Business Development Agreement

Exhibit 10.57


BUSINESS DEVELOPMENT AGREEMENT


between


AUCO, INC.


and


NOVELL, INC.


BUSINESS DEVELOPMENT AGREEMENT
between
NOVELL, INC. and AUCO, INC.


This Business Development Agreement ("BDA"), having an effective date of September 6, 1996 ("Effective Date") is agreed to by Auco, INC., a California corporation with principal offices at 555 Twin Dolphin Drive, Suite 180, Redwood City, California 94065 (hereinafter referred to as "Auco"), and NOVELL, INC. (hereinafter referred to as "Novell"), a Delaware corporation with principal offices at 122 East 1700 South, Provo, Utah 84606.


1. OVERVIEW Novell and Auco are interested in satisfying the needs of their respective customers and in increasing the ease of use and interoperability of Novell and Auco products. Novell and Auco have developed and intend to continue to develop products to achieve such ease of use and interoperability. Novell and Auco desire that this BDA establish terms and conditions for use by them with regard to the development, licensing, sales or other activities of such products.


a. Description of This BDA. This BDA contains terms and conditions for all business transactions between Novell and Auco that are within its scope. Novell and Auco intend that all individual business transactions that are within the scope of this BDA be implemented through individual Statements of Work under this BDA. This BDA, by itself, does not implement any business transaction and does not create an obligation on either party to enter into any Statement of Work or to develop, license, purchase or sell any product or service, or to refrain from doing so.


2. DEFINITIONS. This BDA, and each of the Statements of Work, incorporates by reference the definitions stated below.


a. Auco Code, Novell Code, or Third-Party Code shall mean Code in which Auco, Novell, or a third party, respectively is the copyright owner.


b. Binary Code shall mean Code that loads and executes without further processing by a software compiler or linker or that results when Source Code is processed by a software compiler.


c. Change of Control shall mean when (1) any person or group (within the meaning of Rule 13d-5 under the Securities Exchange Act as in effect on the date hereof) shall come to own, directly or indirectly, beneficially or of record, voting securities representing more than 50% of the total voting power of one of the parties, (2) or one of the parties becomes a subsidiary of some third party.


d. Code shall mean computer programming code. Unless specifically stated otherwise, Code shall include Binary Code and Source Code.


e. Deliverable shall mean any Materials procured or prepared by one party under a Statement of Work for delivery to the other party. Whether or not actually delivered to the other party, Deliverables shall in all cases include all Code, Documentation, media and other objects identified as Deliverables in the Statement of Work.


BDA No.


f. Derivative Work shall mean a work that is based on one or more preexisting works (such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting work may be recast, transformed, or adapted) and that, if prepared without authorization of the copyright owner of such preexisting work, would constitute copyright of infringement under U.S. law.


g. Development Environment shall mean any non-commercially available device, Code, Documentation, media or development tool (including compilers, workbenches, tools, and higher-level or proprietary languages) that are used or required by a party for the development, maintenance or implementation of any Deliverable.


h. Documentation shall mean user manuals and other written materials that relate to particular Code, including materials useful for design (for example, logic manuals, flow charts, and principles of operation), and including machine-readable text or graphic files subject to display or print-out. Documentation shall include any Maintenance Modifications or Enhancements, in existence from time to time, to prior Documentation and shall also include new versions of prior Documentation.


i. Enhancements shall mean changes, additions or new releases, other than Maintenance Modifications, to Code and to related Documentation that are provided to existing end users without charge and that improve functions, add new functions, or improve performance by changes to system design or coding.


j. Error shall mean a Code Error: a program function that is described in a user Documentation or a Statement of Work but is omitted from the Code, or a program function or user interface that does not operate or that gives incorrect results when measured against its design specifications, or a Documentation Error: a failure of the Documentation to accurately describe a program function contained in a Statement of Work; or, a failure of the Documentation to meet the requirements of the Statement of Work; or, a failure of the Documentation to enable reasonably competent users to correctly operate the associated Code.


k. General Availability and Generally Available shall mean, in the case of Materials that are primarily made available under signed license agreements, the date on which such Materials are made available under such agreements; with respect to any other particular Material, the date that the Material is made available to members of the general public.


l. Intellectual Property Rights Questionnaire or IPRQ shall mean the form attached as Exhibit A hereto. The IPRQ is attached to this BDA as a form to be completed only as required by individual SOW's.


m. Licensed Work shall mean any Materials that are licensed by one party to the other party under a Statement of Work.


n. Level 1 Support shall mean technical support to provide marketing and installation information for a Licensed Work and/or Future Release with the intent to resolve customer calls. Level 1 Support shall not include technical support designed to correct Errors.


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o. Level 2 Support shall mean technical support to provide installation and compatibility information for a Licensed Work with the intent to resolve customer calls.


p. Level 3 Support shall mean technical support primarily designed to correct Errors. Level 3 support shall not include either Level 2 or Level 1 Support.


q. Maintenance Modification shall mean any modification or revision to Code or to Documentation, other than an Enhancement, that corrects an Error or provides another incidental correction.


r. Materials shall mean Code, Documentation and other written materials or tangible media (including machine-readable media with Code or Documentation recorded thereon), or any combination of the foregoing. Auco Materials, Novell Materials, or Third-Party Materials shall mean Materials in which Auco, Novell, or a third party, respectively, is the copyright owner.


s. NEST shall mean software marketed by Novell under the "Novell Embedded Systems Technology" or "NEST" trademarks that enables manufacturers of embedded systems devices to incorporate NetWare protocols and client services into their devices.


t. Source Code shall mean the human-readable form of the Code and related system documentation, including all comments and any procedural language.


u. Sublicense. A software license agreement between a Copyright Licensee and its sublicensee for Licensed Works based upon the Copyright Licensor's end user license agreement which at minimum:


i. restricts the number of copies of software;


ii. permits only those number of backup and archival copies of
the software as are essential to back up use of the software;


iii. states that no title to the intellectual property contained
in the software is transferred to the end user and is retained by the
Copyright Licensee and/or its licensor;


iv. represents that the Source Code of the software is not
sublicensed;


v. restricts end users of the sublicensee from de-compiling and
reverse assembling the software to discover the source code;


vi. prohibits time-sharing, sub-lease, rental, distribution or
transfer of the software, without prior written consent;


vii. in the U.S., includes a statement similar to the following:


U.S. Government Restricted Rights. Use, duplication, or
disclosure by the United States Government is subject to
restrictions as set forth in FAR/ss/. 52.227-14 (June 1987)
Alternate 111(g)(3) (June 1987), FAR/ss/. 52.227-19 (June
1987), or DFARS/ss/. 52.227-7013(c)(1)(ii) (June 1988),


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as applicable. Contractor/Manufacturer is [insert name and
address of Copyright Licensee]; and


viii. in foreign countries, includes a statement similar to the
statement included above in Paragraph 2.u.vii, as appropriate, to
protect Novell's rights in the software from the governments of such
countries.


v. Subsidiary shall mean a corporation, company or other entity (1) more than fifty percent (50%) of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, or (2) which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, but more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for such corporation, company or other entity is, now or hereafter, owned or controlled, directly or indirectly, by a party hereto. However, such corporation, company or other entity shall be deemed to be a Subsidiary only so long as such ownership or control exists.


w. Update shall mean the minor Enhancements and Maintenance Modifications specified by the licensor for specific Licensed Works available to end users during a specific period of time.


x. Upgrade shall mean Enhancements specified by the licensor for Licensed Works available to end users during a specific period of time.


y. User County Upgrade shall mean the increase in number of users specified by licensor for Licensed Works available to end users during a specific period of time.


3. ADMINISTRATION OF STATEMENTS OF WORK. Each Statement of Work shall be deemed to incorporate by reference this Section 3 unless the Statement of Work explicitly states otherwise.


a. Procedure. From time to time, Novell or Auco may propose Statements of Work under this BDA. An individual Statement of Work shall only become effective upon execution by authorized representatives of both parties.


b. Identification. Each individual Statement of Work will be identified by a numerical sequence, its title and effective date such as, for example, "Statement of Work No. 1 for ABC Development Effective on 1/1/91."


c. Required Contents. Each Statement of Work shall contain (or incorporate as attachments or by reference):


i. A brief description describing the scope of the Statement of
Work.


ii. Designation of a Novell Project Manager and an Auco Project
Manager and their addresses, telephone numbers and telefax numbers.


iii. Description of Novell's responsibilities, including work or
services to be performed, and schedules for any development or
delivery.


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iv. Description of Auco's responsibilities, including work or
services to be performed, and schedules for any development or
delivery.


v. Description of specification of any item to be developed
or delivered.


vi. Description of payments to be made, if any, by one party
to the other as consideration under the Statement of Work, including
the amount, method of calculation, schedule of payments, and address
to which such payments are to be made.


d. Optional Contents. In addition, a Statement of Work may contain (or incorporate as attachments or by reference):


i. Grant of a copyright license by one party to the other by
identifying the specific Licensed Work to be licensed. No copyright
license shall be presumed if the Statement of Work does not contain an
explicit grant.


ii. Grant of a trademark license by one party to the other. No
trademark license shall be presumed if the Statement of Work does not
contain an explicit grant.


iii. Warranty provisions, such as scope, nature, term, or
limitations.


iv. Provision for progress reports by the Project Manager(s).


v. A commitment on each party to provide to the other party,
at no charge and as part of the Licensed Work, enhancements and
Maintenance Modifications to the Licensed Work on selected platforms
before their becoming Generally Available to the public.


vi. Additional specifications, such as acceptance criteria,
documentation specifications and standards, quality standards,
performance specifications, or usability and architecture
requirements.


vii. Resource requirements, such as training or assignment of
key personnel.


viii. If training, equipment, and/or support is to be provided,
the revenue and/or expense allocation within Novell and/or Auco.


ix. Special term or termination provisions.


x. Other appropriate terms.


e. Project Managers. Unless otherwise specified in a Statement of Work, each party's Project Manager shall be responsible for managing that party's performance under the Statement of Work and for all necessary coordination with the other party's Project Manager. Each party's Project Manager will provide periodic progress reports to the other party's Project Manager. Each party will advise the other in writing of any change regarding its Project Manager.


4. COPYRIGHT LICENSE IN A STATEMENT OF WORK. A Statement of Work may contain a grant by one party ("Copyright Licensor") to the other party ("Copyright Licensee") of a copyright license to a Licensed Work identified in the Statement of Work. As stated above in Section 3.d.i, the Statement of Work may specifically incorporate one or more of the copyright licenses described in this Section 4, the Statement of Work may include additional terms that add to or modify the terms of the incorporated copyright license.


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a. Non-Confidential Full Source Code License. Under a Non-Confidential Full Source Code License, the Copyright Licensor grants to the Copyright Licensee a non-exclusive, non-transferable (except as expressly provided) worldwide, perpetual, irrevocable, payment-bearing (if the Statement of Work states that payment is required license under the Copyright Licensor's copyrights covering the Licensed Work identified in a Statement of Work. This Non-Confidential Full Source Code License grants the Copyright Licensee all of the following rights:


i. To use, reproduce and distribute the Licensed Work
internally within the Copyright Licensee.


ii. To create or have created Derivative Works by modifying
the Source Code of the Licensed Work and to reproduce and distribute
internally the Derivative Works in Source Code form or in Binary Code
form.


iii. To create or have created Derivative Works by modifying
the Documentation of the Licensed Work and to reproduce and distribute
internally such Derivative Works in any form.


iv. To distribute externally to end users, either directly or
through distributors, copies in Binary Code form only of the Licensed
Work or Derivative Works and copies in any form of the Documentation
or any Derivative Works of the Documentation. Except as explicitly
stated in the Statement of Work, such distribution shall be by means
of a Sublicense. The parties expect that such distribution right would
be payment-bearing.


v. To exercise all rights to the Licensed Work with regard to
pictorial, graphic or audio/visual works, including icons, screens,
music and characters, that are created as a result of execution of any
Code or any Derivative Work thereof in accordance with the granted
license.


vi. To use all Development Environment Materials that
accompany the Licensed Work to produce Binary Code that is identical
to that produced by the Copyright Licensor.


vii. Notwithstanding Section 9.c, to sublicense, publish or
otherwise make the Licensed Work in Source Code form.


b. Confidential Full Source Code License. Under a Confidential Full Source Code License, the Copyright Licensor grants to the Copyright Licensee a non-exclusive, non-transferable (except as expressly provided) worldwide, perpetual, irrevocable, payment-bearing (if the Statement of Work states that payment is required) license under the Copyright Licensor's copyrights covering the Licensed Work identified in a Statement of Work. This Confidential Full Source Code License grants the Copyright Licensee all of the following rights:


i. To use, reproduce and distribute the Licensed Work
internally within the Copyright Licensee.


ii. To create or have created Derivative Works by modifying
the Source Code of the Licensed Work and to reproduce and distribute
internally within the Copyright Licensee the Derivative Wor ...