FINANCIAL INFORMATION

EX-10.77 5 a92587exv10w77.txt EXHIBIT 10.77 EXHIBIT 10.77 [MTI LOGO] SOFTWARE LICENSE AGREEMENT ("AGREEMENT") THIS AGREEMENT is made on the 7th day of July 2003 (the "Effective Date"), BETWEEN (1) MTI Technology Corporation, a Delaware, USA, corporation, whose principal place of business is situated at 14661 Franklin Avenue, Tustin, California 92780, USA ("MTI"); and (2) Xyratex International Inc., a company incorporated in England, whose registered office is situated at Langstone Road, Havant, Hampshire, PO9 ISA, England ("Xyratex"). RECITALS: (A) The parties have entered into a Memorandum of Understanding dated 26th June 2003 relating to the provision of certain premises, assets and software from MTI to Xyratex. This Agreement sets out the terms and conditions under which MTI is to license the Software (as defined hereunder) to Xyratex. (B) MTI has agreed to supply Xyratex with the Software. The Software enables Xyratex to test and evaluate products. THE PARTIES AGREE: 1. DEFINITIONS AND INTERPRETATION 1.1 In this Agreement: "DERIVATIVE WORKS" means any modification or adaption to any part of the Software by Xyratex under the terms of this Agreement. "INTELLECTUAL PROPERTY" means any patent, trade mark, design, design rights, copyright, database right, topography rights, moral rights, know how, trade secret and other confidential information, rights in the nature of any of the these items in any country, rights in the nature of unfair competition rights and rights to sue for passing off or other similar intellectual or commercial right (in each case whether or not registered or registrable) and registrations of and applications to register any of the these items. "LICENSE FEE" means a one time, upfront payment of US$200,000 (two hundred thousand US dollars) (exclusive of any value added tax or other taxes or levies). "OBJECT CODE" means any machine executable code derived in whole or in part from the Software. "PERMITTED USE" means, in relation to the Software, to (i) internally use, reproduce, load, analyze, and create Derivative Works of the Source Code for the purpose of testing and evaluating products and integrating the Software and any Derivative Works with Xyratex products and (ii) to reproduce, distribute and sublicense the use of the Software and/or any Derivative Works (with Xyratex products) to third parties. "SOFTWARE" means the software programs (in Source Code and Object Code form) as listed in Schedule A. "SOURCE CODE" means the human readable code, which documents the Software. 2. LICENSE 2.1 Upon the Effective Date, MTI shall supply Xyratex with the Software. From the Effective Date, MTI may invoice Xyratex for the License Fee. Xyratex shall pay the License Fee to MTI within thirty (30) days from the date of MTI's invoice. 2.2 The Intellectual Property, title and interest in the Software supplied to Xyratex is, and shall remain, the property of MTI and the Xyratex is not licensed to use the Software otherwise than expressly provided for in this Agreement. 2.3 With effect from the Effective Date and in consideration of payment of the License Fee by Xyratex to MTI, MTI grants to Xyratex a worldwide, royalty-free, exclusive, perpetual license for Xyratex to use the Software for the Permitted Use. 2.4 The Intellectual Property, title and interest in any Derivative Works created by Xyratex (including its employees or contractors) is and shall remain, the property of Xyratex (subject to MTI's ownership of the underlying Software), MTI has no right or license to any Derivative Works and Xyratex (including its employees and contractors) is not required to disclose any Derivative Works to MTI. 2.5 Xyratex (and its employees or contractors) shall not use the Software (or any revision of the Software that is done by Xyratex under the terms of this Agreement) for any purpose other than the Permitted Use. Xyratex will inform MTI in writing promptly if Xyratex becomes aware of any unauthorized use of the Software. 3. WARRANTY AND SUPPORT 3.1 MTI makes no warranty, express or implied, and disclaims any warranties with respect to the Software, including without limitation, any warranty for fitness for a particular purpose, merchantability, quality or non-infringement. MTI does not warrant that the operation of the Software will be uninterrupted or error free. 3.2 MTI shall not be liable for fixing any errors or providing any type of support (technical or otherwise) in the Software. Any services to be provided by MTI to Xyratex shall be pursuant to the terms and conditions of a separate agreement. 4. LIMITATION OF LIABILITY 4.1 MTI shall not be liable for costs of procurement of substitutes, loss or profits, use or data, interruption of business, or for any other special, consequential, incidental or indirect damages, however caused, whether for breach of warranty, contract, tort, negligence, strict liability, infringement or otherwise. 4.2 Except in the case of fraud or personal injury caused by MTI's negligence, MTI's cumulative liability under this Agreement for all causes of action shall be limited to and not exceed the fees paid (if any) by Xyratex for the license of the Software hereunder, regardless of whether MTI has been advised of the possibility of such damages or any remedy set forth herein fails of its essential purpose or otherwise. 4.3 This section 4 allocates the risks under this Agreement. MTI pricing (if any) reflects this allocation of risk and the limitation of liability specified herein. 5. CONFIDENTIALITY 5.1 MTI and Xyratex have entered into a mutual non-disclosure agreement ("NDA") with NDA number X410. dated 22nd JULY 1997 and the terms of such NDA are hereby incorporated herein and shall govern the disclosure of confidential information under this Agreement. These terms of this Agreement will take precedence over any conflicting term contained in such NDA. 6. TERM AND TERMINATION 6.1 The license granted under this Agreement shall commence on the Effective Date and, unless sooner terminated in accordance with this section 6, shall continue thereafter. Software License Agreement July 7,2003 Page 2 of 5 MTI & Xyratex 6.2 MTI may terminate this Agreement immediately: (a) if Xyratex breaches any confidentiality provisions contained herein or in the NDA referred to in section 5.1 above; (b) if, at any time during the continuance of this Agreement, Xyratex opposes or assists any third party to oppose the validity or MTI's ownership of Intellectual Property in the Software. Either party may terminate this Agreement immediately: (c) upon the other party's insolvency, bankruptcy, reorganization (except for the purposes of a bona fide scheme for amalgamation or reconstruction), or assignment for the benefit of creditors; or (d) in the event of any other material breach by the other party of any provision of this Agreement where the defaulting party fails to correct such breach within thirty (30) days of written notice thereof. 6.3 If this Agreement terminates: (a) Xyratex will immediately deliver to MTI all fees due and owing (if any) as of the date of termination; (b) the license granted in section 2 will immediately terminate; (c) Xyratex will, at MTI's option, either return to MTI the Software, all related documentation and any other confidential information of MTI's, and all copies thereof existing at the date of such termination, or destroy them and certify in writing to MTI that they have been destroyed; (d) notwithstanding the foregoing, Xyratex's right to right to sell, maintain or support products into which the Software or any Derivative Work has been incorporated before the date of termination shall not be affected, except to the extent that such sale, maintenance or support constitutes a breach of this Agreement; and (e) any already existing rights or liabilities of either party will not be affected. 7. GENERAL 7.1 Subject to clause 7.2, the parties shall not assign any portion of its rights or liabilities under this Agreement without the written consent of the other (such consent not to be unreasonably withheld or delayed). 7.2 Each party shall be entitled to assign its respective rights and obligations under this Agreement to an affiliate or to such third party as may purchase all or a substantial part of its assets (or the relevant business division thereof) upon providing the other with prior written notice of such assignment. 7.3 This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, and the parties submit to the non-exclusive jurisdiction of the Courts of California, USA. 7.4 All notices to be given under this Agreement must be in writing and sent to the address of the party as set forth above, Attention: Legal Department, or any other address which the recipient may tell the other in writing. Any notice may be delivered by hand personally or sent by registered mail or by facsimile and will be treated as served: if by hand, when delivered; if by registered mail, 72 hours after posting; and if by facsimile, when dispatched, provided the sender's fax machine produces automatic confirmation of error free transmission to the recipient's fax number. 7.5 A failure by either party hereto to exercise or enforce any rights conferred upon it by this Agreement shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times. 7.6 If any term of this Agreement is determined to be invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, to achieve the intent of the parties to the extent possible. In any event, all other terms shall be deemed valid and enforceable to the maximum extent possible. 7.7 Neither party shall be liable for any loss, damage, or penalty arising from delay due to causes beyond its reasonable control. 7.8 Both parties acknowledge that they have read, understood and agree to be bound by this Agreement, and that this Agreement is the complete and exclusive statement of the agreement between the parties regarding the subject matter hereof, which supersedes all proposals, oral or written, all other communications between the parties relating to such subject matter save for fraudulent misrepresentations. 7.9 This Agreement may be modified only by a written instrument duly executed by an authorized representative of MTI and Xyratex. Software License Agreement July 7,2003 Page 3 of 5 MTI & Xyratex 7.10 This Agreement is not intended to be for the benefit of, and shall not be enforceable by, any person who is not a party to it, under the Contracts (Rights of Third Parties) Act 1999 or otherwise and neither party can declare itself a trustee of the rights under it for the benefit of any third party. IN WITNESS the parties have signed this Agreement on the date referred to above. SIGNED by MARK FRANZEN ) /s/ Mark Franzen CHIEF FINANCIAL OFFICER ) ------------------------------- for and on behalf of ) 8-4-03 MTI TECHNOLOGY CORPORATION ) SIGNED BY STEVE BARBER ) /s/ Steve Barber CEO ) ------------------------------- for and on behalf of ) XYRATEX INTERNATIONAL INC. ) Software License Agreement July 7,2003 Page 4 of 5 MTI & Xyratex SCHEDULE A SOFTWARE PLEASE SEE ATTACHED SOFTWARE LIST HEADED "SOFTWARE" AS INITIALLED BY MTI AND XYRATEX. Software License Agreement July 7,2003 Page 4 of 5 MTI & Xyratex Software

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