay Sun accrued, together with areport specifying all relevant details regarding same, including the allocationbetween the Revenue Recognized Payment and the OEM Shipped Payment, the numberof units shipped attributed to the OEM Shipped Payment, the number of unitsshipped corresponding to Revenue Recognized Payments made by Insignia in anyprior calendar quarter (including identification of the Revenue RecognizedPayment to which such units correspond.) Any amount which Insignia recognizesas revenue during a calendar quarter, and for which an OEM ships during thatsame calendar quarter shall be paid and reported as an OEM Shipped Payment.

 

3.5           Insignia Licensee Payments.  Insignia shall have no obligation to payroyalties to Sun for distribution of Insignia Licensee Products by an InsigniaLicensee that also has a license with Sun for the same Java Environment andpermitting commercial redistribution of the Java Environment, if said InsigniaLicensee is paying royalties directly to Sun, in accordance with such InsigniaLicensee's license with Sun, for distribution of said Insignia LicenseeProducts. 

 

3.6           Royalty Payments.  Section 4.2 a) iii) of the Agreement shallbe amended by adding the following: "Following first distribution ofInsignia Products, in any quarter in which no royalties are owed, Insignia willsubmit a report so indicating. Insignia will additionally report quarterly thenumber of units distributed by the Insignia Licensee(s), any deferred revenue(even if a royalty is not then due) and the associated number of units, and theidentities of the respective Insignia Licensees.    Royalty reporting and payments (except for royalty prepayments,which shall be sent to the location specified on Sun's invoice) shall be sentto:  Sun Microsystems, Inc., SoftwareRoyalty Accounting Group, PO Box 1090, Palo Alto CA 94303."

 

**4.Distribution License.**

 

**4.1          Branding. **Section 2.9.4 of the Agreement shall be amendedby adding the following: "Insignia shall ensure that all InsigniaLicensees brand their Insignia Licensee Products with the applicable JavaEnvironment compliance logo pursuant to the trademark license attached heretoand incorporated herein as Exhibit F-1 ("Pro Forma TrademarkLicense"). Insignia shall not have the foregoing obligation with respectto Insignia Licensees who have an existing, valid trademark agreement with Sunobligating them to brand their products in accordance with the branding obligationsin the Pro-Forma  Trademark License.)Sun reserves the unilateral right to modify the trademark license attached asExhibit F-1. Sun shall not exercise such right to modify the trademark licensemore frequently than every [******] (and upon no less than forty-five (45) daysnotice), except upon a significant change in the law affecting theenforceability of the trademark license or Sun's rights in the CompatibilityLogos, or  upon Insignia's writtenconsent." Notwithstanding the requirements of the Pro Forma TrademarkLicense (Section 2.7d Of the version that is current as of execution of thisAmendment No. 3), Insignia shall use its best efforts to [******].

 

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*Certain information on this page has been omittedand filed separately with the Securities and Exchange Commission.  Confidential treatment has been requestedwith respect to the omitted portions.

**4.2          Distribution to Non-Sun Licensees.**A new section 2.9.6 shall be added to the Agreement as follows:

**2.9.6       Distribution to Non-Sun Licensees**

 

2.9.6.1     Notwithstanding Section 2.9.2 of theAgreement, Insignia may distribute Insignia Products in binary code form only,to customers who are not Sun Licensees ("Non-Sun Licensees"), uponthe condition that such distribution is only made subject to a CustomerAgreement (as defined below), and only where such customers are acting as OEMs.

 

2.9.6.2     Sun retains the right, upon sixty (60) daysnotice to terminate this right to distribute to Non-Sun Licensees. (Terminationunder this section 2.9.6.2 of Insignia's right to distribute to Non-SunLicensees shall not terminate Customer Agreements entered into prior to theeffective date of Sun's termination under this section.)

 

 

**4.3          TCK Requirements.**  A new section 2.9.7 shall be added to theAgreement as follows:

2.9.7        Insignia shall ensure that all InsigniaLicensees will separately fulfill Sun's TCK and other compatibilityrequirements (including fulfilling all requirements of the Sun Specifications)before such Insignia Licensees may distribute Insignia Licensee Products;provided, however, that Insignia's obligation shall be excused, at Sun's solediscretion, only for Insignia Products provided to the Insignia Licensee byInsignia in executable form that is running on Insignia Licensee Products, andonly if: (i) such Insignia Product has not in any way been modified or renderednoncompliant with the above requirements of Sun, either by modifications to theInsignia Product, inclusion of other functionality, or otherwise; and (ii) theInsignia Licensee certifies to Sun, in a writing signed by an authorizedrepresentative of such Insignia Licensee, compliance with the obligations ofSection 2.9.7.  If the requirements ofthis Section 2.9.7  are satisfied and anInsignia Licensee is otherwise eligible for an applicable Technology logo, suchInsignia Licensee may enter into Sun's then-current standard trademark licensedirectly with Sun.  In no event shallany Insignia Licensee use any technology compliance logo, or distributeInsignia Licensee Products bearing any Technology compliance logo, whether onthe device casing itself, on the user interface of the device, or otherwise,unless the requirements of this Section 2.9.7 and said trademark license aresatisfied.

 

**4.6          Customer Agreements.**  A new section 2.9.8 shall be added to theAgreement as follows:

2.9.8.1     Insignia Products shall be distributed onlypursuant to a written agreement consistent with and no less restrictive thanthe requirements of this Agreement, as amended, including without limitationthe requirements set forth in Sections 2.9.4, and 2.9.7 (such agreementhereinafter referred to as "Customer Agreement"). This obligationshall not apply to distributions by Insignia to: i) an entity acting under aSun Channel License for the applicable Java Environment or ii) an entity actingas an OEM pursuant to a then current Sun license with commercial distributionrights for the applicable Java Environment, or iii) a licensee of eJava orPJava Based Insignia Products who has a license with Sun for the applicableJava Environment.   In the eventInsignia is distributing Insignia Product to Non-Sun Licensees, pursuant toSection 2.9.6.1 or to Sun Licensees who do not have Sun Channel Licenses, then  Insignia shall ensure that such InsigniaLicensees, to the extent they are not acting as OEMs, distribute their InsigniaLicensee Product only to entitities acting as OEMs, and only pursuant to aCustomer Agreement binding that OEM.) 

 

2.9.8.2     Sun shall be expressly named in CustomerAgreements as an intended third party beneficiary of the obligations set forthherein relating to those terms concerning Sun's interest.  Insignia shall use commercially reasonableefforts, comparable to efforts made by Insignia for Insignia's own products, tomonitor and enforce adherence to Customer Agreements and shall promptly informand consult with Sun if Insignia becomes aware of any substantialnon-compliance or other action inconsistent with protection of Sun'sintellectual property rights.  Insigniaagrees to use its best efforts to perfect and enforce Sun's  rights as an intended third partybeneficiary under the Customer Agreements including, but not limited toassigning to Sun, those rights necessary to protect Sun's Intellectual PropertyRights and to enforce the TCK and compatibility obligations of InsigniaLicensees and their OEM customers under the Customer Agreements, and to applyfor and obtain recordation of and from time to time enforce, maintain, anddefend the assigned rights.

 

2.9.8.3     Nothing in this Section 2.9.8 affects anyobligations under Section 2.9.3 (End User License Terms). 

 

**5.Support and Upgrades**

5.1           Section 3 of the Agreement is herebydeleted in its entirety and replaced by the following: "NotwithstandingSection 2.7, Sun shall provide Sun Upgrades, the TCK, training and support toInsignia subject to a valid Master Support Agreement ("MSA") withSun, and payment of the applicable fees as specified in the MSA, a copy ofwhich is executed on even date herewith." Sun shall have no obligation toprovide support directly to Insignia Licensees for the Insignia Products.

 

6. **End User License Terms.  Section 2.9.3 shall be amended to add thefollowing to the end of the section:**

 

At a minimum,Insignia shall include (substituting Insignia's name in place of Sun, whereappropriate) the following terms (regardless of whether the relevant ExhibitC-n explicitly refers to such terms). Insignia may include different words, solong as they provide protection that is substantially equivalent to thatprovided by the wording below.

 

a.             Restrictions. Software is confidential copyrighted information of Sun and title to allcopies is retained by Sun and/or its licensors.  Software shall not be modified, decompiled, disassembled,decrypted, extracted, or otherwise reverse engineered. [******] Software maynot be leased, assigned, or sublicensed, in whole or in part. 

 

b.             Export Regulations.  Software, including technical data, issubject to U.S. export control laws, including the U.S. Export AdministrationAct and its associated regulations, and may be subject to export or importregulations in other countries. Insignia agrees to comply strictly with all such regulations andacknowledges that Insignia has the responsibility to obtain licenses to export,re-export, or import Software. Software may not be downloaded, or otherwiseexported or re-exported (i) into, or to a national or resident of, Cuba, Iraq,Iran, North Korea, Libya, Sudan, Syria or any country to which the U.S. hasembargoed goods; or (ii) to anyone on the U.S. Treasury Department's list ofSpecially Designated Nations or the U.S. Commerce Department's Table of DenialOrders.

 

c.             Restricted Rights.  Use, duplication or disclosure by the UnitedStates government is subject to the restrictions as set forth in the Rights inTechnical Data and Computer Software Clauses in DFARS 252.227- 7013(c) (1) (ii)and FAR 52.227-19(c) (2) as applicable. 

 

6. Modifiable Part.  It is Sun's goal to reduce the amount ofcode classified as non-modifiable (or words of similar meaning e.g."Shared Part").  For any givenrelease of an implementation of a Java Environment: a) Sun shall notre-classify portions of code to be non-modifiable, and b) Sun shall notincrease the amount of non-modifiable code within a particular implementationafter Sun has made it generally commercially available.

 

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*Certain information on this page has been omitted and filed separatelywith the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omittedportions.

7. Change ofControl.  Section 11.13 of the Agreementshall be deleted in its entirety and replaced with the following:

Insignia may not assignor otherwise transfer the Agreement without Sun's written consent which shallnot be unreasonably withheld.

 

8. Term andTermination.   Section 10.1 of theAgreement is deleted in its entirety and replaced with the following:

10.1The Term of this Agreement shall begin on theEffective Date and shall continue up to and including June 30, 2004, or untilterminated as provided below. Termination is permitted either for breach ofthis Agreement, upon sixty (60) days written notice to the other party and anopportunity to cure within such sixty (60) day period (unless the breachingparty is making reasonable progress toward such a cure, in which case the cureperiod may be extended by mutual agreement of the parties), or upon any actionby Insignia alleging that use or distribution of the Java Environments by Sunor any Sun Licensees of the Java Environments, infringes a copyright or patentof Insignia..  In addition to thetermination rights provided above, in the event that Insignia fails to keep theterms of the amended Agreement confidential (except as specifically excepted insections 7.3.1 and 7.3.3 of the Agreement, as amended below), Sun mayimmediately terminate the amended Agreement, whereupon, Section 10.4 (Effect ofTermination) shall apply.

 

Section 10.2 is hereby deleted in its entirety and replacedwith the following:

10.2Withrespect to eJava and PJava only, this Agreement shall automatically renew foran additional three year term. Royalties due to Sun during this renewal period shall be at the ratesspecfied in the Agreement prior to this Amendment 3, unless Insignia pays Sun aprepayment of [******] on or before July 1, 2004, whereupon royalties shall be [******]/unitfor PJava Based Insignia Products and [******]/unit for eJava Based InsigniaProducts.

 

9. Confidentiality.  Section 7 of the Agreement shall be amendedby adding the following new section 7.3:

                7.3           LimitedDisclosure.

7.3.1        Conditionsfor Limited Disclosure.  In the eventthat Insignia desires to disclose  theterms and conditions of the Agreement to a party for the purposes of acquiringany or all of the assets of Insignia ("potential acquiror"), Insigniamay disclose the terms of the Agreement to such potential acquiror (includingagents acting on its behalf for the purpose of the proposed acquisition) if allof the following conditions are met:

                a)             The potential acquiror has signed awritten letter of intent or memorandum of understanding with Insignia statingthe party's bona fide intent to purchase the assets of Insignia, AND

                b)             If the potential acquiror is adirect hardware or software competitor of Sun, Sun has given its writtenconsent permitting disclosure under this section to such potential acquiror,AND

                c)             The potential acquiror has signed awritten non-disclosure agreement with Insignia expressly naming Sun as anintended third party beneficiary of the obligations set forth therein andcontaining, at a minimum, the following terms: i) The potential acquiror's useof any knowledge concerning the terms of the Agreement is restricted to thesole and limited purpose of evaluating its proposed acquisition, and ii) thepotential purchaser is required to review the terms of the Agreement atInsignia premises only, and iii) the potential acquiror is prohibited frommaking or possessing a tangible record or copy of the Agreement or any portionsthereof, AND

d)             Anyagents of the potential purchaser to whom potential purchaser desires to havethe terms of the Agreement disclosed, have also signed a written non-disclosureagreement with Insignia consistent with and no less restrictive than theobligations set forth in 7.3.1 a) through c), above.

 

                7.3.2        Breach.Insignia's breach of the conditions stated above, or any disclosure orunauthorized use of any material knowledge concerning the terms of theAgreement by a potential acquiror or its agents shall be deemed a breach ofconfidentiality for which the Agreement may be terminated pursuant to section10.1.

 

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*Certain information on this page has been omitted and filed separatelywith the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

7.3.3        Both parties acknowledge that Insigniais permitted to disclose the terms of this amendment to its attorneys,accountants, underwriters, tax authorities or other third parties who have aneed to know.  Such parties' disclosureor misuse of material information shall be deemed a breach by Insignia forwhich the Agreement may be immediately terminated pursuant to section10.1.  

 

                Insigniamay disclose those terms as required by law, upon the condition that Insigniafirst gives Sun reasonable prior notice sufficient to permit Sun to seekappropriate relief limiting such disclosure. Insignia shall provide all reasonable assistance to Sun in obtaining therelief sought. 

                Insigniamay also disclose those terms of the agreement required for financial reportingpurposes to the minimum extent required by Generally Accepted AcccountingPrinciples (GAAP). 

                Fordisclosure of this Agreement as may be required for Securities and ExchangeCommission (S.E.C.) reporting purposes, Sun shall be provided with a reasonableopportunity to request that Insignia seek confidential treatment by the S.E.C.of certain portions of this Agreement (including, but not limited to pricingterms as provided in section 3.2) and Sun may provide whatever input andassistance to Insignia that Sun deems appropriate. Insignia will makereasonable commercial efforts to honor Sun's requests and give carefulconsideration to any input or assistance provided. However, the form andsubstance of Insignia's disclosures for S.E.C. Purposes shall be to the extentas required by the S.E.C. and in no event will Sun prevent Insignia from timelyfiling its S.E.C. Reports or related filings. In the event that, despiteInsignia's best efforts to achieve confidential treatment of certain terms ofthis Agreement (including but not limited to pricing terms as provided insection 3.2), such terms are required by the S.E.C. to be disclosed in anS.E.C. report or other related filing, both parties agree that such disclosureshall not result in termination of this Agreement.

 

IN WITNESS WHEREOF, theparties have caused this Amendment 3 to the Agreement to be executed by theirduly authorized representatives.

 

AGREED TO AND ACCEPTED BY:

 
| Insignia |        | Sun Microsystems, Inc. |
|----------|-------------|------------------------|
|     |        |                   |   |   |
| By:      | /s/ Al Wood |                   | By: | /s/Sheila Kerr |
|     |        |                   |   |   |
| Title    | CFO         |                   | Title: | Manager, STSOperations |
|     |        |                   |   |   |
| Date:    | 9/28/01     |                   | Date: | 9/28/01 |

 

**EXHIBIT C-4:**

**Java 2Platform, Micro Edition**

**ConnectedDevice Configuration ("CDC") and Foundation Profile ("FP")**

** (CDC/FP CHNLS)**

 

**I.Description of Technology and Documentation.**

 

**a.            Description of Technology**

** **

**i.              Source Code. **The Sun Source Code formof CDC and FP  for the version that iscurrent as of the date of execution of this Amendment 3, and Sun Upgradesthereto as provided by Sun pursuant to a valid Master Support Agreement are asdescribed on the technology download site designated by Sun for use by validSun CDC/FP Licensees.****

**ii.            Modifiable Part.**   

                Allof the source files, in any programming language (eg. Java, C, C++),implementing the Java 2 Micro Edition Connected Device Configuration andFoundation Profile for the version that is current as of the date of executionof this Amendment 3, are non-modifiable except for the following, whichconstitute Modifiable Part:

 

aa) allsource files implementing the following packages:

 

java.lang

java.lang.reflect

java.io

java.net

java.util

java.util.zip

 

as well asthe source files implementing the sun.* packages associated with 

the abovepackages;

 

bb) allsource files implementing the Java virtual machine, with the

exception ofthe source files implementing the class file parser

and bytecodeverifier;

 

cc)the source files implementing the Platform Dependent Part.

** **

**b.             Sun Documentation.**

                J2ME CDC Specification

                J2ME Foundation Profile Specification

                J2ME CDC and Foundation Profile Porting Guide

                J2ME CDC and Foundation Profile Release Notes

 

**II.Schedule of Fees and Royalties.**

** **

**a.Annual Support and Upgrade Fees: **Asset forth in a separate support agreement.

** **

**b.Binary and Source Distribution Royalties**

** **

Royaltyper Unit or Per Concurrent User of Insignia Products. Insignia must pay aroyalty to Sun as provided above for each copy of Insignia Product distributed,including for each Insignia Licensee Product distributed or deployed by or forany Insignia Licensee.

 

** **

**III.Compatibility Requirements.**

 

a.             Insignia Products and Insignia Licensee Products mustfully comply with the requirements of the Sun Documentation specified inSection I(b), above, and pass the TCK for CDC and including any Profiles,pursuant to the requirements of Sections 2.11 of the Agreement. (For purposesof this Exhibit C-4, "Profile" means the Foundation Profile, PersonalProfile or such other profile as may be developed under or in connection withthe Java Community Process or as otherwise authorized by Sun.  Successful compatibility testing must becompleted in accordance with the CTS User's Guide for CDC and FP. Insignia mayself-certify such compatibility, provided that Sun may require that Insigniasubmit specific test documentation to an independent third party audit facilitydesignated by Sun, for verification of proper compatibility testing, prior toFCS of any Insignia Product. [******] All reasonable expenses of such auditshall be paid by Insignia, [******]. Sun may publish or otherwise distribute such test results.

 

b.             Notwithstanding any provision to the contrary in theAgreement, access to the TCK for CDC and FP Java Environments is subject to aseparate agreement, including, but not limited to, an additional fee for TCK support.  Insignia is not authorized to createmodifications or derivative works of the TCK, and may only utilize the TCK toverify compatibility of CDC/FP-Based Insignia Products with the specificationfor the CDC/FP Java Environments. Insignia may not publish test results or make claims of comparativecompatibility. (This is not intended to prohibit Insignia from making truestatements to the effect that its product(s) has passed the TCK, and that theproduct of another  has not passed theTCK.)  Insignia agrees not to developany other test suites intended to validate compatibility with the specificationfor the CDC/FP Technology.   (This isnot intended to preclude Insignia from developing tests which are used onlyinternally and only for purposes of ensuring Insignia product quality.) Insigniamay, pursuant to a valid Java Specification Participation Agreement and theJava Community Process, participate in the development of test suites intendedto validate compatibility with the Java specification. In the event that theJava Community Process provides for an alternative method by which JavaCommunity Members may participate in the development of test suites intended tovalidate compatibility with the Java specification (i.e. A means other than viathe Java Specification Participation Agreement), Insignia may, pursuant to therules and requirements of the Java Community Process, so participate in thedevelopment of test suites intended to validate compatibility with the Javaspecification. Insignia agrees that it has not and will not in the futuredevelop test suites that may be or are intended to be used as an alternative toany test suites developed through the Java Community Process. 

 

c.             CDC/FP-BasedInsignia Products shall not include an implementation of any part of a Profileor use any of the APIs within a Profile, unless Insignia implements the Profilein its entirety in conformance with the applicable compatibility requirementsand test suites as developed and licensed by Sun or other authorized party.  

 

d.            Profile(s) must be tightly integratedwith, and must be configured to run in conjunction with, Insignia'simplementation of the JavaTM 2 Platform, Micro Edition,Connected Device Configuration from Sun (or an authorized third party) whichmeets Sun's compatibility requirements ("CDC").

 

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**EXHIBITC-5: **

**Java 2Platform, Micro Edition**

**ConnectedLimited Device Configuration**

**(CLDCCHNLS)**

 

**I.Description of Technology and Documentation.**

 

**a.Description of Technology**

 

**                i.              Sun Source Code. **The Sun Source Code of the CLDC for the version thatis current as of the date of execution of this Amendment 3, and Sun Upgradesthereto as provided by Sun pursuant to a valid Master Support Agreementare  as described on the technologydownload site designated by Sun for use by valid Sun CLDC Licensees.

                                

**ii.            Modifiable Part.**   

                All of the source filesimplementing the version of the Java 2 Micro Edition Connected Limited DeviceConfiguration that is current as of execution of this Amendment 3 constituteModifiable Part, except for the verifier.c file which implements the run-timetype checker.

 

**b.             Sun Documentation.**

-  Java 2 Platform, Micro Edition ConnectedLimited Device Configuration OEM Specification and related API specifications.

-  KVM Porting Guide.

-  Release Notes.

-  Java 2 Platform, Micro Edition ConnectedLimited Device Configuration Compatibility Test Suite User's Guide.

 

**II.Schedule of Fees and Royalties.**

** **

**a.Annual Support and Upgrade Fees: **Asset forth in a separate support agreement.

** **

**b.Binary and Source Distribution Royalties**

 

Insigniamust pay a royalty to Sun as provided above for each copy of Insignia Productdistributed, including for each Insignia Licensee Product distributed ordeployed by or for any Insignia Licensee. For Insignia Products incorporatingor implementing the combined stack of CLDC and MIDP, prices shall be as setforth above.

 

For  Insignia Products incorporating orimplementing CLDC but which are not integrated with a Profile, prices shall beas agreed to in writing, by the parties. For purposes of this Exhibit, "Profile"means the Mobile Information Device Profile or such other profile as may bedeveloped under or in connection with the Java Community Process or asotherwise authorized by Sun. Insignia may not distribute Insignia Productsincorporating or implementing CLDC which are not integrated with a Profile,prior to having a fully executed written agreement as to the price, unlessotherwise authorized in writing, by Sun.

 

**III.Compatibility Requirements.**

 

a.             Insignia Products and Insignia Licensee Products mustfully comply with the requirements of the Sun Documentation specified inSection I(b), above, and pass the TCK for the CLDC Java Environment andincluding any Profiles, pursuant to the requirements of Sections 2.11 of theAgreement.  Successful compatibilitytesting must be completed in accordance with the CTS User's Guide for CLDC.Licensee may self-certify such compatibility, provided that Sun may requirethat Licensee submit specific test documentation to an independent third partyaudit facility designated by Sun, for verification of proper compatibilitytesting, prior to FCS of any CLDC-Based Insignia Product. "CLDC-BasedInsignia Product(s)" means an Insignia Product into which the CLDC JavaEnvironment is incorporated or implemented. [******].  All reasonable expenses of such audit shall be paid by Insignia,[******].  Sun may publish or otherwisedistribute such test results.

 

b.             Notwithstanding any provision to the contrary in theAgreement, access to the TCK for the CLDC Java Environment is subject to a separateagreement, including, but not limited to, an additional fee for TCKsupport.  Insignia is not authorized tocreate modifications or derivative works of the TCK, and may only utilize theTCK to verify compatibility of CLDC-Based Products with the specification forthe CLDC Technology.  Insignia may notpublish test results or make claims of comparative compatibility. (This is notintended to prohibit Insignia from making true statements to the effect thatits product(s) has passed the TCK, and that the product of another  has not passed the TCK.)  Insignia agrees not to develop any othertest suites intended to validate compatibility with the specification for theCLDC Java Environment.  (This is notintended to preclude Insignia from developing tests which are used onlyinternally and only for purposes of ensuring Insignia product quality.) Insigniamay, pursuant to a valid Java Specification Participation Agreement and theJava Community Process, participate in the development of test suites intendedto validate compatibility with the Java specification.  In the event that the Java Community Processprovides for an alternative method by which Java Community Members mayparticipate in the development of test suites intended to validatecompatibility with the Java specification (i.e. A means other than via the JavaSpecification Participation Agreement), Insignia may, pursuant to the rules andrequirements of the Java Community Process, so participate in the developmentof test suites intended to validate compatibility with the Java specification. Insigniaagrees that it has not and will not in the future develop test suites that maybe or are intended to be used as an alternative to any test suites developedthrough the Java Community Process.

 

c.             CLDCBased Insignia Products shall not include an implementation of any part of aProfile or use any of the APIs within a Profile, unless Insignia implements theProfile in its entirety in conformance with the applicable compatibilityrequirements and test suites as developed and licensed by Sun or otherauthorized party.  

 

----

*Certain information on this page has been omittedand filed separately with the Securities and Exchange Commission.  Confidential treatment has been requestedwith respect to the omitted portions.

**EXHIBITC-6:**

**Java 2Platform, Micro Edition**

**MobileInformation Device Profile**

**(MIDPCHNLS)**

** **

**I.Description of Technology and Documentation.**

 

**a.  Description of Technology**

** **

**i.              Sun Source Code. **The Sun Source Code of theMIDP for the version that is current as of the date of execution of thisAmendment 3, and Sun Upgrades thereto as provided by Sun pursuant to a validMaster Support Agreement are  asdescribed on the technology download site designated by Sun for use by validSun MIDP Licensees.

 

**ii.  Modifiable Part.**   

                All of the source filesimplementing the version of Java 2 Micro Edition, Mobile Information DeviceProfile that is current as of the date of execution of this Amendment 3consitute Modifiable Part. 

 

**b.             Sun Documentation.**

                Java 2 Platform,Micro Edition Mobile Information Device Profile Specification and related APIspecifications.

                Release Notes.

                Java 2 Platform, Micro EditionMobile Information Device Profile Compatibility Test Suite User’s Guide.

 

**II.Schedule of Fees and Royalties.**

** **

**a.Annual Support and Upgrade Fees: **Asset forth in a separate support agreement.

** **

**b.Prepayment and Royalty**per Unit or Per Concurrent User ofInsignia Products incorporating MIDP integrated with CLDC**:**

 

Insigniamust pay a royalty to Sun as provided above for each copy of Insignia Productdistributed, including for each Insignia Licensee Product distributed or deployed by or for any InsigniaLicensee. . 

 

Fieldof Use: Insignia may, in accordance herewith, only distribute directly toInsignia Licensees  Insignia Product(s)for use in mobile wireless devices. Insignia is authorized to distributeInsignia Products implementing the Sun Specifications for MIDP only whenintegrated with a Configuration. For purposes of this Exhibit, "Configuration"means Insignia's implementation of the Java 2 Platform, Micro Edition,Connected Limited Device Configuration that meets Sun's compatibilityrequirements,

 

**III.Compatibility Requirements.**

 

a.             Insignia Products and Insignia Licensee Products mustfully comply with the requirements of the Documentation specified in SectionI(b), above, and pass the TCKs for the CLDC Java Environment and MIDP JavaEnvironment, pursuant to the requirements of Section 2.11 of theAgreement.  MIDP Java Environment asintegrated with CLDC Environment must pass the TCK for MIDP.  Successful compatibility testing must becompleted in accordance with the CTS User's Guide described in Section I(b),above.  Insignia may self-certify suchcompatibility, provided that Sun may require that Insignia submit specific testdocumentation to an independent third party audit facility designated by Sun,for verification of proper compatibility testing, prior to FCS of any InsigniaProduct. [******] All reasonable expenses of such audit shall be paid byInsignia, [******].  Sun may publish orotherwise distribute such test results.

 

----

*Certaininformation on this page has been omitted and filed separately with theSecurities and Exchange Commission. Confidential treatment has been requested with respect to the omittedportions.

b.             Notwithstanding any provision to the contrary in theAgreement, access to the TCK for MIDP Java Environment is subject to a separateagreement, including, but not limited to, an additional fee for TCKsupport.  Insignia is not authorized tocreate modifications or derivative works of the TCK, and may only utilize theTCK to verify compatibility of CLDC/MIDP-Based Insignia Products with thespecification for the MIDP Technology. "CLDC/MIDP-Based InsigniaProduct(s)" means an Insignia Product into which the CLDC and MIDP JavaEnvironments are incorporated or implemented. Insignia may not publish testresults or make claims of comparative compatibility. (This is not intended toprohibit Insignia from making true statements to the effect that its product(s)has passed the TCK, and that the product of another has not passed theTCK.)  Insignia agrees not to developany other test suites intended to validate compatibility with the specificationfor the MIDP Technology.  (This is notintended to preclude Insignia from developing tests which are used onlyinternally and only for purposes of ensuring Insignia product quality.) Insigniamay, pursuant to a valid Java Specification Participation Agreement and theJava Community Process, participate in the development of test suites intendedto validate compatibility with the Java specification.  In the event that the Java Community Processprovides for an alternative method by which Java Community Members mayparticipate in the development of test suites intended to validatecompatibility with the Java specification (i.e. A means other than via the JavaSpecification Participation Agreement), Insignia may, pursuant to the rules andrequirements of the Java Community Process, so participate in the developmentof test suites intended to validate compatibility with the Java specification. Insigniaagrees that it has not and will not in the future develop test suites that maybe or are intended to be used as an alternative to any test suites developedthrough the Java Community Process.

 

c.             The MIDP Java Environment must be tightly integratedwith, and must be configured to run in conjunction with, Insignia'simplementation of the Java 2 Platform, Micro Edition Connected Limited DeviceConfiguration which meets Sun's compatibility requirements.

** **

**EXHIBITC-7:**

**Java TVTechnology**

**(JAVA TVCHNLS)**

** **

** **

 

**I.Description of Technology and Documentation.**

 

**a.              Description of Technology**

** **

**i.              Sun Source Code. **The Sun Source Code ofJava TV for the version that is current as of the date of execution of thisAmendment 3, and Sun Upgrades thereto as provided by Sun pursuant to a validMaster Support Agreement are as described on the technology download sitedesignated by Sun for use by valid Sun Java TV Licensees.

 

**ii.            Modifiable Part.**   

                All of the source filesimplementing the version of the Java TV Technology that is current as of thedate of execution of this Amendment 3 consitute Modifiable Part. 

 

**b.             Sun Documentation.**

Java TV Specification

White Paper 

Porting Guide

XML Syntax Description

SampleCode

 

**II.Schedule of Fees and Royalties.**

** **

**a.Annual Support and Upgrade Fees: **Asset forth in a separate support agreement.

** **

**b. Royalty per Unit or Per Concurrent User**.

 

Insigniamust pay a royalty to Sun as provided above for each copy of Insignia Productdistributed, including for each Insignia Licensee Product distributed or deployed by or for any InsigniaLicensee. 

 

Fieldof Use:  Insignia may, in accordanceherewith, distribute to Insignia Licensees Insignia's JavaTV products for usein television set-top boxes  or othersimilar devices receiving television content. 

 

**III.Compatibility Requirements.**

 

a.             Insignia Products and Insignia Licensee Products mustfully comply with the requirements of the Sun Documentation specified inSection I(b), above, and pass the TCKs for the Java TV Java Environment andPersonal Java Java Environment, pursuant to the requirements of Section 2.11 ofthe Agreement. The Java TV Environment, as integrated with an implementation ofPersonalJava technology in compliance with a pJava license between Insignia andSun, must pass the TCK for the Java TV Java Environment. Successfulcompatibility testing must be completed in accordance with the CTS User's Guidedescribed in Section I(b), above. Insignia may self-certify such compatibility, provided that Sun mayrequire that Insignia submit specific test documentation to an independentthird party audit facility designated by Sun, for verification of propercompatibility testing, prior to FCS of any Insignia Product. [******] Allreasonable expenses of such audit shall be paid by Insignia, [******].  Sun may publish or otherwise distribute suchtest results.

 

----

*Certaininformation on this page has been omitted and filed separately with theSecurities and Exchange Commission. Confidential treatment has been requested with respect to the omittedportions.

b.             Notwithstanding any provision to the contrary in theAgreement, access to the TCK for the Java TV Java Environment is subject to aseparate agreement, including, but not limited to, an additional fee for TCKsupport.  Insignia is not authorized tocreate modifications or derivative works of the TCK, and may only utilize theTCK to verify compatibility of Java TV/pJava-Based Insignia Products with thespecification for the Java TV Java Environment. "TV/pJava-Based InsigniaProducts" means an Insignia Product into which the Java TV and pJava JavaEnvironments are incorporated or implemented. Insignia may not publish testresults or make claims of comparative compatibility. (This is not intended toprohibit Insignia from making true statements to the effect that its product(s)has passed the TCK, and that the product of another  has not passed the TCK.) Insignia agrees not to develop any other test suites intended tovalidate compatibility with the specification for the Java TV and pJava JavaEnvironments.  (This is not intended topreclude Insignia from developing tests which are used only internally and onlyfor purposes of ensuring Insignia product quality.) Insignia may, pursuant to avalid Java Specification Participation Agreement and the Java CommunityProcess, participate in the development of test suites intended to validatecompatibility with the Java specification. In the event that the Java Community Process provides for an alternativemethod by which Java Community Members may participate in the development oftest suites intended to validate compatibility with the Java specification(i.e. A means other than via the Java Specification Participation Agreement),Insignia may, pursuant to the rules and requirements of the Java CommunityProcess, so participate in the development of test suites intended to validatecompatibility with the Java specification. Insignia agrees that it has not andwill not in the future develop test suites that may be or are intended to beused as an alternative to any test suites developed through the Java CommunityProcess.

 

c.             Insignia Products incorporating orimplementing the Java TV Java Environment must be tightly integrated andconfigured to run in conjunction with Insignia's implementation of the PersonalJava Environment and which meets the requirements of the Agreement, includingwithout limitation, the compatibility requirements.

 

**EXHIBITF-1**

**TO THETECHNOLOGY LICENSE AND DISTRIBUTION AGREEMENT**

** **

**PROFORMA OEM TRADEMARK LICENSE**

 

ThisOEM Trademark License (the "OEM License") is entered into this_______ day of ______________, 200_ (the "Effective Date") betweenSun Microsystems, Inc., with its principal place of business at 901 San AntonioRoad, Palo Alto, California 94303 (“Sun”) and _________________________, a_____________ corporation with a principal place of business at_________________________ ("OEM Licensee").

 

Whereas,Sun and Insignia Solutions ("TLDA Licensee") entered into aTechnology License and Distribution Agreement, ("TLDA") whichprovided to TLDA Licensee in part, the right to produce a product or productsincorporating certain Java technology (the "Product"); 

 

Whereas,TLDA Licensee has represented to Sun and OEM Licensee that the Product has metall of the compatibility requirements of the SCSL and that the TLDA Licensee isentitled pursuant to the terms of the SCSL to use Sun's Compatibility Logo(s)as defined below; 

 

Whereas,TLDA Licensee and OEM Licensee have entered into an OEM agreement in which OEMLicensee was given the right to incorporate TLDA Licensee's Products into OEMLicensee's product; and

 

Whereas,OEM Licensee desires to include Sun's Compatibility Logo(s) on such OEMLicensee's products.

 

NOWTHEREFORE, Sun and OEM Licensee enter into this OEM License on the followingterms.

 

**1.0          DEFINITIONS.**

 

1.1           "Compatibility Logo(s)"means the particular Sun Trademark(s) specified in Exhibit A hereto to be usedby OEM Licensee to indicate that OEM Products implementing the Java technologymeet the applicable compatibility requirements. Sun shall provide OEM Licenseeaccess to the Compatibility Logo(s) and instructions for use via Sun'sdesignated web site upon execution of this OEM License. Sun may revise theCompatibility Logo(s) from time to time during the Term.

 

1.2           "FCS" means a firstcommercial shipment of a production version of a software or hardware productor technology. 

 

1.3           "Java Test Suite" meansspecific test suites which verify compatibility with the applicable Javatechnology specifications.

 

1.4           "Java Trademark Guidelines"means the graphics standards and usage guidelines provided by Sun together withthe then-current Sun Trademark and Logo Usage Requirements (currently locatedat http://www.sun.com./policies/trademarks.html), as may be revised by Sunduring the Term, and which are incorporated by reference into this License.

 

1.5           "OEM Product" means aproduct of OEM Licensee which incorporates a TLDA Licensee Product whichconstitutes a fully compatible implementation of the Java technology licensedfrom Sun by the TLDA Licensee.

 

1.6           "Sun Trademarks" meansSun's SUN, JAVA, and JINI trademarks and logos, including without limitationJAVA, JAVA COMPATIBLE, the Java Compatible logo, JAVA POWERED, the Java Poweredlogo, the Coffee Cup logo, and the Compatibility Logo(s), whether now in use oradopted in the future.

 

1.7           "Term" means the term ofthis OEM License as specified in Section 6.1.

 

**2.0          TRADEMARKS.**

 

2.1           Grant to OEM Licensee. 

 

                a.             Grant.  Subject to all the restrictions set forth inthis OEM License, Sun grants to OEM Licensee a worldwide, non-exclusive,non-transferable license to use the Compatibility Logo(s) only in connectionwith the marketing, advertising, distribution and sale of each OEM Product thatfully meets the requirements of Section 2.6 below. 

 

                b.             No OtherRights.  OEM Licensee is granted noother right, title, interest or license to the Compatibility Logo(s) or anyother Sun Trademarks for any purpose, and is specifically granted no right tosublicense the Compatibility Logo(s) or any other Sun Trademarks.

 

                c.             No Limitation onUse.  Subject only to the rightsspecifically granted to OEM Licensee hereunder, nothing contained in this OEMLicense shall be construed to limit or restrict, in any way or manner any rightof Sun to encumber, transfer, license, access, reference or practice any SunTrademark in any way for any purpose or use, including without limitation,Sun’s use, licensing and/or registration of Sun Trademarks anywhere in theworld for any purpose.

 

                d.             Amendment/Replacementof Compatibility Logo(s).  Sun reservesthe right to amend the Compatibility Logo(s) or to replace them with differentlogos.  Upon notice from Sun, OEMLicensee shall cease use of the amended or replaced Compatibility Logo(s) asquickly as reasonably possible on OEM Product and all material associated withOEM Product.  In addition, OEM Licenseeshall not affix the amended or replaced Compatibility Logo(s) to new OEMProduct not yet being manufactured, or to materials associated with such newOEM Product, but instead shall use the replacement/amended logo(s) supplied bySun.

 

2.2           Territory Reduction. Sun may modifythe license grant specified in Section 2.1 above to eliminate any jurisdictionfrom this OEM License if Sun determines, in its sole judgment, that use orcontinued use of the Compatibility Logo(s) in such country or jurisdiction maysubject Sun or any third party to legal liability, or may jeopardize Sun'srights in the Compatibility Logo(s) or any other Sun Trademark in that or anyother jurisdiction.  In such event, asquickly as possibly but in no event later than sixty (60) calendar days afterreceipt of written notice from Sun, or such earlier date as required by courtor judicial order, OEM Licensee shall cease all use of the Java Logo(s) in suchjurisdiction.

 

2.3           Recordal Notice. OEM Licensee shalluse commercially reasonable efforts to provide Sun with written notice prior toshipping any OEM Product into or using the Compatibility Logo(s) in one of thefollowing countries: Israel, South Korea, Liberia, the People's Republic ofChina and the Republic of China (Taiwan); but in no event later than twentydays after actual shipment of the OEM Product into such countries. Sun mayamend this list of countries at any time by written notice to OEM Licensee.

 

2.4           Ownership of Sun Trademarks. OEMLicensee acknowledges and agrees that Sun is the sole owner worldwide of theSun Trademarks and all associated goodwill. OEM Licensee shall not (a)challenge Sun's ownership or use of Sun Trademarks; (b) attempt to register anySun Trademarks, or any mark or logo substantially similar thereto; (c) remove,alter, or add to any Sun Trademarks; (d) co-brand or co-logo its products withany Sun Trademarks; or (e) incorporate any Sun Trademarks into OEM Licensee'strademarks, product names, service marks, company names, domain names, or anyother similar designations. If at any time, OEM Licensee acquires any rightsin, or trademark registrations or applications for, the Compatibility Logo(s)or any other Sun Trademarks by operation of law or otherwise in anyjurisdiction, OEM Licensee will immediately upon request by Sun and at noexpense to Sun, assign such rights, registrations, or applications to Sun,along with any and all associated goodwill. OEM Licensee’s use of the Compatibility Logo(s) inures solely to Sun’sbenefit.

 

2.5           Further Assurances.   OEM Licensee shall assist Sun to the extentreasonably necessary to protect and maintain the Compatibility Logo(s)worldwide, including, but not limited to, giving prompt notice to Sun of anyknown or potential infringement of the Compatibility Logo(s), gathering andsubmitting evidence of use of the Compatibility Logo(s), and cooperating withSun in preparing and executing any documents necessary to register theCompatibility Logo(s) or to record this trademark license, or any otherdocument concerning the license grant, as may be required by the laws or rulesof any country or jurisdiction. In its sole discretion, Sun may commence,prosecute or defend any action or claim concerning the Compatibility Logo(s).Sun shall have the right to control any such litigation, and OEM Licensee shallfully cooperate with Sun in any such litigation, including the satisfaction ofprocedural requirements necessary to bring such litigation in a particularcountry or jurisdiction. Sun shall reimburse OEM Licensee for the reasonablecosts associated with providing such assistance, except to the extent that anysuch costs result from OEM Licensee’s breach of this License. OEM Licenseeshall not commence any action regarding the Compatibility Logo(s), withoutSun’s prior written consent which Sun may withhold in its sole discretion.

 

2.6           Quality Standards.

 

                a.             Certification and Audit. This OEM License applies only toversions of OEM Products which (i) incorporate TLDA Licensee Products that havesuccessfully passed the applicable Java Test Suite and meet all of thecompatibility requirements of the TLDA and (ii) continue to pass any suchapplicable Java Test Suites. 

 

                b.             Prior to distribution of any OEM Product bearing theCompatibility Logo, for the purpose of verifying compatibility with theapplicable Java technology specifications, Sun, at its option may either (i)deliver the Java Test Suite to OEM Licensee for testing of OEM Products; (ii)test the OEM Products utilizing the Java Test Suite at a designated Sunfacility; (iii) require OEM Licensee to submit the OEM Products to TLDALicensee, (iv) require OEM Licensee to submit the OEM Products to a third partytest house authorized by Sun, or (v) require the OEM Licensee to submitspecific test documentation demonstrating the results of the Java Test Suitefor the OEM Product to an independent third party audit facility designated bySun.  OEM Licensee shall keep writtenrecords of any such compatibility testing including without limitation resultsof such compatibility testing, for the term of this OEM License plus two (2) yearsthereafter, and make such records available to Sun promptly upon writtenrequest. 

 

                c.             Upon thirty (30) days written notice by Sun no more thantwo (2) times per calendar year, OEM Licensee shall permit Sun or itsauthorized representative to inspect and test at Sun's facilities, any OEMProduct with which the Compatibility Logo is used to ensure that such OEMProduct continues to pass the applicable Java Test Suite and continues to meetthe quality standards specified in Section 2.6.b below.

 

                d.             OEM Licensee shall give prompt written notice to Sun ofany complaint or other indication by any customer or other third party that anyOEM Product bearing a Compatibility Logo does not pass the applicable Java TestSuite or any other requirement of this OEM License.  

 

                e.             Reputation and Industry Standards. In addition to theother quality requirements set forth in this Section 2.6, OEM Licensee shallmaintain the quality of the OEM Product or service on or in connection withwhich it uses the Compatibility Logo(s) in a manner consistent with all terms,conditions and requirements set forth in this OEM License and at a level thatmeets or exceeds OEM Licensee's overall reputation for quality and that is atleast commensurate with industry standards. All OEM Product shall comply with all local and government regulationsand requirements of the country or jurisdiction into which such OEM Product issold.

 

2.7           Compatibility Logo Usage, Location andAttribution.

 

                a.             OEM Licensee must use the Compatibility Logo(s) only inthe exact form of approved camera-ready artwork or electronic artwork receivedfrom Sun or Sun's designee. 

 

                b.             OEM Licensee's use of the Compatibility Logos and allother Sun Trademarks shall comply with the then current Java Trademark Guidelines,which Sun may modify from time to time. 

 

                c.             Wherever OEM Licensee displays a Compatibility Logo, itmust also display its own corporate name and logo, and shall display theCompatibility Logo (i) in a size and style less prominent than, and separatelyfrom any of, OEM Licensee's own names, marks or logos, (ii) separately from anyother name, mark or logo, (iii) accompanied by a TM symbol,  and (iv) when using the Compatibility Logo,in such a manner that it is clear that the Compatibility Logo refers only tothe specific OEM Product which has passed the applicable Java Test Suite andnot any other product of OEM Licensee or any third party.  Specifically, when the OEM Product withwhich the Compatibility Logo is used is bundled with other OEM Licensee orthird-party products that do not pass the applicable Java Test Suite, OEMLicensee shall always display the Compatibility Logo in such a manner that itis clear, in Sun's sole discretion, that the Compatibility Logo refers only toOEM Product (that has passed the Java Test Suite) and not to any product in thebundle which has not passed the Java Test Suite. In no event can OEM Licenseeuse the Compatibility Logo with an OEM Product that includes or is used,marketed or distributed in connection with an implementation of a Javaspecification if such implementation has not passed Sun's Java Test Suites incompliance with Sun's compatibility requirements.

 

                d.             OEM Licensee shall display theCompatibility Logo(s): (i) for tangible OEM Product media: on external OEMProduct packaging, on the accompanying documentation and the media containingthe OEM Product (disk, CD-ROM, tape, etc.); (ii) for on-line versions of theOEM Product: on web pages featuring information about the OEM Product in GIFimages that point to the current Sun page on Java Technologies  (http://java.sun.com) via hypertext link;(iii) for both tangible media and on-line versions of the OEM Product, onsplash screens appearing upon launch of the OEM Product and in general OEMProduct information screens (e.g., "About", "Help","Info");  (iv) on tangiblemarketing collateral featuring the OEM Product, including advertisements anddatasheets and (v) for OEM Products which are hardware devices, on the externalsurface of the device itself, on the external surface of the product packagingfor the device so that the Compatibility Logo may be seen on the package priorto purchase by an end user, on splash screens appearing upon launch of thedevice as well as upon launch of the Java Virtual Machine, on the accompanyingdocumentation and in general OEM Product information screens (e.g.,"About", "Help", "Info").

 

                e.             OEM Licensee may begin use of the Compatibility Logo(s)in advance of FCS of an OEM Product to begin production packaging and preparation,however OEM Licensee may not distribute OEM Product with the CompatibilityLogo(s) without otherwise complying with the terms of this OEM License,including but not limited to, the quality requirements set forth in Section 2.6above.

 

                f.              OEM Licensee shall legibly display the followingtrademark legend on all materials in or on which OEM Licensee displays theCompatibility Logo:

 

                "Java and all Java-basedtrademarks and logos are trademarks or registered trademarks of SunMicrosystems, Inc. in the U.S. and other countries."

 

                g.             Upon writtennotice by Sun, OEM Licensee shall, within thirty (30) calendar days, rectifyany non-compliance of the OEM Product and associated materials with therequirements in this Section 2.7 and give written notice to Sun of the specificmodifications or steps taken to ensure compliance.

 

**3.0          DISCLAIMER OF WARRANTY**.   Sun licenses the Compatibility Logo(s) toOEM Licensee on an "AS IS" basis. SUN MAKES NO WARRANTIES OF ANY KINDRESPECTING THE COMPATIBILITY LOGO(S), INCLUDING THE VALIDITY OF SUN'S RIGHTS INTHE COMPATIBILITY LOGO(S) IN ANY COUNTRY OR JURISDICTION, AND ALLREPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THECOMPATIBILITY LOGO(S) ARE HEREBY DISCLAIMED.

 

**4.0          LIMITEDINDEMNITY.**

 

4.1           Inthe event OEM Licensee receives a claim of infringement with respect to theCompatibility Logo(s) in any country or jurisdiction, Sun may, at its election,defend and indemnify OEM Licensee with respect to such claim and shall then payall damages awarded by a court of competent jurisdiction, or such settlementamount negotiated by Sun, attributable to such claim. OEM Licensee shallprovide notice of the claim promptly to Sun, and if Sun elects to defend andindemnify, OEM Licensee shall: (a) give Sun sole control of the defense andsettlement of the claim; (b) provide to Sun, at Sun's expense, all availableinformation, assistance and authority to defend; and (c) not compromise or settlesuch proceeding without Sun's prior written consent. 

 

4.2           THISSECTION 4 STATES THE ENTIRE LIABILITY OF SUN WITH RESPECT TO INFRINGEMENT OFANY INTELLECTUAL PROPERTY RIGHTS RELATED TO THE COMPATIBILITY LOGO(S). SUNSHALL HAVE NO OTHER LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUALPROPERTY RIGHTS OF ANY THIRD PARTY AS A RESULT OF USE, LICENSE, OR DISTRIBUTIONOF PRODUCTS OR COMPATIBILITY  LOGO(S).

 

**5.0          LIMITATIONOF LIABILITY.** Except for the express undertaking to indemnifyprovided in Section 4 and/or breach of Sections 2.4, 2.6 or 2.7:

 

a.             Each party's liability to the otherfor claims relating to this OEM License, whether for breach or in tort, shallbe limited to the license fees paid by OEM Licensee.

 

b.             IN NO EVENT WILL EITHER PARTY BELIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGESIN CONNECTION WITH OR ARISING OUT OF THIS LICENSE (INCLUDING LOSS OF PROFITS,USE, DATA, OR OTHER ECONOMIC ADVANTAGE), NO MATTER WHAT THEORY OF LIABILITY,EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCHDAMAGES. FURTHER, LIABILITY FOR SUCH DAMAGE SHALL BE EXCLUDED, EVEN IF THEEXCLUSIVE REMEDIES PROVIDED FOR IN THIS LICENSE FAIL OF THEIR ESSENTIALPURPOSE. The provisions of this Section 5.0 allocate the risks under this OEMLicense between Sun and OEM Licensee and the parties have relied upon thelimitations set forth herein in determining whether to enter into this OEMLicense.

 

**6.0          TERMAND TERMINATION.**

** **

6.1           Term. This OEM License shall begin onthe Effective Date and continue until the earlier of the following events: (a)five (5) years from the Effective Date; or (b) thirty (30) days following theearlier of OEM’s Licensee’s receipt of written notice or actual knowledge oftermination of any part of the SCSL and/or the associated trademark licenseentered into between Sun and TLDA Licensee; or (c) OEM Licensee is no longerauthorized to distribute OEM Products pursuant to the SCSL; unless earlierterminated pursuant to this OEM License. Termination is permitted for breach ofthis OEM License or the SCSL (a) upon thirty (30) days written notice to theother party and an opportunity to cure within such thirty (30) day period, or(b) immediately upon notice if such breach, by its nature, cannot be remedied.

 

6.2           Obligations on Termination. Upontermination or expiration of this OEM License, OEM Licensee shall promptlycease use, of the Compatibility Logo(s), including display, distribution, saleand marketing of all OEM Products and materials containing the CompatibilityLogo(s). All rights and licenses granted to OEM Licensee shall terminate uponsuch termination or expiration.

 

6.3           No Liability for Expiration or LawfulTermination. Neither party shall have the right to recover damages or to indemnificationof any nature, whether by way of lost profits, expenditures for promotion,payment for goodwill or otherwise made in connection with the businesscontemplated by this OEM License, due to the expiration or permitted or lawfultermination of this OEM License. EACH PARTY WAIVES AND RELEASES THE OTHER FROMANY CLAIM TO COMPENSATION OR INDEMNITY FOR TERMINATION OF THE BUSINESSRELATIONSHIP UNLESS TERMINATION IS IN MATERIAL BREACH OF THIS LICENSE. 

 

6.4           No Waiver. The failure of either partyto enforce any provision of this OEM License shall not be deemed a waiver ofthat provision. The rights of Sun under this Section 6.0 are in addition to anyother rights and remedies permitted by law or under this OEM License.

 

6.5           Survival. The parties' rights andobligations under Sections 2.4, 2.5, 2.6(b), 3.0, 4.0, 5.0, 6.2, 6.3, 6.4, 6.5,6.6 and 7.0 shall survive termination or expiration of this OEM License.

 

6.6           Irreparable Harm. Notwithstanding thelimitation of liability set forth in Section 5.0 above, the parties acknowledgethat a breach of Section 2.0 is likely to cause irreparable harm to Sun, theextent of which would be difficult to ascertain and for which damages would notbe an adequate remedy.  Therefore, inaddition to its rights and remedies otherwise available at law, including,without limitation, the recovery of damages for breach of this OEM License, Sunshall be entitled to (a) immediate equitable relief, specifically including,but not limited to, both interim and permanent restraining orders andinjunctions, and (b) to such other and further equitable relief as the courtmay deem proper under the circumstances.

 

**7.0          MISCELLANEOUS.**

 

7.1           Notices. All written notices requiredby this OEM License must be delivered in person or by means evidenced by adelivery receipt and will be effective upon receipt by the persons at theaddresses specified below.

 

Sun                                                                                         OEMLicensee

 
| Sun Microsystems, Inc.                  |   |
|-----------------------------------------|--------|
| 901 San Antonio Road                    |   |
| Attn.: Software Vice President, Sales   |   |
| cc: Software Group Legal Department     |   |
| cc: Trademarks & Brands Legal Dept. |   |

 

7.2           Partial Invalidity. If any of theabove provisions are held to be in violation of applicable law, void, orunenforceable in any jurisdiction, then such provisions are herewith waived oramended to the extent necessary for the OEM License to be otherwise enforceablein such jurisdiction.   However, if inSun's opinion deletion or amendment of any provisions of the OEM License byoperation of this paragraph unreasonably compromises the rights or increase theliabilities of Sun or its licensors, Sun reserves the right to terminate theOEM License.

 

7.3           Language. This OEM License is in theEnglish language only, which language shall be controlling in all respects, andall versions of this OEM License in any other language shall be foraccommodation only and shall not be binding on the parties to this OEM License.All communications and notices made or given pursuant to this OEM License, andall documentation and support to be provided, unless otherwise noted, shall bein the English language.

 

7.4           Governing Law. This OEM License ismade under and shall be governed by and construed under the laws of the Stateof California, regardless of its choice of laws provisions.

 

7.5           Disclaimer of Agency. Therelationship created hereby is that of licensor and licensee and the partieshereby acknowledge and agree that nothing herein shall be deemed to constituteOEM Licensee as a franchisee of Sun. OEM Licensee hereby waives the benefit ofany state or federal statutes dealing with the establishment and regulation offranchises.

 

7.6           Assignment and Change in Control.This OEM License may not be assigned or transferred by either party without theprior written consent of the other party, except that Sun may assign ortransfer this OEM License to a majority-owned subsidiary.

 

7.7           Construction. This OEM License hasbeen negotiated by Sun and OEM Licensee and by their respective counsel. ThisOEM License will be fairly interpreted in accordance with its terms and withoutany strict construction in favor of or against either party.

 

7.8           Force Majeure. Neither party shall beliable to the other party for non-performance of this OEM License, if thenon-performance is caused by events or conditions beyond that party's controland the party gives prompt notice under Section 7.1 and makes all reasonableefforts to perform.

 

7.9           Section References. Any referencecontained herein to a section of this OEM License shall be meant to refer toall subsections of the section.

 

7.10         Complete Understanding. This OEMLicense constitutes and expresses the final, complete and exclusive agreementand understanding between the parties with respect to the Compatibility Logo(s)and supersedes all previous communications, representations or agreements, whetherwritten or oral, with respect thereto. This OEM License may not be modified,amended, rescinded, canceled or waived, in whole or part, except by a writteninstrument signed by the parties.

 

INWITNESS WHEREOF, the parties have caused this OEM License to be executed bytheir duly authorized representatives.

 
| Sun:            |   | OEM Licensee:   |   |   |
|-----------------|--------|-----------------|--------|--------|
|            |   |            |   |   |   |
| By:             |   |            | By:    |   |   |
|            |   |            |   |   |   |
| Name:           |   |            | Name:  |   |   |
| (Print or Type) |   | (Print or Type) |   |
|            |   |            |   |   |   |
| Title:          |   |            | Title: |   |   |
|            |   |            |   |   |   |
| Date            |   |            | Date:  |   |   |

 

**ExhibitA**

CurrentCompatibility Logo(s)

 

JavaPowered

 

[artworkto be provided by Sun]