Interactive Sparc Software And Sublicensing Agrmnt

SPARC SOFTWARE AGREEMENT


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CONTENTS:


1. Definitions


2. Source Code Grant of Rights and Distribution Restrictions


3. Object Code Grant of Rights and Distribution Restrictions


4. Order and Delivery


5. Term and Termination


6. Payments


7. Records and Reports


8. Proprietary Information


9. Warranties/Limitation of Liability and Remedies


10. Maintenance and Support


11. Patent, Trade Secret and Copyright Indemnification


12. Force Majeure and Compliance With Laws


13. Export of Software Products


14. Miscellaneous


- ----------------------------------------------------------------------------- SPARC Software Agreement - 1 - 11/08/91


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INTERACTIVE Systems Corporation


SPARC (tm) SOFTWARE AGREEMENT


This SPARC Software Agreement, effective on the day both parties hereto have executed it ("Effective Date"), is between


Auspex Systems inc.,
(hereinafter "Licensee") having offices located at


2952 Bunker Hill Lane
Santa Clara, CA 95054


and INTERACTIVE Systems Corporation, a Delaware Corporation (hereinafter "INTERACTIVE"), with its principal place of business at 2401 Colorado Avenue, Third Floor, Santa Monica, CA 90404.


Recitals A. INTERACTIVE has developed, is the owner of and/or has the right to
license to Licensee certain computer software programs and materials
including such programs and materials furnished to INTERACTIVE by Sun
Microsystems, Inc. ("Sun").


B. Licensee desires to obtain a license to use, modify and distribute said
software in accordance with the terms and conditions set forth in this
Agreement.


NOW, THEREFORE, for good and valuable consideration the receipt and adequacy of which is hereby acknowledged, the parties do agree as follows:


1. DEFINITIONS


1. "Designated Equipment" means an equipment configuration comprising a
Licensee computer system made up of one or more closely coupled
SPARC Central Processing Units, or computer systems manufactured by
Sun, as identified in Exhibit A. Licensee shall have the right to
amend Exhibit A to cover new Licensee Computer Systems, as they
are introduced. Additional Internal Copies fees set forth in Section
7.2 of Exhibit A, provided that the required Object Code Sublicense
Fees set forth in Section 7.3 of Exhibit A are also paid for Object
Code Sublicenses. Licensee shall have the right to substitute a
different "Designated Equipment" at the Designated Site, provided
that: (i) prior written notification is given to INTERACTIVE, (ii)
the Software Products and any backup copies are removed from the
original Designated Equipment, and (iii) the new Designated
Equipment has been identified on Licensee's AT&T source code license
as equipment on which source code may be placed. Such substitution
of Designated Equipment shall be at no charge to Licensee.


2. "Designated Site" means the location of the Designated Equipment, as
identified in Exhibit A or any addenda thereto.


3. "Documentation" means users' manuals, programmers' guides and/or
system guides formatted with standard -ms macros and provided by
INTERACTIVE for use with the Software Products. It shall be the
responsibility of Licensee to reformat and reproduce the
Documentation for distribution to its customers with the Software
Products in object code form.


4. "Licensee('s) Computer System(s)" means any computer system
manufactured and marketed by Licensee incorporating the SPARC
Central Processing Unit.


5. "Proprietary Information" means that information which INTERACTIVE,
Sun, and their suppliers desire to protect against unrestricted
disclosure or competitive use and which is designated as such in
writing by INTERACTIVE or is disclosed orally and provided to
Licensee pursuant to this Agreement. All Proprietary Information
shall be properly marked or noted as such prior to disclosure.
Notwithstanding the foregoing, Licensee agrees that the source code
form of the Software Product(s) is confidential and any information
about the source code form of the Software Product(s) disclosed
orally to Licensee is deemed Proprietary Information without further
notice. Proprietary Information may include property of third
parties who have granted licenses to INTERACTIVE. (See Article 8 for
further details.)


6. "Software Product(s)" means the computer programs identified in
Exhibit A, including the following:


a. The SunOS Operating System Software, Release 4.1.1/SPARC
("SunOS"), in source code and object code form, information
used or interpreted by such computer program and Documentation
relating to the use of such computer program. The SunOS
Operating System Software is derived from UNIX* System V
software licensed from AT&T Information Systems, Inc. ("AT&T")
and modified by Sun and is based, in part, on the Fourth
Berkeley Software Distribution licensed from The Regents of
the University of California. (*UNIX is a registered trademark
of AT&T.)


b. The C Compiler, Release 4.1.1/SPARC, in source code and object
code form, information used or interpreted by such computer
program and Documentation relating to the use of


SPARC Software Agreement - 2 - 11/08/91


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such computer program.


c. ONC/NFS Software, Release 3.9, in source code and object code form,
information used or interpreted by such computer program and
Documentation relating to the use of such computer program.


d. The FORTRAN Compiler, Release 1.2/SPARC, in source code and object
code form, information used or interpreted by such computer program
and Documentation relating to the use of such computer program.


e. SunView Software, Release 1.75. In source code and object code form,
information used or interpreted by such computer program and
Documentation relating to the use of such computer program.


The term Software Product(s) shall also include any Updates thereto. The
contents of the Software Products are more specifically set forth in
Exhibit B.


7. "SPARC" is a trademark of Sun used to designate Sun's proprietary
scalable processor architecture technology.


8. "SPARC Central Processing Unit" means a central processing unit
incorporating one or more SPARC semiconductor devices manufactured under
license from Sun.


9. "Update" means a derivative work, extension, enhancement, revision or
modification to any of the features of a Software Product made by Sun or
INTERACTIVE which Sun or INTERACTIVE, in their sole discretion, determine
to be an improvement of the Software Products's performance or
functionality.


10. "U.S. Dollars", "US$" or "$" shall mean Dollars of the United States of
America.


2. SOURCE CODE GRANT OF RIGHTS AND DISTRIBUTION RESTRICTIONS


1. Rights to Use, Modify and Compile, Conditional on payment by Licensee to
INTERACTIVE of a Source License Fee, INTERACTIVE grants to Licensee a
personal, nontransferable and nonexclusive license to use the Software
Products in source code form on the Designated Equipment at the
Designated Site. Such license includes the right to modify the Software
Products and to prepare derivative works based on the Software Products.
Licensee may also compile the Software Products from source code to
object code form and use it on the Designated Equipment. Licensee agrees
that INTERACTIVE, Sun, and their suppliers are the sole owners of all
right, title and interest in the Software Products, and nothing in this
Agreement shall be construed to give Licensee any ownership in the
Software Products. Licensee acknowledges and agrees that the Software
Products in source code form are Proprietary Information and are to be
treated as such in accordance with Article 8 of this Agreement.


2. Transfer to Backup Equipment. In the event, and only for so long as,
Licensee's Designated Equipment is inoperative, Licensee may transfer to
and use the Software Products on a backup Licensee Computer System which
shall, for this purpose only, be made up of one or more SPARC Central
Processing Units, or computer systems manufactured by Sun owned or leased
by Licensee at the Designated Site or another site, provided, however,
that if Licensee transfers the Software Products to such a backup system
at another site, Licensee shall inform INTERACTIVE of such transfer in
writing, describing such site and such other system.


3. Copying of Source Code for Internal Use. INTERACTIVE grants Licensee the
right to make additional copies of the Software Products in source code
form for Licensee's own internal use on Licensee's Computer Systems, as
described in Section 2.2 above, provided (a) Licensee remits, to
INTERACTIVE within fourteen days of Installation, the license fees
specified in Exhibit A for such additional copies; (b) Licensee provides
notice to INTERACTIVE's Legal Department of the serial number
("Additional Designated Equipment") and location ("Additional Designated
Site"), if any, of any such system holding the additional copy of the
Software Products in source code form; and (c) the equipment on which
such copies are used is licensed to use AT&T source code.


4. Copying of Source Code for Use by Third Parties. Conditional on payment
by Licensee to INTERACTIVE of a license fee for Distribution of Source
Code to Third Parties for each copy, Licensee may make copies of the
Software Products in source code form, after Licensee has modified the
Software Products for use solely on Licensee Computer Systems made up of
one or more SPARC Central Processing Units and may sublicense to such
third parties as are Licensee's customers (without giving such third
parties the right to further sublicense) such copies throughout the world
(subject to U.S. Government export restrictions and AT&T licensing
requirements), provided that (a) INTERACTIVE consents to each delivery
prior to shipment to Licensee's customer, which consent shall not be
unreasonably withheld, (b) Licensee's customer agrees to execute
INTERACTIVE's then-prevailing SPARC Software Agreement, and (c) at the
time of execution of the SPARC Software Agreement referenced in (b),
Licensee or its customer pays to INTERACTIVE the license fees set forth
in Exhibit A hereof. Notwithstanding the foregoing, Licensee shall have
no right to make copies of SunView 1.75 Software in source code form,
except as provided in Section 2.3 hereof, nor any right to provide copies
thereof to anyone.


5. Condition Precedent for Grant of License. Licensee shall deliver to
INTERACTIVE a copy of a fully executed AT&T source code license (attached
hereto as Exhibit D) which corresponds to the


SPARC Software Agreement - 3 - 11/08/91


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common source code licensed hereunder as a condition precedent to
INTERACTIVE's furnishing to Licensee the Software Products in source code
form and granting Licensee a license to use the Software Products in
source code form. Such AT&T source code license shall identify the
equipment on which Licensee intends to use all copies of the Software
Products in source code form. Licensee shall also deliver to INTERACTIVE
a fully executed AT&T commercial sublicensing agreement (attached hereto
as Exhibit E) which corresponds to the sublicensing rights licensed
hereunder as a condition precedent to INTERACTIVE's granting Licensee the
right to make and distribute copies of the Software Products. Licensee
shall pay all AT&T fees associated with such source code license and
commercial sublicensing agreement. Licensee represents and warrants that
such Licensee-AT&T Agreements are in full force and effect. Licensee
agrees to give INTERACTIVE prompt written notice of any notice served by
AT&T on Licensee that Licensee is in default under the Licensee-AT&T
Agreements or that the Licensee-AT&T Agreements have been terminated for
any reason.


6. Remote Access. Licensee agrees that if the Software Products in source
code form are installed on a Licensee Computer System (as permitted in
Section 2.3 hereof) to which remote access is possible, such Software
Products will be installed only on a limited access network where either
(a) access to the Software Products is limited to those of Licensee's
employees with a need to have access or (b) the Software Products are
protected through an equally protective encryption process.


7. Cross License. Licensee shall retain all right, title and interest in any
modifications and derivative works based on the Software Products
developed by or on behalf of Licensee, provided, however, Licensee
obtains no rights or interest, other than the licenses granted hereunder,
in the Software Products.


3. OBJECT CODE GRANT OF RIGHTS AND DISTRIBUTION RESTRICTIONS


1. Copying and Distribution of Object Code. Conditional on payment by
Licensee to INTERACTIVE of Object Code Sublicense Fees as stated in
Exhibit A, INTERACTIVE grants to Licensee a personal, nontransferable and
nonexclusive right to make copies of the derivative versions of the
Software Products as described in Section 2.1 in object code form and
to distribute internally and to furnish, either directly or through
Licensee's normal distribution channels, including OEM's, such copies of
the derivative versions of the Software Products described in Section 2.1
to customers anywhere in the world (subject to U.S. Government export
restrictions and the requirements of Article 13) for use solely on
Licensee Computer Systems made up of one or more SPARC Central Processing
Units. Licensee agrees to remit to INTERACTIVE the sublicense fees
specified in Exhibit A for each copy of the derivative versions of the
Software Products described in Section 2.1 in object code form used
internally or distributed by Licensee. Notwithstanding the provisions of
this Section 3.1, Licensee may use, and permit distributors to use,
copies of the derivative versions of the Software Products described in
Section 2.1 without fee solely for testing Licensee Computer Systems that
are to be delivered to customers.


2. Use by Licensee's Customer. Each Licensee customer shall execute an
object code license that (i) incorporates, in substance, the provisions
of the INTERACTIVE Object Code License, attached hereto as Exhibit C;
(ii) that substitutes Licensee instead of INTERACTIVE as the Licensor;
and (iii) contains any additions or modifications necessary to fulfill
Licensee's obligations under this Agreement; provided, however, that if
Sun permits Licensee to provide an object code version of the Software
Products to its customers with a shrink-wrap license, the requirement
that the customer execute an object code license shall be replaced with
the following: the license shall be fully visible to the end-user before
the package is opened, that the end-user accepts by opening the package
and that complies with applicable law relating to agreements of such
type. Subject to the terms of this Agreement Licensee will be responsible
for the translation of the INTERACTIVE Object Code License into the
language(s) used in the jurisdictions into which Licensee distributes the
Software Products in compliance with the terms of this Agreement.


3. Distribution by Licensee's Distributors. Should Licensee wish to
distribute the Software Products in object code form through its normal
distribution channels for use solely on Licensee Computer Systems made up
of one or more SPARC Central Processing Units, Licensee shall have
entered into a written agreement with each distributor or shall require
each distributor to enter into a written agreement with Licensee. At a
minimum such written agreement shall incorporate, in substance, the
relevant provisions of this Agreement regarding object code distribution
restrictions (Article 3), Proprietary Information (Article 8) and export
controls (Article 13). Licensee shall fully indemnify and hold
INTERACTIVE and/or its suppliers harmless from any losses, damages,
costs, or other liabilities incurred by such parties arising from
Licensee's appointment of such distributors.


4. Enforcement of Sublicenses. Licensee shall in good faith use reasonable
efforts to enforce the agreements described herein between itself and its
distributors and customers. If Licensee, in INTERACTIVE's sole
discretion, fails to enforce adequately any such agreement required by
this Article 3, INTERACTIVE may, in addition to any other remedies that
it may have, either terminate the agreement with such distributor or
customer or undertake enforcement directly on behalf of INTERACTIVE and
Licensee against the breaching customer or distributor. Licensee will pay
all costs incurred by INTERACTIVE, including but not limited to
attorneys' fees, in enforcing agreements with Licensee's distributors or
customers where Licensee has failed to do so.


SPARC Software Agreement - 4 - 11/08/91


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5. Legends. In addition to any copyright and other proprietary notices
required under Article 8 of this Agreement, Licensee or Licensee's
distributors shall include a prominently displayed legend crediting Sun
and, in the case of derivative software, INTERACTIVE (if INTERACTIVE so
requests) with the ownership, creation and development of the Software
Products on each copy of the Software Products distributed by Licensee
or Licensee's distributors. Such legend must be previously approved in
writing by INTERACTIVE or consistent with prior approved legends. All of
Licensee's or Licensee's distributors' promotional and marketing
materials which mention the Software Products shall include a similar
legend.


6. Limitation of Documentation Distribution. Licensee may distribute no
more than two (2) copies of the Documentation for every copy of the
Software Products in object code form distributed hereunder. Should
Licensee wish to distribute copies in excess of this limitation,
Licensee agrees to account to AT&T directly and to pay all fees due to
AT&T for such additional copies of Documentation.


4. ORDER AND DELIVERY


1. Order, Licensee may submit a written order for the Software Products to
INTERACTIVE for purposes of convenience only. INTERACTIVE rejects any
and all printed terms and conditions contained on any purchase order or
other ordering document submitted by Licensee now or hereafter which are
part of a general form or were not specifically negotiated with
INTERACTIVE for any transaction concerning the Software Products. The
parties' performance under this Agreement shall be governed exclusively
by the terms and conditions contained in this Agreement and any
amendment or extension of it signed by an authorized representative of
both parties.


2. Delivery, Installation and Risk of Loss. INTERACTIVE shall deliver the
Software Products to a common carrier, F.O.B. INTERACTIVE's facilities.
The Software Products will be deemed to be delivered, and Licensee
assumes all risk of loss or damage therefor, upon delivery of the
Software Products by INTERACTIVE to a common carrier. Licensee shall be
solely responsible for installation of the Software Products on the
Designated Equipment.


5. TERM AND TERMINATION


1. Term. Unless terminated earlier as provided hereunder, this Agreement
shall be perpetual with respect to the versions of the Software Products
current as of the Effective Date of this Agreement and any future
versions of the Software Products which the parties agree to incorporate
as part of this Agreement. Licensee's obligation to pay license fees or
royalties accrued prior to the expiration or termination of this
Agreement shall not be terminated by the expiration or termination of
this Agreement. The parties agree that the terms and conditions of this
Agreement shall be treated as confidential and shall not be disclosed
without the prior written consent of the other party, provided, however,
that each party may disclose the terms and conditions of the Agreement;

1. as required by any court or other governmental body;


2. as otherwise required by law;


3. to legal counsel of the parties;


4. in confidence, to accountants, banks, potential or actual investors
and other financing sources and their advisors;


5. in confidence, in connection with the enforcement of this Agreement
or rights under this Agreement; or


6. in confidence, in connection with a merger or acquisition or
proposed merger or acquisition, or the like.


2. Termination.


1. This Agreement may terminate if any of the following Events of
Default occur: (i) if either party fails to perform any material
obligation or materially fails to perform any obligation under this
Agreement, including repeated failure to promptly pay any amount(s)
due under the provisions of this Agreement; (ii) if Licensee
attempts to make an assignment in violation of Section 14.8
("Assignment Prohibited"); (iii) if either party becomes insolvent
or admits in writing its inability to pay its debts as they mature,
or makes an assignment for the benefit of creditors; (iv) if a
petition under any foreign, state, or United States bankruptcy act,
receivership statute, or the like, as they now exist, or as they may
be amended, is filed by either party; or (v) if such a petition is
filed by any third party or an application for a receiver of a party
hereto is made by anyone and such petition or application is not
resolved favorably to said party within sixty (60)days.


2. Upon an Event of Default by one party to this Agreement, the
non-defaulting party shall have the right at its option to terminate
this Agreement. Termination of this Agreement shall be effective (i)
unless otherwise specified herein, sixty (60) days after written
notice from the non-defaulting party pursuant to Section 14.2 hereof
specifying the default ("Default Notice") unless all default(s) are
cured within such sixty-day period; (ii) immediately upon such
notice if defaulting party's default is by its nature not curable
within sixty


SPARC Software Agreement -5- 11/08/91


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(60) days of Default Notice; (iii) immediately upon Default Notice if
Licensee or its distributors violate any provision of the following
sections if such violations are by their nature not capable of being
cured within sixty (60) days of the Default Notice: Articles 2 ("Source
code Grant of Rights and Distribution Restrictions"), 3 ("Object Code
Grant of Rights and Distribution Restrictions") and/or Section 14.8
("Assignment Prohibited"). However, in the event that INTERACTIVE's
suppliers provide a cure period for such a default, INTERACTIVE shall
pass through the same cure period to Licensee if permitted by the
supplier.


3. [Reserved]


4. Licensee understands that pursuant to agreement, INTERACTIVE's suppliers
may require INTERACTIVE to terminate this Agreement if Licensee fails to
fulfill any of its obligations under this Agreement pertaining to any
portion of the Software Products with respect to which INTERACTIVE's
suppliers have granted the right to further sublicense within sixty (60)
days of receipt from INTERACTIVE of a written notice specifying such
failure.


5. [Reserved]


6. Upon any termination, INTERACTIVE shall not have any obligation to
refund any monies paid to it pursuant to this Agreement and
INTERACTIVE's right to payment from Licensee on account of all licenses
and sublicenses granted when this Agreement was in effect shall not be
impaired.


7. [Reserved]


3. The following terms shall apply to termination of this Agreement for any
reason:


(i) No termination of this Agreement shall alter the ownership
rights of the parties described in Article 2 ("Source Code Grant of
Rights and Distribution Restrictions").


(ii) It is understood that any other obligations and rights which by
their nature extend beyond termination of this Agreement shall
survive according to their terms.


4. Continued Use of Software Products. In the event of termination of this
Agreement by INTERACTIVE for Licensee's material breach, the license and
right ...