exv10w21






Exhibit 10.21




CONFIDENTIAL TREATMENT REQUEST

Confidential




	 	 	 
	

	 	TECHNOLOGY LICENSE AND SERVICES AGREEMENT





This Technology License and Services Agreement (“Agreement”) is entered into as of April 26,
2007 (the “Agreement Effective Date”) by and between Phoenix Technologies Ltd., having an
office at 915 Murphy Ranch Road, Milpitas, California 95035 U.S.A. (“Phoenix”), and Lenovo
(Singapore) Pte. Ltd., having an office at 151, Lorong Chuan, #02-01, New Tech Park, Singapore
556741 (“Licensee”). In consideration of the benefits and obligations exchanged in this Agreement,
the parties agree as follows:





	1.	 	CERTAIN DEFINED TERMS. All terms in this Agreement with initial capitals have the
meanings set forth in Attachment II — Definitions, unless defined elsewhere. All defined
terms in singular form shall include the plural meanings of such terms and vice versa, if
applicable. All references to a Section, Attachment or Amendment mean a section, attachment
or amendment of this Agreement. All references to this Agreement include all attachments,
exhibits, exhibit amendments, and amendments.
	 
	2.	 	LICENSE GRANT.
	 
	2.1	 	Subject to the additional restrictions and obligations as set forth in Section 3 and
Attachment III — Program (Object Code) License of this Agreement, Phoenix grants Licensee and
its Affiliates a non-exclusive, non-transferable, worldwide and royalty bearing license to:
(a) use, reproduce, have reproduced, perform, display and distribute the Programs, but solely
for use with or incorporation into Licensee Products; and (b) provide the Programs to TPDs and
Contract Manufacturers to use, reproduce, have reproduced, perform and display and distribute
the Programs for use with or incorporation into Licensee Products, on behalf of Licensee and
its Affiliates, pursuant to provisions consistent with the terms of this Agreement.






2.1.1 Licensee and its Affiliates shall be authorized to post a copy of the Programs licensed
pursuant to the provisions of this Agreement, for purposes of providing upgrades and support
to end users of the Programs on: (a) electronic media, such as Licensee’s website, Affiliate’s
website or secure FTP site and/or (b) physical media such as CD-ROM.




2.1.2 Licensee agrees to be responsible and liable for the actions of such Affiliates, TPD and
Contract Manufacturers, as relates to the rights granted to such parties, as set forth in this
Agreement.




	2.2	 	Phoenix grants Licensee and its Affiliates a non-exclusive, non-transferable license to: (a)
use the Tools, pursuant to the provisions set forth in Attachment IV — Tool License of this
Agreement and subject to the applicable fees for such use; and (b) internally use the Source
Code, pursuant to the provisions set forth in Attachment VII — Source Code License of this
Agreement and subject to applicable fees for such use.
	 
	2.3	 	The licenses granted in this Agreement are subject to all terms, conditions, requirements,
restrictions and limitations set forth in this Agreement. All rights not expressly granted
are reserved by Phoenix.
	 
	2.4	 	Phoenix agrees to provide services to Licensee for: (a) engineering services, pursuant
to the provisions set forth in Attachment V — Engineering Services of this Agreement and
subject to the applicable fees for such services; (b) maintenance, pursuant to the provisions
set forth in Attachment VIII — Maintenance of this Agreement and subject to the applicable
fees for such services; and (c) CSS standard support services, pursuant to the provisions set
forth in Attachment  — CSS Standard Support Services Program of this Agreement and subject to
the applicable fees for such services.
	 
	2.5	 	For purposes of clarification, Licensee and its Affiliates shall receive only those licenses
or services pursuant to the provisions of this Agreement when: (a) the specific Program
license, Tool license or Source Code license and applicable fees; and/or (b) specific services
and applicable fees are set forth in an Attachment or Amendment to this Agreement; and such
Attachment or Amendment may set forth special requirements particular to such licenses and
services.
	 
	2.6	 	The parties agree that the provisions of this Agreement, as relates to the Phoenix
Deliverables made by Phoenix to Licensee and any Services performed by Phoenix for Licensee,
shall be applicable, even if delivered or performed prior to the Agreement Effective Date.
	 
	3.	 	USE RESTRICTIONS. Licensee or any of Licensee’s Affiliates shall not, nor shall they
authorize any third party (including TPDs and Contract Manufacturers) to: (a)
sublicense, sell, or otherwise distribute any Program copies separately from Licensee Products
except as provided in Section 2.1.1; (b) alter, remove, disable or suppress the display of any
end-user license agreement, copyright, trademark, trade name, logo or trade dress included as
part of the Programs, except as may otherwise be agreed by the parties in writing; or
(c) modify (except as otherwise set forth in this Agreement), translate, reverse assemble,
decompile, or disassemble any Programs.
	 
	4.0	 	ADDITIONAL DELIVERABLES.
	 
	4.1	 	The parties may subsequently add Deliverables, services and/or other items available by
Phoenix, to this Agreement using any one of the following methods:







 




			
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	 	 	Method I: (a) Licensee issues a purchase order to Phoenix for such Deliverables, services
and/or other items, referencing this Agreement; (b) Phoenix issues an invoice to Licensee; (c)
Phoenix delivers the relevant Deliverables, services and/or other items to Licensee; and (d)
Licensee pays Phoenix the applicable fees. Each invoice issued by Phoenix in response to
Licensee’s purchase order shall constitute an Amendment to this Agreement. For purposes of
clarification, a purchase order from Licensee will be issued only for renewal of any licenses
and services, as set forth in an Attachment or Amendment to this Agreement.
	 
	 	 	Method II: (a) Phoenix and Licensee execute an Amendment to this Agreement to include such
new Deliverables and services and/or other items, as applicable; (b) Phoenix delivers the
relevant Deliverables, services and/or other items to Licensee; and (c) Licensee pays Phoenix
the fees, as applicable, per the payment method as set forth in such Amendment to this
Agreement.
	 
	 	 	Method III: (a) Phoenix and Licensee execute an Authorization Form or Evaluation/Beta Product
Form, as set forth in Attachment X — Document Forms, to this Agreement to include such new
Deliverables and/or other items, as applicable, (b) Phoenix delivers the relevant
Deliverables, and/or other items to Licensee; and (c) Licensee pays Phoenix the fees per the
payment method as set forth in such Authorization Form or Evaluation/Beta Product Form to this
Agreement, as applicable. The parties agree that upon signature by both parties such forms
shall be considered Amendment(s) to this Agreement. The parties agree that such form, may be
updated by Phoenix, from time to time.
	 
	4.2	 	Notwithstanding anything to the contrary in this Section 4 or in this Agreement, the parties
agree that this Agreement be controlling over any additional or different terms and conditions
of any invoice, acknowledgement, purchase order or other business forms used by either party
(“Other Provisions”), even if accepted in writing by both parties. The terms and conditions of
such Other Provisions will have no effect on the rights, duties or obligations of the parties
with respect to any subsequent Deliverables, services, and/or other items available from
Phoenix, regardless of the failure of either party to object to those terms or conditions.
	 
	4.3	 	The parties agree that all subsequent Deliverables, services, and/or other items provided by
Phoenix to Licensee shall be subject to the terms of this Agreement (unless otherwise provided
in a written agreement duly executed by an authorized representative of each party).
	 
	5.	 	FEES AND PAYMENT TERMS.
	 
	5.1	 	Licensee will pay Phoenix all fees in accordance with the terms of this Agreement. Except as
otherwise specified in this Agreement, Licensee will pay all amounts due on net [***] day
terms from receipt of a valid invoice from Phoenix, in United States currency. All amounts due
under this Agreement are non-cancelable, and are an absolute commitment.
	 
	5.2	 	Licensee agrees to pay Phoenix the per-Program copy royalty set forth in this Agreement
(“Royalties”) for each copy of a Program distributed on a Licensee Product. Licensee will
account for and pay all Royalties owed to Phoenix by submitting [***] Royalty reports to
Phoenix, in a form reasonably acceptable to Phoenix. Each such report shall be provided to
Phoenix within [***] and, such report shall accurately set forth the number of Program copies
reproduced on Licensee Products during the subject [***]. With each Royalty report, Licensee
will submit payment for all Royalties due Phoenix pursuant to such report. Licensee’s
obligation to furnish [***] Royalty reports and to make [***] Royalty payments to Phoenix will
continue for as long as Licensee distributes any Programs on Licensee Products. Royalty
reports are required even if Licensee reports no distribution of any Programs during a
particular quarter. If Licensee completely stops distributing Programs, Licensee will promptly
provide Phoenix with a final [***] Royalty report, a final Royalty payment for the full amount
of all Royalties due, and a written certification that Licensee has stopped all distribution
of Programs on Licensee Products.






5.2.1 In the event that there is an error in royalty reporting, Licensee may adjust (for
overpayment or underpayment) the Royalties due by Licensee to Phoenix, as set forth in
Licensee’s next Royalty Report provided to Phoenix.




	5.3	 	No per copy royalties shall be due and payable by Licensee to Phoenix, pursuant to this
Section 5, with respect to Program copies which are: (a) used or distributed internally for
software development (including Licensee’s TPDs who are performing services on Licensee’s
behalf); (b) used or distributed for demonstration, marketing or training purposes; (c) used
for backup or archival purposes; (d) used for manufacturing or testing purposes by Licensee or
Contract Manufacturers; (e) used to repair, fix an error, provide a defective copy or maintain
a Licensee Product which incorporates a Program; or (f) distributed to an
existing customer as an upgrade to their existing copy of a Program, provided Licensee has not
obtained any revenue for such upgrade.
	 
	5.4	 	During the term of this Agreement and for a period of [***] thereafter, Licensee agrees that
Phoenix may hire an independent accounting firm, mutually agreed by the parties (“Auditor”),
to audit all relevant books and records for the sole purpose of determining Licensee’s
compliance with the payment of per Program license fee obligations set forth in this
Agreement. Such Auditor shall: (a) execute the appropriate standard confidentiality agreement
with Licensee, prior to







 




			
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	 	 	conducting such audit; and (b) report to Phoenix only such information obtained during the
course of such audit as is necessary to determine whether the payments made by Licensee
hereunder are correct. Phoenix shall cause such audit to be conducted no more than once in any
[***] period. Any such audit will be conducted at Licensee’s premises during regular business
hours, after [***] days notice, and in a manner that will not unduly interfere with Licensee’s
normal business practices. Licensee will provide all reasonable assistance and cooperation
that Phoenix may request during any audit. Licensee will promptly pay Phoenix the full amount
of any underpayment revealed by an audit, and [***], Licensee shall promptly reimburse Phoenix
for the reasonable cost of such audit.
	 
	5.5	 	[***]. In no event shall Licensee be responsible for taxes computed upon Phoenix’s net
income, net worth, or gross receipts. [***].
	 
	 	 	5.5.1 [***]
	 
	 	 	5.5.2 [***]







	6.	 	DELIVERY. Unless otherwise set forth in this Agreement, Phoenix will deliver the
Deliverables to Licensee within [***] days after final execution of this Agreement, an
Amendment, or in response to Licensee providing a purchase order to Phoenix. If delivery is
via common carrier, then it will be FOB, origin Phoenix’s facility. If delivery is via
Phoenix’s WWW or FTP site or service provider, then: (a) Phoenix will provide Licensee with
all information needed to download such Deliverables; and (b) Licensee shall
be deemed to have downloaded and taken possession of all Deliverables on the same date Phoenix
provides Licensee with the information required to complete such download.
	 
	7.	 	OWNERSHIP.
	 
	7.1	 	All Deliverables and Modifications, made by Phoenix or on behalf of Phoenix, are the
proprietary property of Phoenix and/or its suppliers. Except to the extent expressly
authorized in this Agreement, Licensee shall have no right to, nor shall it authorize any
third party (including Affiliates, TPDs and Contract Manufacturers) to: sell, assign, lease,
transfer, encumber, or otherwise suffer to exist any lien or security interest on the
Deliverables (or Modifications, made by Phoenix or on behalf of Phoenix).
	 
	7.2	 	[***]
	 
	8.	 	WARRANTIES AND DISCLAIMERS.
	 
	8.1	 	Phoenix warrants and represents to Licensee that, as of the Agreement Effective Date, it owns
or has sufficient right, title, and interest in and to the Deliverables to grant the licenses,
and other rights granted to Licensee by Phoenix under this Agreement. [***]
	 
	8.2	 	Phoenix warrants and represents to Licensee that, to the best of its knowledge, it owns or
has sufficient right, title and interest in and to the trademarks, trade names, logos and
trade dress included as part of the Deliverables.
	 
	8.3	 	Phoenix warrants to Licensee that the Deliverables, in their unmodified form and when used as
authorized under this Agreement, will perform materially in accordance with the Phoenix
Specifications for a period of [***] from the date of initial delivery of the Deliverables to
Licensee (the “Warranty Period”). If, during the Warranty Period, the Deliverables do not
perform materially in accordance with their Specifications, Phoenix shall use commercially
reasonable efforts to rectify the non-conformity. If Phoenix determines that the preceding
option is commercially impractical, then Phoenix shall [***] and in such event, any licenses
granted by Phoenix to Licensee for such Deliverables shall terminate. THE PROVISIONS OF THIS
SECTION 8.3 STATE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO LICENSEE WITH RESPECT TO THE
WARRANITIES SET FORTH IN THIS SECTION 8.3.
	 
	8.4	 	In addition to the warranties stated above, Phoenix warrants to Licensee that:
	 
	 	 	(a) Phoenix has entered into written agreements with its employees, contractors,
licensees or other applicable third parties, as necessary for it to comply with all of
its obligations under this Agreement;







	 	 	(b) [***]
	 
	 	 	(c) [***]
	 
	 	 	(d) [***]
	 
	 	 	(e) [***]
	 
	 	 	(f) Services will be performed in a good and workmanlike manner by individuals with
sufficient skill, experience and training to fulfill Phoenix’s obligations under the
terms of this Agreement;
	 
	 	 	(g) Phoenix will comply with all applicable export and import laws, regulations,
orders, and policies (including, but not limited to, securing all necessary clearance
requirements, export and import licenses and exemptions from, and making all proper
filings with appropriate governmental bodies and/or disclosures relating to the release
or transfer of technology and software to non U.S. nationals in the U.S., or outside the
U.S., release or transfer of technology and software having U.S. content or derived from
U.S.-origin software or technology);
	 
	 	 	(h) [***]
	 
	 	 	(i) [***]
	 
	 	 	(j) [***]
	 
	 	 	(k) Phoenix shall verify that any encryption technologies, included in any of the
Deliverables, are classified with an Export Control Classification







 




			
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Number (ECCN), with the origin of the classification identified via CCATS number of self
certification documentation as per U.S. Export Administration Regulations (EAR) that are
implemented and enforced by the U.S. Department of Commerce Bureau of Industry and Security
(BIS);




(l) [***]. Phoenix represents that it shall not include any explosive, hazardous, incendiary
and/or destructive materials in any products transported under this Agreement; and




(m) All Deliverables and Services will process date data correctly (including, without
limitation, correctly processing, providing, receiving, and displaying date data) within
and between the twentieth and twenty-first centuries, and are designed to exchange date
data accurately and correctly with other products (including, without limitation,
hardware, software, and firmware) used with Deliverables and Services.




	8.5	 	PHOENIX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING
OR RELATING TO ANY DELIVERABLES OR SERVICES FURNISHED OR PROVIDED TO LICENSEE UNDER THIS
AGREEMENT. PHOENIX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
	 
	9.	 	INDEMNIFICATION BY PHOENIX.
	 
	9.1	 	Phoenix represents and warrants that, as of the Agreement Effective Date, it has no actual
knowledge of any pending suit or proceeding alleging an infringement for which Phoenix would
have an indemnity obligation under this Section 9.
	 
	9.2	 	Phoenix will, at its own expense, defend, indemnify and hold Licensee harmless from any claim
made or threatened or any suit or proceeding brought against Licensee to the extent based on
an allegation that any Deliverable furnished to Licensee under this Agreement infringes a
United States, Japan, Taiwan, People’s Republic of China, South Korea, Canada, Singapore, or
European Union copyright, patent, trademark or trade secret in existence during the term of
this Agreement. Licensee shall: (a) notify Phoenix in writing within a reasonable period of
time of such action; (b) give Phoenix the right to control and direct the defense and
settlement of such action; (c) make no compromise, settlement or admission of liability that
is not approved by Phoenix; and (d) provide reasonable assistance and cooperates in the
defense of such action. Subject to the limitations set forth in Section 11, Phoenix shall pay
any resulting damages, costs and expenses finally awarded to a third party, including but not
limited to reasonable attorney’s fees, and any settlement to which Phoenix has agreed, and
will pay Licensee’s reasonable attorney’s fees incurred in reviewing the claim. Phoenix will
have no responsibility for the settlement of any claim, suit or proceeding made by Licensee
without Phoenix’s prior written approval. Notwithstanding the foregoing, Licensee may retain
counsel and participate in the defense of any such action or claim solely at its own option
and expense, provided however that Licensee’s defense corresponds with Phoenix’s defense.
	 
	9.3	 	With respect to any claim made or threatened or any suit or proceeding brought against
Licensee so far as it is based on an allegation that any Program furnished hereunder to
Licensee infringes a Malaysia or Israel copyright in existence on the date such Program was
provided to Licensee, Phoenix’s obligations to Licensee shall be to use commercially
reasonable efforts to modify the Program to make the Program non-infringing. Phoenix’s
inability to modify the Program to make the Program non-infringing shall not be deemed a
breach of this Agreement. If Phoenix is unable to perform the modification to the Program to
make the Program non-infringing, then Phoenix shall return to Licensee any license fees paid
for the Programs in question, and in such event, any licenses granted by Phoenix to Licensee
for such Programs shall terminate.
	 
	9.4	 	If any Deliverable is held to infringe and the use of such Deliverable is enjoined, Phoenix
will at its expense: (a) procure for Licensee the right to continue using such infringing or
potentially infringing Deliverable; or (b) replace the infringing or potentially infringing
Deliverable with non-infringing Deliverable; or (c) modify the infringing or potentially
infringing Deliverable so it becomes non-infringing. If none of the foregoing remedies are
commercially feasible, then Phoenix will return to Licensee any license fees paid for the
Deliverable in question, and at such event, any licenses granted by Phoenix to Licensee for
such Deliverable shall terminate.
	 
	9.5	 	Phoenix’s obligations as stated in this Section 9 will not apply to any claim, suit or
proceeding to the extent it is based on: (a) any modification of the Deliverables other than
by Phoenix or the combination of the Deliverables with non-Phoenix hardware or software, if
the claim, suit or proceeding would have been avoided if the Deliverables had not been so
modified or combined, provided, however, if the underlying claim, suit or proceeding is
directly attributable to the Deliverables component of a combination, the provisions of
Section 9.2 shall apply as against Phoenix; or (b) any use of the Deliverables not authorized
by this Agreement.
	 
	9.6	 	This Section 9 sets forth the entire obligation of Phoenix, and Licensee’s exclusive remedy,
for the actual or alleged infringement by any Deliverables of any patent, copyright, trade
secret or other intellectual property right of any person or entity.
	 
	10.	 	INDEMNIFICATION BY LICENSEE.







 




			
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	10.1	 	Licensee will, at its own expense, defend, indemnify and hold Phoenix harmless from any claim
made or threatened or any suit or proceeding brought against Phoenix to the extent based on an
allegation that any Modification of the Source Code, made by or for Licensee by anyone other
than Phoenix, and for any Modification made by Phoenix to the extent such Modification was
made as a result of Phoenix’s compliance with Licensee’s specifications or instructions,
excluding any Phoenix Deliverables contained therein in the underlying code, infringes a
United States, Japan, Taiwan, People’s Republic of China, South Korea, Canada, Singapore, or
European Union copyright or patent, trade mark, or trade secret. Phoenix shall: (a) notify
Licensee in writing within a reasonable period of time of such action; (b) give Licensee the
right to control and direct the defense and settlement of such action; (c) make no compromise,
settlement or admission of liability that is not approved by Licensee; and (d) provide
reasonable assistance and cooperates in the defense of such action. Subject to the
limitations set forth in Section 11, Licensee shall pay any resulting damages, costs and
expenses finally awarded to a third party, including but not limited to reasonable attorney’s
fees, and any settlement to which Licensee has agreed, and will pay Phoenix’s reasonable
attorney’s fees incurred in reviewing the claim. Licensee will have no responsibility for the
settlement of any claim, suit or proceeding made by Phoenix without Licensee’s prior written
approval. Notwithstanding the foregoing, Phoenix may retain counsel and participate in the
defense of such action or claim solely at its own option and expense; provided however that
Phoenix’s defense corresponds with Licensee’s defense.
	 
	10.2	 	Licensee shall indemnify Phoenix against all claims, liabilities, proceedings, costs,
damages, losses, liabilities or expenses incurred by Phoenix caused by the negligence or
willful misconduct of any TPD or Affiliate in connection with the unauthorized use or
disclosure of the Source Code.
	 
	11.	 	LIMITATION OF LIABILITY.
	 
	11.1	 	EXCEPT FOR ANY LIABILITY ARISING FROM SECTION 9 AND SECTION 10, IN NO EVENT WILL EITHER PARTY
BE LIABLE TO EACH OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR
SPECIAL DAMAGES, EVEN IF THE PARTY TO BE CHARGED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
	 
	11.2	 	EXCEPT FOR ANY LIABILITY ARISING FROM (A) LICENSEE’S BREACH OF THE LICENSE GRANT PROVISIONS
OF THIS AGREEMENT OR (B) LICENSEE’S BREACH OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT
OR (C) PHOENIX’S BREACH OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT OR (D) WILLFUL
INFRINGEMENT BY EITHER PARTY, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY UNDER ANY OR ALL
PROVISIONS OF THIS AGREEMENT FOR ALL CAUSES OF ACTION ON A CUMULATIVE BASIS EXCEED THE GREATER
OF THE PAYMENTS ACTUALLY MADE TO PHOENIX BY LICENSEE UNDER THIS AGREEMENT DURING THE
IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD OR [***].
	 
	11.3	 	NOTWITHSTANDING THE PROVISIONS OF SECTION 11.1 AND SECTION 11.2, EACH PARTY’S TOTAL LIABILITY
UNDER SECTION 9 AND SECTION 10, RESPECTIVELY, SHALL NOT EXCEED THE GREATER OF THE PAYMENTS AS
DEFINED IN SECTION 11.2 OR [***].
	 
	11.4	 	THE PARTIES AGREE THAT PHOENIX HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE
UPON THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION 11, WHICH REPRESENT A BARGAINED-FOR
ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF
ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND FORMS AN ESSENTIAL BASIS OF THE
BARGAIN BETWEEN THE PARTIES.
	 
	12.	 	CONFIDENTIALITY.
	 
	12.1	 	On April 26, 2005, Phoenix and Licensee, as successor-in-interest to International Business
Machines Corporation, entered into a Confidential Disclosure Agreement; bearing agreement
number 4905RL1052 (“2005 NDA”). For reference purposes, the 2005 NDA is provided in Attachment
XII — Confidential Disclosure Agreement between Phoenix and Licensee.
	 
	12.2	 	The parties agree that any disclosure by a party (as “Discloser”) to the other party (as
“Recipient”) of Confidential Information, as defined in the 2005 NDA, shall be disclosed by
the parties pursuant to the provisions of the 2005 NDA.
	 
	12.3	 	Notwithstanding the provisions of the 2005 NDA, the parties agree as follows:






(a) the terms and conditions of this Agreement shall be considered Confidential Information,
and neither Party will disclose the provisions of this Agreement other than to business,
financial and legal advisors, or as required by law or regulation, without the express written
consent of the other Party;




(b) prior to any disclosure of the Source Code and/or Internal Use Tools, the parties shall
not be required to sign a Supplement to the 2005 NDA;




(c) prior to any disclosure of the Source Code and Internal Use Tools to any TPDs or
Affiliates, such





 




			
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parties must be identified in an Attachment or Amendment to this Agreement;




(d) the Source Code and Internal Use Tools shall be considered Confidential Information, even
if not so marked or identified as “confidential” or even if such information does not include
any restrictive marking;




(e) the duty to protect the confidentiality of the terms and conditions of this Agreement
shall continue for a period of five (5) years from the expiration date or termination date of
this Agreement;




(f) the duty to protect the confidentiality of the Source Code shall survive any expiration or
termination of this Agreement and continue until such time as Phoenix releases the Source Code
into the public domain without any restriction on disclosure, if such an event ever occurs;




(g) the duty to protect the confidentiality of Phoenix’s Internal Use Tools shall continue for
a period of five (5) years from the expiration date or termination date of this Agreement;




(h) the duty to protect the confidentiality of Lenovo Code and Lenovo Code Derivative Works
shall survive any expiration or termination of this Agreement and continue until such time as
Licensee releases the code into the public domain without any restriction on disclosure, if
such an event ever occurs;




(i) the parties agree not to terminate the 2005 NDA during the term of this Agreement;




(j) in the event that any provision of the 2005 NDA conflicts with the provisions of this
Agreement, then the provisions of this Agreement shall govern; and




(k) in the event that the 2005 NDA does not include a provision with regard to a particular
subject matter, then the provisions of this Agreement shall govern.




	13.	 	TERM AND TERMINATION.
	 
	13.1	 	The term of this Agreement shall commence on the Agreement Effective Date and shall continue
for a period of five (5) years thereafter, unless earlier terminated by either party pursuant
to this Section.
	 
	13.2	 	At any time after March 31, 2009, Licensee may terminate this Agreement by providing sixty
(60) days written notice of termination to Phoenix.
	 
	13.3	 	Either party may terminate this Agreement upon thirty (30) days written notice to the other
party if the other party is in material breach of this Agreement and such material breach is
not cured within such period.
	 
	13.4	 	If either party: (a) becomes insolvent; (b) makes an assignment for the benefit of creditors;
(c) files or has filed against it a petition in bankruptcy or seeking reorganization; (d) has
a receiver appointed; and/or (e) institutes any proceedings for liquidation or winding up;
then the other party may terminate this Agreement immediately by written notice.
	 
	13.5	 	Within ten (10) days after expiration or termination of this Agreement, each party shall (a)
return or destroy the original and all copies of any Confidential Information (including all
Deliverables) in its possession or control, including but not limited to all copies contained
on any magnetic or optical storage device owned or controlled by such party, and
(b) provide the other with a statement, signed by a authorized officer of such party, that
the originals and all copies have been returned or destroyed. Except as otherwise set forth in
this Section 13.5, upon expiration or termination, all licenses granted in this Agreement will
cease and shall have no further effect; provided that end users of the Programs shall be
permitted the continued and uninterrupted use. Upon expiration or termination, each Party
will remain obligated under this Agreement for transactions that have already been completed
and to those parts of the Agreement relating to ownership, confidentiality, warranties,
indemnity, limitation of liability, payment terms, obligations upon expiration or termination,
and any other applicable provisions which by their nature would survive any such expiration or
termination of this Agreement.
	 
	 	 	13.5.1 [***]
	 
	 	 	13.5.2 [***]
	 
	 	 	13.5.3 Notwithstanding the foregoing, upon termination of this Agreement due to Phoenix
becoming insolvent or Phoenix instituting any proceedings for liquidation or winding up, as
set forth in Section 13.3, then Phoenix agrees the license rights set forth herein for
Deliverables licensed by Phoenix to Licensee prior to such termination shall remain in effect;
and Licensee agrees such programs shall be subject to the provisions of this Agreement.






	14.	 	GENERAL.
	 
	14.1	 	Assignment. Neither party may assign (by operation of law or otherwise) any or all
of its rights and obligations under this Agreement without the prior written consent of the
other party, provided however, that each Party may assign its rights and obligations on
written notice to the other Party without such consent: (a) in the case of Phoenix, to its
wholly-owned subsidiaries; and (b) in the case of Licensee, to Licensee’s parent and parent’s
wholly-owned subsidiaries; so long as, in any assignment to such a subsidiary, Phoenix or
Licensee’s parent, as the case may be, guarantee the performance of the assignee-subsidiary.
Subject to the foregoing sentence, this Agreement shall be binding upon and inure to the
benefit of the parties, their successors and permitted assigns.
	 
	14.2	 	Governing Law and Jurisdiction. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without reference to its







 




			
	THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.





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	CONFIDENTIAL TREATMENT REQUEST	 	 
	Confidential
	 	 







	 	 	conflict of law rules. The United Nations Convention on Contracts for the International Sale
of Goods is expressly excluded from application to this Agreement.
	 
	14.3	 	Partial Invalidity; Waiver. In the event that any provision of this Agreement is
held by a court of competent jurisdiction to be invalid, such provision shall be severed from
this Agreement and shall not affect the validity of this Agreement as a whole or any of its
other provisions. No waiver of any provision of this Agreement shall be effective unless it
is set forth in a writing that refers to the provision so waived and is executed by an
authorized representative of the party waiving its rights. No failure or delay by either
party in exercising any right, power or remedy will operate as a waiver of any such right,
power or remedy.
	 
	14.4	 	Injunctive Relief. Each party agrees that any actual or threatened breach of the
confidentiality and licensing provisions of this Agreement may cause substantial harm to the
non-breaching party that may not be cured by money damages; therefore, either party may seek
equitable relief upon request to protect such rights under this Agreement.
	 
	14.5	 	Notices. Any notice required or permitted to be made or given by either party will
be deemed sufficiently made or given on the date of issuance if sent by certified mail,
commercial courier, personal delivery, or a similar delivery method with a receipt for
delivery. Any notice shall be addressed to the other party at the address in the header of
this Agreement or to such other address as a party may designate by written notice given to
the other party. Notices to Phoenix shall be sent to the attention of the General Counsel.
	 
	14.6	 	Export. Each party agrees that it will not, nor will it authorize any third party
to, export or re-export the Deliverables, in any form, without first obtaining any required
United States and/or other governmental licenses or other authorization. By entering into
this Agreement, Licensee represents and warrants that it is neither: (a) located in or under
the control of, nor is a national or resident of, any U.S. embargoed country; or (b) listed
on, or under the control of any person listed on, the U.S. Treasury Department’s list of
Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. If
any licenses or authorizations are required, as relates to Phoenix products, then Phoenix
agrees to provide reasonable assistance to Licensee, upon request from Licensee.
	 
	14.7	 	Entire Agreement. The provisions of this Agreement (including any attachments,
exhibits, exhibit amendments and amendments) constitute the entire agreement between the
parties and supersede all prior agreements, oral or written, and all other communications
relating to the subject matter of this Agreement.




As shown by its signature below, each party agrees to all provisions of this Agreement and has
caused this Agreement to be executed on the date specified below by an individual authorized to
sign on behalf of such party.






	 	 	 	 	 	 	 	 	 	 	 
	Phoenix: Phoenix Technologies Ltd.	 	Licensee: Lenovo (Singapore) Pte. Ltd.
	 
	 	 	 	 	 	 	 	 	 	 
	Authorized Signature:	 	/s/ Phoenix Technologies	 	Authorized Signature:	 	/s/ Lenovo
	 

	 	 	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Printed Name:

	 	 	 	 	 	Printed Name:	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	Title:	 	 	 	 
	
 
	 	
 

	 
	 	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Date:	 	 	 	 
	
 
	 	
 








 




			
	THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.





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	CONFIDENTIAL TREATMENT REQUEST	 	Phoenix Agreement Number 73210100
	Confidential
	 	Lenovo Agreement Number 4907L10470





SUMMARY OF ATTACHMENTS



The following Attachments are referenced pursuant to the terms and conditions of this Agreement:




	 	 	 
	Attachment IA

	 	Licenses and Services (Mobile)
	 
	 	 
	Attachment IB

	 	Licenses and Services (Desktop)
	 
	 	 
	Attachment IC

	 	Licenses and Services (Options)
	 
	 	 
	Attachment ID

	 	Licenses and Services (Special Requirements)
	 
	 	 
	Attachment IE

	 	Licenses and Services (MLA Summary)
	 
	 	 
	Attachment II

	 	Definitions
	 
	 	 
	Attachment III

	 	Program (Object Code) License
	 
	 	 
	Attachment IV

	 	Tool License
	 
	 	 
	Attachment V

	 	Engineering Services
	 
	 	 
	Attachment VI

	 	Intentionally Left Blank
	 
	 	 
	Attachment VII

	 	Source Code License
	 
	 	 
	Attachment VIII

	 	Maintenance
	 
	 	 
	Attachment IX

	 	CSS Standard Support Program
	 
	 	 
	Attachment X

	 	Document Forms
	 
	 	 
	 

	 	Form A – Non-Disclosure Agreement
	 
	 	 
	 

	 	Form B – Authorization Form
	 
	 	 
	 

	 	Form C – Quarterly Support Services Usage Report
	 
	 	 
	 

	 	Form D – Certification of Originality
	 
	 	 
	 

	 	Form E – Lenovo Technology Form
	 
	 	 
	 

	 	Form F – Licensee Travel and Expense Policy
	 
	 	 
	 

	 	Form G – Evaluation/Beta Product Form
	 
	 	 
	Attachment XI

	 	Evaluation and Beta Licenses
	 
	 	 
	Attachment XII

	 	Confidential Disclosure Agreement between Phoenix and Licensee








 




			
	THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.






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