X INTEROPERABILITY CENTER AGREEMENT May 15, 1994 This agreement (the "Agreement") by and among X Consortium, Inc., a Delaware corporation ("Consortium") and the signatories hereto evidences that: WHEREAS, the Participants (as hereinafter defined) desire to sell products to consumers which interoperate with a broad variety of other hardware and software products based upon the X Window System, and thereby increase the selection of computer products available to consumers; WHEREAS, the parties desire an efficient means to test the interoperability of hardware and software products based upon the X Window System; WHEREAS, the parties wish to create a relationship among themselves that will be conducive to this goal; NOW THEREFORE, in consideration of the premises, and the mutual obligations and covenants set forth herein, the parties agree as follows: ARTICLE I. Section 1.1 Definitions. As used in this Agreement, the terms set forth below will be deemed to have the following meanings: "Agreement" will mean this agreement. "Member" will mean a member of the Consortium. "Center" will mean the facility established by the Consortium (initially at 1 Memorial Drive, Cambridge, Massachusetts) to house the hardware and software of the Participants that will be utilized in Testing. "Employee" will mean any employee, agent, contractor or consultant of a Participant. "Participant" will mean a party to this Agreement. "Minimum Participation Period" will mean a period of 6 months commencing from the installation of a Product in the Center. "Confidential Information" will mean information, including programs and documentation, that is designated as confidential or proprietary and usually disclosed only upon a promise by the recipient to protect the "secrecy" of the information. It may include technical data, know-how, concepts, and business information deemed to represent competitive or other advantage. "Product" will mean the hardware and/or software that is manufactured, assembled or distributed by a Participant, that hosts or includes programming libraries, application software or server software based upon the X Window System and is installed in or deposited in the Center by a Participant for the purpose of conducting Testing. "Test" or "Testing" will mean actions taken by a Participant or Participants directed at determining the interoperability of hardware or software based upon the X Window System. Testing will not include a Participant's modification of, or alteration of another Participant's Product to enhance the interoperability of that Product. "Test Results" will mean information obtained from Testing. ARTICLE II. Section 2.1 Participation. The Center will be available for Testing only by Participants. The following shall be deemed to be "Qualified Applicants" to become Participants: (a) any Member which develops, manufactures, assembles or distributes hardware or software based upon the X Window System, and (b) any company or other entity which develops, sells or licenses software products based upon the X Window System but which does not manufacture, assemble, distribute, sell, lease or resell computer hardware systems or components of any nature, provided that in the case of (b), such company or other entity shall automatically cease to be a Participant if it does not become a Member within twelve months of becoming a Participant. To become a Participant, a Qualified Applicant must execute and deliver to the Consortium an addendum to this Agreement in the form attached as Exhibit 2.1. Each party to this Agreement agrees to Qualified Applicants becoming a party to this Agreement upon execution and acceptance by the Consortium of such addendum. Section 2.2 Participant's Commitments. Each Participant will honor its obligations under this Agreement commencing on such Participant becoming a party to this Agreement. Each Participant will install at least one Product (software or hardware as applicable) in the Center for at least the Minimum Participation Period within 60 days of becoming a Participant. This Product must be the most current version commercially offered by the Participant (or, if the Participant has no commercially available version, a reliable development version of the Product) and must possess sufficient mass data storage to support at least the Participant's own development and Testing need. In addition, each Participant will provide detailed instructions regarding the use of their software and/or hardware and documentation such that Participants can effectively utilize all Products at the Center. A Participant may withdraw from further participation in the Center upon 14 days prior written notice to the Consortium. Section 2.3 Breach of this Agreement. (a) Access Breaches. The Participants acknowledge that proprietary information of the Consortium and third parties may from time to time be located at the Center, and at all times will be located in the Consortium's area immediately surrounding the Center. Accordingly, the Participants agree that they will instruct their employees and any other persons who they authorize to gain access to the Center in the manner provided for by this Agreement to restrict their activities to the Center, to not enter any adjacent Consortium areas unless accompanied by an employee of the Consortium, and to otherwise abide by all such rules as may be distributed from time to time pursuant to Section 3.12 below. The Participants further agree that if at any time the Consortium believes that there has been any unauthorized access to the Center or to the Consortium's adjacent areas, or any other breach of security rules, that the Consortium shall be permitted to require all persons in the Center to leave until a determination can be reached as to whether the confidential information of any entity or person has been compromised. In the event that the Consortium believes in good faith that an individual has violated this Section 2.3(a), the Consortium shall be entitled to bar access by such individual to the Center and the Consortium's facilities, but in each case subject to Section 2.3(b) below. (b) Breaches Generally. Any Participant accused of materially breaching this Agreement, or whose Employee or other authorized representative the Consortium believes has breached Section 2.3(a) above, will be provided with a written notice by the Consortium setting forth the details of the alleged breach in a timely manner. A Participant so accused of a breach may respond in writing no later than fifteen (15) business days after the notice is received. Based upon the information provided in the response the President shall either restore the accused Participant's access to the Center or call a meeting or conference of all Participants to adjudicate the violation. The President of the Consortium shall select the time, place and venue for the meeting, which may occur by or include participation via teleconferencing and/or electronic mail. If a majority of all Participants concur at this meeting that a material breach of this Agreement has occurred, the accused Participant's rights and privileges in the Center may be rescinded, or such lesser action may be mandated by those participating in the meeting. In the latter event, the accused Participant may elect to comply with the action, or may withdraw from this Agreement. Section 2.4 Reinstatement. A Participant who has been found to have breached this Agreement in accordance with Section 2.3 will again become eligible to be a Participant upon (a) the assent by vote of two-thirds of the Participants and (b) execution of a new addendum in accordance with Section 2.1. Section 2.5 Termination by Consortium. This Agreement may be terminated with respect to all Participants by the Consortium at any time upon 90 days written notice, but in no event earlier than January 1, 1995. Any Participant which ceases to be a Member for any reason, or fails to become a Member of the Consortium as provided for by Section 2.1(b) above in timely fashion, shall automatically cease to be a Participant under this Agreement as of the same date. Section 2.6 Removal of Products. Upon cessation of participation in the Center (in accordance with Sections 2.2, 2.3 or 2.5) a Participant shall remove its Products from the Center within 90 days. If the Participant fails to so remove its Products the Consortium may dispose of them in any manner which it elects without liability to the Participant. ARTICLE III. Section 3.1 Interoperability Center. Participants agree to utilize the Center in accordance with the terms of this Agreement. The Center will include certain utilities necessary to operate Products. The Consortium will provide security for the Center equivalent to that provided by the Consortium for its comparable facilities. The Consortium will provide maintenance and support for the Center network during normal Consortium working hours. Participants will be permitted to utilize the Center 24 hours per day. Non-Participants will not be permitted to utilize the Center. Connections from the Center to the Internet will be established by and will be maintained by the Consortium. Each Participant will provide the Consortium with such information as may be necessary to enable the other Participants to communicate with it through the Internet including, without limitation, the name and Internet mailing address of a designated interoperability liaison and a designated liaison to whom Product malfunction/ maintenance problems may be reported. Section 3.2 Interoperability Testing. Each Participant, including the Consortium, that wishes to Test the interoperability of its Products with the Products of another Participant will be responsible for notifying all Participants via a Consortium- maintained Internet mail alias, at least five (5) business days prior to conducting Testing. This notice will identify the Products to be Tested and the times at which Testing will take place. Each Participant will be responsible for contacting other Participants to arrange for any special needs. Each Participant will also be responsible for verifying, related to planned Testing, scheduling and availability, the existence of sufficient mass data storage to enable the Testing to be performed, obtaining operating assistance and discussing any required Product modifications. No Participant may make any modification to the Product of another Participant without the prior written consent of that Participant. Each Participant will indemnify the other Participants against and hold them harmless from, any damage caused to Products resulting from Testing; provided, no Participant will be liable for ordinary wear and tear to a Product resulting from Testing. Section 3.3 Product Maintenance and Support. Each Participant will maintain those of its hardware Products installed in the Center in accordance with the maintenance standards specified for the Participant's customers. Each Participant will support those of its software Products deposited in the Center on a reasonable effort basis. Section 3.4 Scheduling. A Participant who has installed or deposited a Product in the Center will at all times have priority to conduct Testing with that Product. However, such right of preemption shall not be used to materially deny access by other Participants to a Product. Section 3.5 No Cost Use of Product. Except for costs related to modification of a Product requested by a Participant, no Participant will charge any other Participant a fee for use of a Product installed in or deposited in the Center, if the product is used solely for Testing by the other Participant in accordance with the terms of this Agreement. Section 3.6 Title to Products and Risk of Loss. Each Participant will retain full ownership of and title to all Products that it installs or deposits in the Center, and any modifications of such Products. Each Participant will bear all risk of loss to the Products that it installs or deposits in the Center other than damages of the type addressed in Section 3.2. Each Participant releases and forever discharges the Consortium from any and all claims or causes of action which it may have arising out of or attributable to damage to such Participant's Products including damage resulting from or attributable to the Consortium's own negligence, unless the damage results from or is attributable to the Consortium's gross negligence or willful misconduct. Section 3.7 Liability. Each Participant acknowledges that the Consortium is making the Center available to the Participants as a service and not for profit reasons, and has not undertaken responsibility for supervising use of the Center by Participants or their Employees or guests. Accordingly, each Participant hereby releases and forever discharges the Consortium from any and all claims or causes of action which it or any of its Employees may in the future have arising out of or attributable to (a) its or any of its Employees' use of the Center or the Products of others (including product liability claims), or (b) the actions of any Employees of other Participants, and will indemnify the Consortium for any and all damages and costs (including reasonable attorney fees) resulting from the same, or from any claims by others (including without limitation Employees of the Consortium or other Participants) arising from or attributable to the Products of such Participant or its own Employees. Section 3.8 Use of Products in Good Faith. Each Participant will utilize the Products of the other Participants solely for the purpose of Testing and will not copy, reverse assemble, decompile or otherwise disassemble Products for the purpose of discovering trade secrets of the other Participants, or for any other purpose. Section 3.9 Products. Each Participant will keep the Consortium advised of the Products that it installs or deposits in the Center. The Consortium will maintain a current listing of such Products. This list will be available for review by any Participant via Internet access. Section 3.10 Confidential Information. Participants do not wish to receive any Confidential Information of another Participant and/or any third party in connection with Testing conducted at the Center. Any information a Participant discloses to another Participant in connection with such Testing will not be confidential to it and/or any third party, and other Participants will not be obligated to retain any such information in confidence except in accordance with this Agreement. A Participant may disclose Confidential Information to another Participant only if an appropriate written agreement is executed by the Participants involved in the disclosure. Participants will not be obligated to leave their non-commercially available Products at the Center if, in a Participant's reasonable judgement, Testing of its Product by another Participant might result in disclosure of Confidential Information. Except as may relate to the identification of the Participants as Participants, nothing contained in this Agreement will confer any rights to use any name, trade name, or other designation of any other Participant in advertising, publicity, or other marketing activities, without the written approval of that Participant. No Participant will be obligated to disclose any particular information to another Participant except as required by this Agreement. Section 3.11 Test Results. A Participant will provide a non-confidential description of Test Results from the Tests it conducts to any Participant whose Product was used during the Tests if the Participant whose Product was used requests such a report prior to the Testing. Section 3.12 Operational Rules. Each Participant acknowledges that reasonable operational rules may be drafted from time to time to ensure the proper operation of the Center. In addition, each Participant agrees to abide by such reasonable rules as the Consortium may distribute from time to time relating to the maintenance of security at the Center and the Consortium's adjacent areas. ARTICLE IV. Section 4.1 Comparability. Participants will not disclose any data relating to the comparability of Product performance gained directly or indirectly from Testing at the Center without prior written approval from the Participant(s) whose Product(s) were involved. Participants will not disclose to any non- Participants any data relating to the comparability of Product capability gained directly or indirectly from Testing at the Center without prior written approval from the Participant(s) whose Product(s) were involved. Section 4.2 Access to the Center. Consortium Employees will be permitted to use the Center without notice for purposes other than Testing. No Participant may bring to the Center any person who (a) is not an Employee of the Participant or (b) who intends to publish an article regarding the Center, the X Window System or any of the Products unless such Participant gives all other Participants not less than 5 business days prior notice via a Consortium-maintained Internet mail alias of its intention to do so. This notice will include the name of the person, the employer of the person and the reason for the visit. No Product may be Tested for or in the presence of such person without the prior written consent of the Participant who installed or deposited the Product in the Center. Section 4.3 Confidentiality. Each Participant will be solely responsible for safeguarding any of its confidential information that it leaves in the Center. Section 4.4 Passwords. Each Participant will provide to the Consortium's administrative personnel supporting the Center sufficient password access to deal with system administration problems. Each Participant will provide guest accounts and password access as required to enable other Participants to conduct Testing. All such password access information shall be deemed Participant's confidential information. Section 4.5 Enforcement. The Consortium will not be responsible for enforcing compliance with any provisions of this Agreement and will not have any liability if it is breached by a Participant or any person brought to the Center by a Participant. ARTICLE V. Section 5.1 Suitability of Center. Each Participant represents and warrants that it has examined the Center and is familiar with the facilities it offers. Each Participant will bear all mutually agreed upon costs required to modify the Center to accommodate the Participant's Products. Notwithstanding the foregoing, the Consortium is not obligated to permit any modification of the Center that it, in its sole discretion, deems undesirable. The Consortium is not required to maintain any special operating environment or utilities for any Product beyond that currently maintained at the Center. ARTICLE VI. Section 6.1 Representations and Warranties. Each Participant, to induce the other Participants to enter this Agreement and to consummate the transactions that it contemplates, hereby represents and warrants as follows: (a) The Participant (if not a natural person) is duly organized, validly existing and in good standing under the laws of the state of its organization and has full power and authority to own and lease its properties and to carry on its business as presently conducted. (b) The execution, delivery and performance of this Agreement and the consummation of the transactions that it contemplates does not and will not result in the breach of any term or provision of or constitute a default under any material indenture, mortgage, deed of trust, contract, agreement, lease or other commitment or instrument to which the Participant is a party or by which it or its assets or properties are bound and does not and will not constitute an event that with the lapse of time or action by a third party could result in any default under any of the foregoing. (c) The execution, delivery and performance of this Agreement and the consummation of the transactions that it contemplates, will not violate any provision of, or constitute default under, any applicable law, rule or regulation, or any applicable court order, writ, injunction or decree, of any court or other governmental agency or instrumentality applicable to or binding upon the Participant. (d) The Participant has full power, authority and legal right to enter into this Agreement and to consummate the transactions that it contemplates. This Agreement has been duly authorized by all requisite action of the Participant. Upon execution and delivery of this Agreement, it will be a valid and binding obligation of the Participant enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally. Notwithstanding the foregoing, no representation or warranty is made regarding the availability of equitable remedies. Section 6.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NO PARTICIPANT MAKES ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING ITS PRODUCTS. WARRANTIES REGARDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT ARE EXPRESSLY DISCLAIMED. ARTICLE VII. Section 7.1 Applicable Law. IN CONNECTION WITH ANY DISPUTE INVOLVING X CONSORTIUM, INC., THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (EXCLUSIVE OF CONFLICTS OF LAW PRINCIPLES) AND WILL, TO THE MAXIMUM EXTENT PRACTICABLE, BE DEEMED TO CALL FOR PERFORMANCE IN MIDDLESEX COUNTY, MASSACHUSETTS. FEDERAL AND STATE COURTS WITHIN THE COMMONWEALTH OF MASSACHUSETTS WILL HAVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES HERETO AND X CONSORTIUM, INC., WHETHER IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT. IN CONNECTION WITH ANY DISPUTE INVOLVING X CONSORTIUM, INC., THE PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS. VENUE IN ANY SUCH DISPUTE, WHETHER IN FEDERAL OR STATE COURT, WILL BE LAID IN MIDDLESEX COUNTY, MASSACHUSETTS. Section 7.2 Gender. Words of any gender used in this Agreement will be held and construed to include any other gender, and words in the singular number will be held to include the plural, unless the context otherwise requires. Section 7.3 Entire Agreement. This Agreement represents the parties' entire agreement with respect to its subject matter and supersedes and replaces any prior agreement or understanding with respect thereto. Section 7.4 Amendment. This Agreement may be amended only in writing with a majority of the Participants signing the amendment and with the written consent of the Consortium; provided, however, all Participants will be given no less than 30 days notice prior to the effectivity of the amendment; provided further, any Participant may withdraw from this Agreement, without liability for withdrawal, during the foregoing 30-day period. Section 7.5 CounterParts. This Agreement may be executed in multiple counterparts, each of which will be deemed to be an original and all of which will be deemed to be a single agreement. This Agreement will be considered fully executed as to a given party when that party has executed an identical counterpart, notwithstanding that all signatures of all parties may not appear on the same counterpart. Section 7.6 Severability. If any of the provisions of this Agreement are determined to be invalid or unenforceable, the invalidity or unenforceability will not invalidate or render unenforceable the remainder of this Agreement, but rather the entire Agreement will be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the parties will be construed and enforced accordingly. The parties acknowledge that if any provision of this Agreement is determined to be invalid or unenforceable, it is their desire and intention that the provision be reformed and construed in such manner that it will, to the maximum extent practicable, be deemed to be valid and enforceable. Section 7.7 Third Parties. Except as set forth or referred to herein, nothing in this Agreement is intended or will be construed to confer upon or give to any party other than the parties and their successors, if any, any rights or remedies under or by reason of this Agreement. Section 7.8 Assignment. Neither this Agreement nor any rights hereunder may be assigned, except to a corporate parent, or to a subsidiary more than 50% owned by the Participant. Any attempted assignment in violation of the immediately preceding sentence will be void. Section 7.9 Survival of Representations and Warranties. The representations and warranties contained herein will survive for the duration of the Participant's participation in this Agreement. Section 7.10 Scope. Nothing in this Agreement shall be construed to limit any Participant's right to participate in other consortiums or develop or market products or technologies based on other standards. IN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date first above written. X CONSORTIUM, INC. Signature: _______________________________________ Name: ____________________________________________ Title: ___________________________________________ EXHIBIT 2.1 ADDENDUM This addendum (the "Addendum") evidences that, upon execution and delivery by the undersigned and acceptance by X CONSORTIUM, INC. ("Consortium"), the undersigned will be deemed to be a party to that certain X Interoperability Center Agreement, dated May 15, 1994, by and among the Consortium and certain other parties. Without limiting the generality of the foregoing, the undersigned will thereafter be deemed to be a "Participant" within the meaning of the X Interoperability Center Agreement and will be subject to the obligations and entitled to the benefits of a Participant. IN WITNESS WHEREOF, the undersigned has executed this Addendum as of this __ day of ____________ 19__. Company: __________________________________ Signature: ________________________________ Name: _____________________________________ Title: ____________________________________ Accepted this ___ day of ___________ 19__ X CONSORTIUM, INC. Signature: _________________________________________ Name: ______________________________________________ Title: _____________________________________________