EXHIBIT 10.5
- --------------------------------------------------------------------------------
SOFTWARE LICENSE AGREEMENT
- --------------------------------------------------------------------------------
This Agreement is made and signed on this the 17th day of April, 2001.
BY AND BETWEEN
MARNETICS LTD., a company duly organized under
the laws of Israel, having its principal place
of business at 10 Hayitzira Street, Raanana,
Israel (hereinafter - "MARNETICS")
OF THE FIRST PART
A N D
SPEEDWISE TECHNOLOGIES LTD., a company duly
organized under the laws of Israel, having its
principal place of business at 10 Hayitzira
Street, Raanana, Israel (hereinafter - "SPEEDWISE")
OF THE SECOND PART
WHEREAS Marnetics is the owner of certain computer programs and related
documentation as detailed in EXHIBIT "A" attached hereto; and
WHEREAS Marnetics desire to grant to Speedwise and Speedwise desires to
obtain, a non-exclusive license to use such software and related
documentation on the terms and conditions set forth below.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 "DOCUMENTATION" means the documents relevant to the use of the
Licensed Software.
-2-
"Documentation" includes, without limitation,
user guides, manuals and other materials.
1.2 "LICENSED SOFTWARE" means the programs and software products as
described in Exhibit "A" attached hereto.
1.3 "USE" means the right to integrate the Licensed
Software within Speedwise's product and to
sub-license the Licensed Software as part of
and integrated in Speedwise's Products, in the
fields and areas as detailed in Exhibit "B"
attached hereto.
1.4 "THE PRODUCT" means the product developed by Speedwise which
contains the Licensed Software.
2. GRANT OF LICENSE
2.1 Marnetics hereby grants and Speedwise hereby accepts, subject to
the terms hereinafter set forth a non-exclusive license to Use the
Licensed Software and the Documentation, all as set forth in this
Agreement.
2.2 Except as expressly permitted by statute, Speedwise shall not
disassemble, decompile or reverse engineer the Licensed Software.
3. TERMS
3.1 This Agreement is signed for an unlimited period commencing on the
date of the execution of this Agreement.
3.2 Notwithstanding the above licenses and sublicenses, for the
Licensed Software enabled pursuant to the terms and conditions of
this Agreement and paid for by Speedwise, are perpetual licenses,
and shall continue to exist after the termination of this
Agreement.
3.3 Each party shall have the right to terminate this Agreement if the
other party violates a material provision of this Agreement
("EVENT OF DEFAULT"). Upon the occurrence of an Event of Default,
a party shall deliver to the defaulting party a notice of intent
to terminate that identifies in detail the Event of Default. If
the Event of Default remains uncured during thirty (30) days, the
party may terminate this
-3-
Agreement by delivering to the defaulting party a notice of
termination that identifies the effective date of the termination,
which date shall not be less than thirty (30) days after the date
of the delivery of the notice of intent to terminate.
3.4 Within ten (10) days after termination of this Agreement,
Speedwise shall return the code for the Licensed Software and all
copies thereof, delete or destroy all other copies of the Licensed
Software and deliver to Marnetics a certification in writing that
the Licensed Software has been returned, all copies deleted or
destroyed and its Use discontinued.
4. LICENSE FEE AND PAYMENT TERMS
4.1 In consideration of the granting of the license to Use pursuant to
this Agreement, Speedwise shall pay Marnetics license fees which
shall be generated from the revenues as detailed in Exhibit "C"
attached hereto (hereinafter - "THE LICENSE FEE").
4.2 License Fees and charges shall be stated and paid in US Dollars.
4.3 All invoices shall be paid within thirty (30) days of Speedwise's
receipt of payment by the purchaser of the Product.
4.4 The fees shall not be paid out of the overheads and other payments
that Speedwise shall receive including, but not limited to,
maintenance fees, support and installation fees, etc.
4.5 Furthermore, Speedwise shall submit to Marnetics a quarterly
report regarding the sales of the Product.
5. PROPERTY RIGHTS
5.1 Marnetics shall solely own and have exclusive worldwide right,
title and interest in and to all patents, trademarks, service
marks, copyrights, mask works, trade secrets and all other
intellectual and industrial property rights in any way related to
the Licensed Software and/or the Documentation ("MARNETICS'
PROPRIETARY RIGHTS"). Title to all Marnetics' Proprietary Rights
embodied in the Licensed Software shall always remain with
Marnetics, and Speedwise's Use thereof shall be restricted under a
non-exclusive license granted to Speedwise under this Agreement.
Subject to Speedwise's performance of all obligations hereunder,
Marnetics hereby
-4-
grants to Speedwise a non-exclusive, non-transferable and
indivisible license to Use Marnetics' Proprietary Rights only as
they are integrated in Speedwise's products and for no other
purpose.
5.2 Both Parties hereby agree that Speedwise shall not be entitled and
be prohibited from transferring, assigning, selling or make any
other disposition with any of the source codes that Speedwise
shall obtain from Marnetics pursuant to the grant of license,
according to this Agreement, and that the source codes shall be
kept under Speedwise's exclusive provision.
5.3 Notwithstanding the aforesaid, title to all modifications,
improvements and derivation works related to the Licensed Software
performed solely by Speedwise ("THE IMPROVEMENTS") shall remain
with Speedwise who shall have all proprietary and Intellectual
property rights in the Improvements.
5.4 Licensed Software shall bear Marnetics' copyright notice,
tradename and trademark as given to Speedwise by Marnetics.
5.5 Speedwise shall not remove Marnetics' trademark notices, copyright
notices, patent marking or mask work notices on any other
materials supplied by Marnetics. This paragraph 5 shall survive
the termination of this Agreement, and shall be specifically
enforceable by injunctive and other relief against Speedwise in
the event of Speedwise's breach since both parties agree that
Marnetics will be irreparably harmed and money damages would be
inadequate compensation to Marnetics for Speedwise's breach. In
the event of such breach, Marnetics shall be entitled to
injunctive relief against Speedwise in addition to any other
remedies to which it is entitled.
6. LIMITATION OF LIABILITY
6.1 MARNETICS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
SPECIAL OR EXEMPLARY DAMAGES SUFFERED BY SPEEDWISE AND/OR ANY
CUSTOMER RELATED TO OR ARISING OUT OF THIS AGREEMENT. THE
TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE USE OR INABILITY TO
USE THE LICENSED SOFTWARE, INTEGRATION OF THE LICENSED SOFTWARE
WITH EQUIPMENT NOT PROVIDED BY MARNETICS, LOSS OF GOODWILL OR
PROFITS AND/OR FROM ANY OTHER
-5-
CAUSE WHATSOEVER, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
6.2 Marnetics' liability to Speedwise under any provision of this
Agreement, shall be limited to the amount actually paid by
Speedwise to Marnetics for License Fees pursuant to this
Agreement. The existence of more than one claim shall not enlarge
or extend the limit.
6.3 The above limitation of liability does not apply:
6.3.1 if and to the extent that Speedwise, as a result of
Marnetics' default or breach of contract becomes exposed
to claims of third parties resulting from an Infringement
of any intellectual property regarding the Licensed
Software;
6.3.2 with respect to damages caused by Marnetics' gross
negligence or willful acts.
7. INFRINGEMENT INDEMNITY
7.1 Marnetics shall, at its own expense, defend or, at its option,
settle any claim, suit or proceeding brought against Speedwise on
the issue of infringement of any patent, trade name, trademark,
trade secret, copyright or other proprietary rights of any third
party by the Use of any of the Licensed Software, pursuant to the
terms of this Agreement ("INFRINGEMENT"). Marnetics shall
indemnify Speedwise against any costs, expenses or damages caused
by an Infringement, provided that Speedwise promptly notifies
Marnetics in writing of the Infringement.
7.2 If the Licensed Software is, or in Marnetics' opinion likely to
become, the subject of a claim, suit or proceeding of
Infringement, Marnetics may:
7.2.1 procure for Speedwise, at no cost to Speedwise, the right
to continue Usage of the Licensed Software; or
7.2.2 replace or modify the Licensed Software at no cost to
Speedwise to make it non-infringing, provided that the
same function is performed by the replacement or modified
Licensed Software.
In the event that Martnetics will not be able to provide Speedwise
with the right to continue usage of the Licensed Software,
Speedwise will forthwith not take any further commitment on its
usage.
-6-
8. CONFIDENTIALITY AND NON-DISCLOSURE
8.1 Both parties acknowledge that in the course of performing their
respective obligations hereunder, they shall be receiving
information which is proprietary and confidential to the
disclosing party and which the disclosing party wishes to protect
from public disclosure ("PROPRIETARY INFORMATION"). Proprietary
Information as used herein includes, without limitation, all
information marked as confidential and disclosed at any time
before, after or at the time of execution of this Agreement
relating to the Licensed Software, Speedwise's Use of the Licensed
Software and any other confidential information or trade secrets
which have been or shall be disclosed between the parties relating
to their respective businesses, customers, products, marketing and
sales plans, financial status, product development plans,
strategies and the like.
8.2 Each party shall:
8.2.1 hold such Proprietary Information in confidence and not
disclose it, except to its employees or representatives to
whom disclosure is necessary to effect the purposes of
this Agreement and who are similarly bound to hold the
Proprietary Information in confidence;
8.2.2 use its best efforts to prevent inadvertent or
unauthorized disclosure, publication or dissemination of
any Propriety Information;
8.2.3 not make any use of any Propriety Information nor
circulate proprietary Information in its organization,
except to the extent necessary to carry out the intent of
this Agreement.
8.3 Nothing in this Agreement shall be interpreted as placing any
obligation of confidence and non-use on a party with respect to
any Proprietary Information that:
8.3.1 can be demonstrated to have been in the public domain as
of the effective date of this Agreement or comes into the
public domain during the term of this Agreement through no
fault of such party; or
8.3.2 can be demonstrated by clear and convincing evidence to
have been independently developed by such party; or
-7-
8.3.3 is rightfully received by such party from a third party
not under an obligation of confidence to the other party
hereto with respect thereto.
9. ASSIGNMENTS
Each party shall have the right to assign or otherwise transfer its rights and
obligations under this Agreement to anyone, only, as part of the sale or
transfer of such a Party's business or of any part thereof, or pursuant to any
merger, consolidation or reorganization. In case of an assignment or transfer to
a third party, each party shall promptly inform the other party thereof and
shall effect the assignment or transfer only after the other party's prior
written approval, each party shall not unreasonably deny its approval.
10. FORCE MAJEUR
Neither party shall be liable to the other party for delays in the performance
of this Agreement caused by unforeseen circumstances beyond its control,
including, but not limited to, acts of God, wars, riots, strikes, fires, floods,
or other causes beyond a party's reasonable control. In the event of any such
delay, the date of performance of delivery shall be deferred for a period equal
to the time lost by reason of delay. A party shall notify the other party in
writing of any such events or circumstances promptly after their occurrence.
11. MISCELLANEOUS
11.1 All notices, requests and demands to be given, made or provided
for under this Agreement shall be in writing and deemed to have
been duly given;
11.1.1 by its personal delivery; or
11.1.2 by its being sent by facsimile, confirmed in writing by
registered mail, return receipt requested;
and addressed as follows:
To: Speedwise
10 Hayiztira Street, Raanana, Israel
Attn: CEO
To: Marnetics
10 Hayiztira Street, Raanana, Israel
Attn: CEO
-8-
or such other address or such other address as either party may
designate by notice given as aforesaid, provided that notice of a
change in address shall not be effective until it is actually received.
11.2 If any provision of this Agreement shall be held void, voidable,
invalid or inoperative, no other provision of this Agreement shall
be affected as a result thereof and, accordingly, the remaining
provisions of this Agreement shall remain in full force and effect
as though such a void, voidable, invalid or inoperative provision
had not been contained herein. In such event, the parties agree to
negotiate in good faith substitute provisions which shall most
nearly effect the parties' original intent in entering into this
Agreement.
11.3 The validity, construction and performance of this Agreement shall
be governed exclusively by the laws of the State of Israel.
11.4 All disputes out of or relating to this Agreement shall be
resolved in accordance with the following provisions:
11.4.1 In the event of a dispute, the principals of either party
shall meet and attempt in good faith to resolve such
dispute. This duty to attempt to resolve a dispute in good
faith shall continue for at least thirty (30) days after
one party requests a meeting for the purpose of resolving
a dispute. If, after thirty (30) days the parties are
unable to resolved their dispute amicably, then either
party may submit to the other an arbitration demand.
Arbitration shall be conducted in accordance with the
Israeli Rules of Arbitration Act, 1968, of the
International Chamber of Commerce.
11.4.2 The prevailing party in arbitration shall be entitled to
recover from the other party its reasonable attorneys'
fees and costs incurred herein.
11.5 This Agreement and the Exhibits hereto constitute the entire
agreement between the parties concerning the subject matter
hereof. It supersedes any proposal or prior agreement, oral or
written, and any other communication and may only be modified in a
writing signed by both parties.
-9-
IN WITNESS WHEREOF, the parties have caused this License Agreement to be
executed by their undersigned and duly authorized representative on the day and
year first above written.
SPEEDWISE MARNETICS
Signed by: Signed by:
/s/ Dan Gilat /s/ Moshe Kessner
- ----------------------------------- -----------------------------------
Dan Gilat Moshe Kessner
/s/ Amit Mattatia /s/ David Sheetrit
- ----------------------------------- -----------------------------------
Amit Mattatia David Sheetrit
E X H I B I T A
1. LOCAL ACKNOWLEDGMENT (LOCALACK) - This module generates TCP
acknowledgment messages in order to take control over the TCP flow
control mechanism from the destination data server. This module also
includes functions that manage the transmission timing of the LocalAcks
and queuing management of the acknowledged data messages.
2. SESSION CAPACITY MANAGER - determines the maximum amount of
information, which can be in an "in-flight" situation. This amount may
be fixed or changed from time to time based on the network dynamics.
3. SLICING - Transmission of an artificial message which includes the last
transmitted byte/s in order to enforce a duplicate Ack situation, if
the previous packet/s got lost, which will further enable fast
retransmission of the lost packets.
4. INTER PACKET INTERVAL - generates artificial delay between any pair of
consequent packets in order to "smooth" the transmission, and to reduce
the probability of packet loss. This delay may be fixed or dynamic,
based on the different conditions in the network.
E X H I B I T B
Speedwise will use the Licensed Modules for the sole purpose of streamlining and
accelerating TCP traffic between cellular data users and certain data servers,
which are installed in the cellular carrier's data network.
E X H I B I T C
1. In event that Speedwise sells the Product without bundling the Product
with Speedwise's other products, then Speedwise shall pay Marnetics
License Fees in the sum of 15% of the net revenues (excluding the price
of third party products) generated from the Product.
2. In event that Speedwise sells the Product as part of a bundle of other
Speedwise's products, then the minimum price of the Product shall be
USD 25 per each concurrent user, of which Marnetics shall be entitled
to receive the fees as detailed in section 1 hereinabove.
3. Both parties agree that that in such events as both parties may
mutually agree the fees may be updated accordingly.