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OPEN PLATFORM MANAGEMENT ARCHITECTURE
SPECIFICATION LICENSE AGREEMENT
This Open Platform Management Architecture Specification License Agreement
("Agreement") is made by Advanced Micro Devices, Inc., a Delaware corporation, having its
principal place of business at One AMD Place, Sunnyvale, California, 94088 ("AMD"), and the
entity named on the signature page of this Agreement ("Adopter"). This Agreement is effective as
of the date a fully executed original has been received by AMD ("Effective Date").
BACKGROUND
A. AMD has developed a platform architecture which is designed to modularize the
platform hardware manageability subsystem for servers, the Open Platform Management
Architecture. AMD desires to provide the OPMA (defined below) specification to various vendors
and suppliers in a manner that enables compatibility between different vendors' hardware and
software designs implementing OPMA.
B. AMD is the owner or licensee of certain intellectual property rights covering
OPMA and the OPMA Specification and is willing to license such rights to Adopter under the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained
herein and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as
follows:
AGREEMENT
Article 1. Ownership and License Grants
1.1 Ownership. Adopter hereby acknowledges and agrees that AMD, AMD Affiliates, and
AMD's licensors shall retain ownership of all worldwide rights, titles, and interests in and to OPMA
and the OPMA Specification, and all related intellectual property rights embodied therein, subject
to the licenses granted to Adopter in Section 1.2 below.
1.2 Licenses. As of the Effective Date, the following licenses are granted by Adopter to AMD
and all Fellow Adopters (as provided in Section 1.2.2), and the grants of AMD and all Fellow
Adopters shall extend to Adopter. In each case, the party (AMD, Adopter, or Fellow Adopter)
granting the license is referred to as the "Grantor," and the party (AMD, Adopter, or Fellow
Adopter) receiving the license is referred to as the "Grantee." "Fellow Adopters" are all other
entities which have executed, at any time, an agreement substantially similar to this Agreement
and delivered it to AMD.
1.2.1 OPMA. Subject to the terms and conditions of this Agreement, Grantor hereby
grants to Grantees a worldwide, non-exclusive, royalty free, non-transferable license
under Grantor's Necessary Claims, to make, have made, use, import, sell, offer to sell,
lease, and otherwise dispose of Compliant Portions, provided that such license shall not
extend to any part or function of a product that is itself not part of a Compliant Portion.
1.2.2 Extension to Fellow Adopters. AMD may extend the licenses set forth in this
Section 1.2 to any third party Fellow Adopter subject to the terms and conditions set forth
in this Agreement, including but not limited to those set forth in Section 1.3 below.
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1.3 No Implied Licenses. Except as expressly provided in this Agreement, no other rights are
granted by Grantor hereunder by implication, estoppel or otherwise. All rights not expressly
granted by Grantor are reserved to Grantor.
Article 2. Usage of Adopter Name
2.1 Use of Adopter Name. AMD shall have the right to include Adopter's name in any lists,
published by AMD, of entities licensing OPMA.
Article 3. Confidentiality
3.1 Nondisclosure. The parties acknowledge that it may be necessary for AMD to disclose to
Adopter certain confidential and/or proprietary information ("Confidential Information") to
effectuate the purpose of this Agreement. Confidential Information shall include (a) information
provided by AMD to Adopter hereunder that AMD identifies in writing as confidential or proprietary
information, (b) any information provided hereunder, whether orally or in writing, which Adopter
knows or has reason to know is Confidential Information of AMD, and (c) until made publicly
available by AMD, the OPMA Specification and this Agreement. Adopter acknowledges that all
rights to Confidential Information are reserved by AMD, and unless otherwise provided in this
Agreement, Adopter may not disclose or disseminate such Confidential Information to anyone
other than its employees or contractors with a need to know such Confidential Information for
purposes of this Agreement. Adopter will protect the Confidential Information by using the same
degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use,
dissemination, or disclosure of the Confidential Information as it uses to protect its own
confidential information of a like nature.
3.2 Feedback. Adopter may, but is not obligated to, provide AMD with feedback,
suggestions, and improvements regarding the OPMA Specification and drafts thereof for possible
incorporation by AMD or its designee into future versions of the OPMA Specification. Such
feedback, suggestions, and improvements provided to AMD or its designee in writing or through
an Electronic Feedback Forum (defined below in Section 3.3) shall be referred to herein as
"Feedback." AMD or its designee shall be free to incorporate any and all Feedback into the
OPMA Specification, and reserves the right to determine, in its sole discretion, the contents of the
OPMA Specification. Adopter hereby grants to AMD, and AMD accepts, a non-exclusive,
irrevocable, perpetual, worldwide, transferable, royalty-free license, with the right to sublicense,
under Adopter's intellectual property rights in and to any and all Feedback provided by Adopter to
AMD hereunder and incorporated into the OPMA Specification (i) to use, copy, create derivative
works of, publicly display, publicly perform, and distribute such Feedback as part of the OPMA
Specification; and (ii) to use, copy, create derivative works of, publicly display, publicly perform,
distribute, make, have made, sell, have sold, import and otherwise dispose of such Feedback in
Compliant Portions, without attribution or reference to source. The licenses granted under this
Section 3.2 shall survive any termination of this Agreement.
3.3 Information Exchange Forums. In order to promote widespread adoption of OPMA and
facilitate communication among various vendors and suppliers licensed thereto, AMD, may, but is
not obligated to, develop or maintain one or more forums for the electronic interchange of
information between Adopter, AMD and other Fellow Adopters ("Electronic Forums"). Electronic
Forums may include, but are not limited to, users groups, web sites, and mailing lists. One or
more of such forums may be dedicated for the purpose of receiving Feedback ("Electronic
Feedback Forums"). Access to and use of the Electronic Forums may be restricted and subject
to additional terms and conditions provided by AMD. Until such time and to the extent that AMD
deems otherwise, all information disclosed in the Electronic Forums shall be considered
Confidential Information.
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3.4 Exceptions. The obligations of confidentiality set forth in Article 3 of this Agreement shall
not apply to information that: (a) was in Adopter's possession without confidentiality restriction
prior to disclosure hereunder; (b) has become publicly known through no wrongful act of Adopter;
(c) has come into the possession of Adopter without confidentiality restrictions from a third party
and such third party is under no obligation to AMD to maintain the confidentiality of such
information; (d) was developed by Adopter independently of and without reference to any
Confidential Information disclosed by AMD hereunder; or (e) has been approved for release by
written authorization of AMD.
3.5 Disclosure to Employees, Third Parties. Adopter shall have obtained the execution of
proprietary non-disclosure agreements with its employees having access to Confidential
Information, which agreements shall contain obligations at least as restrictive as the restrictions
contained herein, and shall diligently enforce such agreements. Prior to its publication by AMD,
Adopter may provide a copy of the OPMA Specification and an unsigned copy of this Agreement
to a third party only if such third party has executed a written agreement with Adopter that
prevents disclosure and unauthorized use of Confidential Information by that third party, and
obligates such third party to protect such Confidential Information as set forth in Section 3.1.
3.6 Duration. The obligation of confidentiality will survive any termination of this Agreement
and will expire five (5) years following receipt of the Confidential Information.
3.7 Remedies. If Adopter breaches any of its obligations with respect to the non-disclosure
or unauthorized use of AMD's Confidential Information, AMD shall be entitled to seek equitable
relief to protect its interest therein, including but not limited to injunctive relief, as well as money
damages.
Article 4. Disclaimer of Warranties
4.1 Disclaimer of Warranties. ALL MATERIAL, INFORMATION, AND LICENSES
PROVIDED BY AMD AND FELLOW ADOPTERS TO ADOPTER HEREUNDER (INCLUDING,
WITHOUT LIMITATION, THE OPMA SPECIFICATION), AND ALL LICENSES PROVIDED BY
ADOPTER TO AMD AND FELLOW ADOPTERS HEREUNDER, ARE PROVIDED ON AN "AS
IS" BASIS, WITH NO WARRANTIES WHATSOEVER, WHETHER EXPRESS, IMPLIED,
STATUTORY, CONTRACTUAL OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY OTHERWISE ARISING OUT OF ANY
PROPOSAL, SPECIFICATION, OR SAMPLE. FURTHERMORE, NO WARRANTY OR
REPRESENTATION IS MADE OR IMPLIED RELATIVE TO THE VALIDITY OR
ENFORCEABILITY OF ANY PATENT LICENSED HEREUNDER, OR RELATIVE TO FREEDOM
FROM INFRINGEMENT OF ANY THIRD PARTY PATENTS.
Article 5. Exclusion of Damages; Limitations of Liability
5.1 Exclusion of Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE
LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA OR
OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OF
THIS AGREEMENT, INCLUDING BREACH OF WARRANTY, OR IN TORT (INCLUDING
NEGLIGENCE), EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. The foregoing shall not apply, however, to waive any
remedy otherwise available to AMD for injury suffered or to be suffered by AMD as a result of
Adopter's breach of Article 3 of this Agreement.
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5.2 Limitation of Liability of AMD. IF, AT ANY TIME, AMD OR ANY OF ITS AFFILIATES
SHALL HAVE ANY LIABILITY ARISING FROM OR BY VIRTUE OF THIS AGREEMENT, AND
THE PROVISIONS FOR EXCLUSION OF DAMAGES UNDER SECTION 5.1 OF THIS
AGREEMENT DO NOT APPLY, AND WHETHER SUCH LIABILITY IS DUE TO AMD'S OR ITS
AFFILIATE'S NEGLIGENCE, BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT, OR
OTHERWISE, ADOPTER AGREES THAT IN NO EVENT WILL THE TOTAL AGGREGATE
LIABILITY OF AMD AND ITS AFFILIATES FOR ANY CLAIMS, LOSSES, OR DAMAGES
INCURRED BY ADOPTER OR ANY FELLOW ADOPTER EXCEED $1,000. THIS LIMITATION
OF LIABILITY IS COMPLETE AND EXCLUSIVE, SHALL APPLY EVEN IF AMD OR ITS
AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIMS,
LOSSES, OR DAMAGES, AND SHALL APPLY REGARDLESS OF THE SUCCESS OR
EFFECTIVENESS OF ANY OTHER REMEDIES POSSESSED BY ADOPTER, ITS
CUSTOMERS, OR ANY THIRD PARTIES. THIS LIMITATION OF LIABILITY REFLECTS AN
AGREED ALLOCATION OF RISK BETWEEN AMD AND ADOPTER IN VIEW OF THE NATURE
OF THIS TRANSACTION.
Article 6. Termination
6.1 Term. This Agreement shall commence upon the Effective Date, and shall continue until
terminated as provided herein.
6.2 Termination By Adopter. Adopter may terminate this Agreement at any time upon giving
AMD written notice of termination. Termination under this Section 6.2 shall be effective as of the
date that AMD receives such written notice of termination from Adopter. After the effective date
of termination, the licenses granted by Adopter to AMD under Sections 1.2 and 3.2 shall
terminate, except as provided in Section 6.4 below or elsewhere in this Agreement.
6.3 Termination By AMD. AMD may terminate this Agreement upon providing Adopter with
written notice of termination if Adopter is in material breach of this Agreement and Adopter fails to
cure such breach within thirty (30) days after receiving notice to Adopter of such breach and
AMD's intention to terminate. After the effective date of termination, the license granted by AMD
under Section 1.2 shall terminate, except as provided in Section 6.4 of this Agreement.
6.4 Effect of Termination. Notwithstanding termination of this Agreement by either party for
any reason, and subject to the limitations set forth in Section 1.3, the parties acknowledge that
the licenses granted under Sections 1.2 and 3.2 shall remain in full force and effect: (a) for the
version of the OPMA Specification set forth in Exhibit A and any versions of the OPMA
Specification published by AMD more than sixty (60) days prior to the effective date of termination
and (b) for any Feedback provided by Adopter prior to the effective date of termination.
6.5 Survival. All rights and obligations of the parties hereunder shall cease upon termination
or expiration of this Agreement, except as provided in Section 6.4, and except the obligations in
Articles 3, 4, 5, 6 and 7, which shall survive any termination or expiration of this Agreement. No
termination, other than a termination for cause, shall relieve either party from the performance of
any of its responsibilities or obligations that should have been performed prior to such
termination.
Article 7. Miscellaneous
7.1 Governing Law; Jurisdiction; Venue. The laws of the State of California will govern this
Agreement without reference to conflicts of law principles. Jurisdiction and venue for all disputes
relating to this Agreement shall lie with the state and federal courts located in Santa Clara
County, California.
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7.2 No Obligation to Enforce. Nothing contained in this Agreement shall be construed as
imposing on either party any obligation to institute any suit or action for infringement of any of its
intellectual property rights, or to defend any suit or action brought by a third party which
challenges or concerns the validity of any of its intellectual property rights licensed under this
Agreement, or to file any patent application or to secure any patent or maintain any patent in
force.
7.3 Press Release. AMD may issue press releases regarding the parties' relationship and the
nature of this Agreement with Adopter's prior written approval, which shall not be unreasonably
withheld, at any time following the execution of this Agreement.
7.4 Compliance With Export Laws. The parties each agree to comply with all U.S. export
laws in connection with the marketing, sale and distribution of products licensed from the other
party hereunder, including without limitation the Export Administration Regulations administered
by the U.S. Department of Commerce and the International Traffic in Arm Regulations
administered by the U.S. Department of State.
7.5 No Support. Adopter acknowledges and agrees that other than providing Adopter with
the OPMA Specification, AMD is under no obligation to provide additional materials or support to
Adopter.
7.6 Relationship of the Parties. The parties are independent contractors under this
Agreement and no other relationship is intended, including a partnership, franchise, joint venture,
agency, employer/employee, fiduciary, master/servant relationship, or other special relationship.
Neither party shall act in a manner that expresses or implies a relationship other than that of
independent contractor, nor bind the other party.
7.7 Notices. Unless otherwise provided herein, all notices which shall be given by either
party under the provisions of this Agreement shall be in writing and be hand delivered, sent by
facsimile transmission followed with written confirmation by mail, sent by commercial overnight
delivery, or sent by certified U.S. mail (return receipt requested). Notices shall be deemed given
on the date of actual receipt (or refusal of delivery) when hand delivered, upon confirmed
transmission when sent by facsimile, one day after having been sent when sent by commercial
overnight delivery, and three days after having been mailed when sent by certified U.S. mail.
Notwithstanding anything to the contrary in this Section 7.7, any written notice will be effective no
later than the date actually received. Notices shall be addressed as set forth in the signature
page hereto.
7.8 Notice of Publication. AMD shall, at its sole discretion, provide Adopter with notice of
publication for each future version of the OPMA Specification. Such notice may be sent to
Adopter at the address, and in the manner, described in Section 7.7. Alternatively, AMD may
provide email notification of publication to Adopter at the email address provided on the signature
page hereto.
7.9 Entire Agreement; Amendment. This Agreement (including any attached exhibits)
constitutes the final and entire agreement between the parties, and supercedes all prior written
and oral agreements, understandings, or communications with respect to the subject matter of
this Agreement (including without limitation any memorandums of understanding, written
proposals, and term sheets). Notwithstanding the foregoing, nothing in this Agreement shall be
deemed to limit the scope of any license granted in any prior agreement executed between the
parties that is of a broader scope than the licenses granted hereunder. This Agreement may not
be modified except in writing signed by a duly authorized representative of each party. It is
expressly understood and agreed that no employee, agent, or other representative of AMD has
any authority to bind AMD with respect to any statement, representations, warranty, or other
expression unless the same is specifically set forth in this Agreement. It is also understood and
agreed that no usage of trade or other regular practice or method of dealing between the parties
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hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this
Agreement.
7.10 No Waiver. The waiver by either party of any breach of any provision of this Agreement
shall not operate or be construed as a waiver of any other or a subsequent breach of the same or
a different provision.
7.11 Assignment. Neither party shall assign, transfer, or otherwise delegate any of its rights,
duties, or obligations under this Agreement in whole or in part to any individual, firm or
corporation without the prior written consent of the other party, which consent shall not be
unreasonably withheld; provided however, that (a) AMD may assign this Agreement, in whole or
in part, to one or more of its Affiliates or (b) AMD may assign this Agreement to a trade
association or similar entity. Any attempt to assign, transfer or otherwise delegate any of the
rights, duties, or obligations under this Agreement without the prior written consent of the other
party shall be void. Notwithstanding the foregoing, either party may assign its rights, duties, and
obligations hereunder without approval of the other party to a party that succeeds to all or
substantially all of its assets (whether by sale, merger, operation of law or otherwise), provided
that such assignee or transferee agrees in writing to be bound by the terms and conditions of this
Agreement. The rights and liabilities of the parties under this Agreement will bind and inure to the
benefit of the parties' permitted assigns and successors.
7.12 Captions. The captions appearing in this Agreement have been inserted as a matter of
convenience and in no way define, limit or enlarge the scope of this Agreement or any of the
Sections thereto.
7.13 Severability. In the event that any one or more of the provisions of this Agreement is
determined by a court of competent jurisdiction to be invalid, unenforceable or illegal, such
invalidity, unenforceability or illegality shall not affect any other provisions of this Agreement, and
the Agreement shall be construed as if the challenged provision had never been contained
herein. The parties further agree that in the event such provision is an essential part of this
Agreement, they will immediately begin negotiations for a suitable replacement provision.
7.14 Force Majeure. Neither party will be deemed in default of this Agreement to the extent
that performance of its obligations or attempts to cure any breach are delayed or prevented by
reason of any act of God, fire, natural disaster, accident, act of government, shortages of material
or supplies or any other cause beyond the control of such party, provided that such party gives
the other party written notice thereof promptly and, in any event, within thirty (30) days of
discovery thereof and uses good faith efforts to so perform or cure. In the event of such a Force
Majeure, the time for performance or cure will be extended for a period equal to the duration of
the Force Majeure but not in excess of six (6) months.
7.15 Binding. This Agreement shall be binding on the parties, their Affiliates, subsidiaries,
successors, and assigns (if any), and they each warrant that the signatories hereto are authorized
to execute this Agreement on behalf of the respective party.
7.16 No Bias. This Agreement shall be interpreted as written and negotiated jointly by the
parties. It shall not be strictly construed against either party, regardless of the actual drafter of
the Agreement.
7.17 Costs, Attorneys' Fees, and Experts' Fees. In the event any obligation of this Agreement
must be enforced, through litigation or otherwise, the prevailing party will be entitled to recover
reasonable costs and expenses incurred in enforcing the obligation, including costs, reasonable
attorneys' fees and experts' fees.
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7.18 Counterparts and Facsimile. This Agreement may be executed in duplicate and either
copy or both copies are considered originals, but all of which together constitute one and the
same instrument. This Agreement may be executed by facsimile signature.
7.19 Expenses. Each of the parties shall bear its own costs and expenses incurred
hereunder, including, without limitation, travel, employee compensation, and incidental expenses.
Article 8. Glossary
8.1 "Affiliate" means an entity that directly or indirectly Controls or is Controlled by, or is
under common Control with another entity, so long as such Control exists. For purposes of this
Section 8.1, "Control" means control or ownership of (a) more than fifty percent (50%) of an
entity's outstanding shares or stock entitled to vote for the election of directors or similar
managing authority of that entity, or (b) in the case of an entity not having outstanding shares or
securities, more than fifty (50%) of the right to make the decisions for that entity.
8.2 "Compliant Portion" means only those specific portions of products (hardware,
software or combinations thereof) that: (a) implement and are compliant with all relevant portions
of an OPMA Specification, and (b) are within the bounds of the Scope.
8.3 "Feedback" has the meaning given in Section 3.2 of this Agreement.
8.4 "OPMA" means the electrical, mechanical, and firmware interfaces as described in the
OPMA Specification.
8.5 "OPMA Specification" means the specification attached hereto as Exhibit A setting forth
the description and requirements (including, but not limited to, logical and electrical specifications)
for OPMA, and any future version of such specification published by AMD under the title "Open
Platform Management Architecture Specification."
8.6 "Necessary Claims" of a party means those claims of all patents and patent
applications throughout the world to which such party or its Affiliates has the right at any time
during the term of this Agreement to grant licenses without such grant resulting in payment of
royalties or other consideration to third parties (except for payments to Affiliates or employees),
which claims are (a) necessarily infringed by an implementation of the OPMA Specification and
(b) within the bounds of the Scope. Necessary Claims do not include any claims other than
those set forth above even if contained in the same patent as Necessary Claims.
8.7 "Scope" means the protocols, electrical signaling characteristics, commands, and
clocking signals solely to the extent disclosed with particularity in the OPMA Specification where
the sole purpose of such disclosure is to enable products to interoperate, interconnect, or
communicate as defined within the OPMA Specification. Notwithstanding the foregoing, the
Scope shall not include (a) any enabling technologies that may be necessary to make or use any
product or portion thereof that complies with the OPMA Specification, but are not themselves
expressly set forth in the OPMA Specification (e.g., semiconductor manufacturing technology,
X86 architecture, and processor microarchitecture); and (b) the implementation of other published
specifications not developed by or for AMD but referred to in the body of the OPMA Specification.
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Executed by the undersigned authorized representatives of AMD and Adopter, respectively, to be
effective as of the Effective Date.
Adopter Company Name
Signature
Representative Name (Printed)
Title
Date
Advanced Micro Devices, Inc.
Brian Spross
AMD Senior Technology Counsel
Date
AMD Address for Legal Notice: Adopter Address for Legal Notice:
Advanced Micro Devices, Inc. __________________________________
5204 E. Ben White Blvd., M/S 562 __________________________________
Austin, Texas 78741 __________________________________
ATTENTION: CPG Legal __________________________________
Facsimile: 512-602-4932 Facsimile: _________________________
AMD Technical Contact: Adopter Technical Contact:
Dave Tobias Name: _____________________________
800-538-8450 Phone: _____________________________
E-Mail: [email protected] E-Mail: _____________________________
Adopter: Please have an authorized representative sign on behalf of Adopter and fax the
Agreement to AMD Legal, Attention: Sarah Blankenship, Fax No. 512-602-4932. AMD Legal
will return a counter-signed Agreement to Adopter's Legal contact as listed above.
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Open Platform
Management Architecture
Specification
Publication # 32200 Revision: 1.3
Issue Date: January 2008
Advanced Micro Devices