270 Legal [Sample Agreements]

MASTER SOFTWARE LICENSE, PRODUCT DEVELOPMENT AND DISTRIBUTION AGREEMENT

This MASTER SOFTWARE LICENSE, PRODUCT DEVELOPMENT AND DISTRIBUTION AGREEMENT (“Agreement”), effective the date of last signature below (the “Effective Date”), is made between Motorola, Inc., a Delaware corporation, and its affiliates with a place of business at 600 North U.S. Highway 45, Libertyville, IL 60048 (“Motorola”); and Danger, Inc., a Delaware corporation, with an office at 3101 Park Blvd., Palo Alto, CA 94306 (“Danger”). Motorola and Danger are each a “Party,” and together are “Parties,” to this Agreement.

IN WITNESS WHEREOF, this Agreement together with its attachments constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes any and all prior negotiations, promises, commitments, undertakings, and agreements of the parties relating thereto.

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EXCLUSIVITY / TIME TO MARKET ADVANTAGE.

a) Subject to the terms and conditions of this Agreement, and except for [ * ], Motorola will be the exclusive distributor of the Client Software on mobile devices for [ * ]. Motorola’s rights under this Section 8 shall terminate upon the occurrence of any of the following:

i) Failure to meet any of the following “Milestones” solely based on Motorola’s (or its agents’) failure

(1) Milestone 1: [ * ] within [ * ] days following the execution of this Agreement. The parties shall work in good faith to [ * ] the [ * ] within such [ * ] day period.

(2) Milestone 2: completing [ * ] to Danger for the [ * ] hereunder by [ * ]; or

(3) Milestone 3: [ * ] with an [ * ] by [ * ].

ii) The commercial shipment of a Product does not happen by [ * ] based on [ * ], or in any event does not happen by [ * ].

iii) If within [ * ] months of the first commercial shipment of a Product, Motorola has not sold and shipped [ * ] units.

b) Notwithstanding Motorola’s exclusivity rights in this Section 8, in the event that [ * ], Danger shall have the right to [ * ] and [ * ] [ * ]. “[ * ]” shall mean an original [ * ] or a [ * ] with a [ * ] not greater than [ * ]

c) Notwithstanding the parties’ rights in Joint Information in Section 10, for any Motorola initiated Enhancements that are Joint Information under this Agreement, Danger shall not permit or enable any party other than Motorola to distribute such Enhancements for use on or with a mobile device, until the earlier of (i) the date of [ * ] of each such Enhancement on a Product or (ii) [ * ] after Danger’s [ * ] of the Enhancement in a commercial release candidate form. An Enhancement will be deemed initiated by Motorola if Motorola [ * ] through a [ * ] and such feature is not [ * ].

9) CONFIDENTIALITY.

a) Each Party agrees that all business, technical, financial and other information that it obtains from the other is the confidential property of the disclosing Party (“Confidential Information” of the disclosing Party) and shall be marked with a suitable legend. The receiving Party will hold in confidence and with reasonable care and not use or disclose any Confidential Information of the disclosing Party except under a ‘need to know’ basis and shall similarly bind its employees and contractors in writing. Upon termination of this Agreement or upon request of the disclosing Party, the receiving Party will return to the disclosing Party or destroy (and certify such destruction) all Confidential Information of such disclosing Party, all documents and media containing such Confidential Information and any and all copies or extracts thereof. The receiving Party shall not be obligated under this section with respect to information the receiving Party can document: (1) is or has become readily publicly available without restriction through no fault of the receiving Party or its employees or agents; or (2) is received without restriction from a third Party lawfully in possession of such information and lawfully empowered to disclose such information; or (3) was rightfully in the possession of the receiving Party without restriction prior to its disclosure by the other Party; or (4) was independently developed by employees or consultants of the receiving Party without access to such Confidential Information; or (5) is required to be disclosed by law or order of court of competent jurisdiction. The Parties agree that breach of these obligations may result in irreparable harm to the disclosing Party for which damages would be an inadequate remedy and the disclosing Party shall be entitled to seek equitable relief, including injunction, in the event of such breach. Either party may disclose this Agreement to its auditors, attorneys and investors provided such parties are bound to keep this Agreement confidential.

b) Either Party shall be unrestricted in its use of Residuals for any purpose, including use in the development, manufacture, promotion, sale and maintenance of its products and services; provided, that no license under any patents, copyrights or mask work rights of the disclosing party is thereby conveyed. The term “Residuals” means information of a general nature, such as general knowledge, ideas, concepts, know-how, professional skills, work experience or techniques (not specifics such as exact implementations) that is retained in the unaided memories of the receiving party’s employees who have had access to the disclosing party’s information pursuant to the terms of this Agreement. An employee’s memory is unaided if the employee has not intentionally memorized the Information for the purpose of retaining and subsequently using or disclosing it.
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