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Exhibit 10.36
RTP OEM SOFTWARE LICENSE AGREEMENT
This OEM Software License Agreement is made and entered into as of the Effective
Date MARCH 1ST, 2001 by and between FUJITSU-SIEMENS Computers GmbH (hereinafter
called "FSC") and UNISPHERE NETWORKS INC. (hereinafter called "LICENSEE") with a
place of business at One Executive Drive, Chelmsford Massachusetts, 01824, USA
on behalf of itself and its Subsidiaries.
RECITALS
FSC develops and licenses software, APIs, documentation and other intellectual
property that enable Original Equipment Manufacturers ("OEMs") to build highly
available computing clusters for target applications which include
telecommunications equipment.
LICENSEE is an OEM who designs, manufactures, sells and supports a variety of
telecommunications equipment and software.
LICENSEE wishes to license the software known as the "Resilient Telco Platform",
hereinafter referred to as "RTP", subject to the terms and conditions of this
Agreement, for the purpose of building and redistributing software applications
with LICENSEE's equipment and/or software. RTP as used throughout this document
is understood to include also third party components as defined in Schedule D.
RTP-C Source code will be provided to enable LICENSEE to honor the response time
expectations of its service level agreements with its customers in making defect
corrections and for no other than these limited service purposes. Any other
source code changes need the prior written approval of FSC.
RTP-C can be run on both a single node as well as a multi node cluster without
requiring changes to the LICENSEE's API (except eventually changes due to timing
behavior). The target platform for the licensee is the Sun Microsystems Netra /
Solaris Operating System computer.
It is understood that both parties intend to decouple the existing SS7 protocol
stack (by Ulticom) and porting a new one into RTP. FSC is willing to provide RTP
without the existing SS7 stack, and will provide documentation and information
including a one-week workshop on the interaction between the SS7-stack and the
RTP. Any further support needs to be agreed upon separately.
Furthermore it is understood that FSC intends to replace the Oracle database by
another company's product. In this case the new database can only be used by
RTP, any applications built on top of RTP by Unisphere need a separate database
to be provided by Unisphere.
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NOW, THEREFORE, in consideration of the mutual promises and covenants herein,
the parties hereby agree as follows:
1.0 GENERAL TERMS - LICENSE GRANT
Terms of this agreement are individually negotiated and come under the purview
of Confidential Information and are governed by the Confidential Information
clause defined in Section 9.0.
1.1 FSC will provide to LICENSEE the human readable source code and all
applicable user documentation (the "Source Code") and the matching
machine readable binary code and all applicable user documentation (the
"Object Code") for any delivered RTP version or release or patch,
including comments, tools, notes, and related and supporting technical
documentation of RTP to LICENSEE, excluding third party software
components of RTP, for which FSC will supply to LICENSEE the machine
readable object code. RTP is governed by the Confidential Information
clause below.
1.2 In respect of RTP Software, FSC hereby grants to LICENSEE, and LICENSEE
accepts, a nonexclusive (except as provided herein), world-wide,
non-transferable (except as provided herein) license to:
(i) use, copy and modify the Source Code version of the RTP
Software (except 3rd party software) for purposes of
development of bug fixes, patches or work-arounds for any
reported problems or errors, which are of severity, level 1
and 2 and which require urgent resolution.
(ii) copy the Source Code as required for purposes of back-up,
disaster recovery or source code control, and
(iii) incorporate the Object Code version of the RTP Software into
the "Named Products" as hereinafter defined.
(iv) distribute and sublicense copies of the Object Code version of
the RTP Software to Licensee's end users for use with the
Named Products, under a sublicense agreement containing terms
and conditions substantially similar to those set forth in
this Agreement, and
(v) grant to Licensee's resellers the right to distribute and
sublicense copies of the Object Code version of the RTP
Software to end users for use with the Named Products, under
the same terms and subject to the same limitations and
obligations specified for Licensee above.
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1.3 Any use of RTP other than as provided in section 1.2 above is expressly
prohibited by this Agreement. LICENSEE shall not have the right to
place machine-readable object code for the SS7 and the database
components of the RTP Software on its Internet site for downloading by
its customers. Prior written approval of FSC is required if Licensee
wishes to download the remaining components of RTP over the Internet.
In no event shall Licensee place source code of RTP software on any
Internet site. There is no limit on the number of copies of RTP as part
of the Named Product that LICENSEE can sell or distribute, bundled with
the Named Products but never on a stand-alone basis only, and whether
directly to end user customers of LICENSEE or through third party
distributors, or system integrators.
1.4 The License includes a limited license under patents owned by FSC, or
in which FSC has sufficient rights from third parties to grant such
rights, but only to the extent necessary or to exercise any license
right granted by FSC to LICENSEE pursuant to this Agreement.
1.5 RTP (object code and source code) is licensed, not sold, to the
LICENSEE. RTP and all modifications to the RTP are and shall become the
sole property of FSC and its suppliers, and, other than as set forth
above, this Agreement in no way confers any ownership rights to the RTP
to the LICENSEE.
1.6 Except as otherwise provided in Section 1.5, Named Products are the
sole property of LICENSEE and all ownership rights to the Named
Products shall be and remain with the LICENSEE, and this Agreement in
no way confers any right title or interest in or to the Named Products
or any intellectual property rights included therein.
1.7 RTP Dependencies With 3rd Party Suppliers: It is FSC's responsibility
to work with third parties to provide the agreed upon functionality and
problem resolution required. The list of third party suppliers
currently consists of:
- - SS7 stack (Ulticom) [as long as it is bundled with RTP]
- - Database (currently Oracle) [as far as RTP-C usage is concerned]
- - Sun Cluster Software and Sun Solaris (as far as RTP-C usage is concerned)
- - SNMP agent (SNMP Research International)
- - Freeware/Shareware components.
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2.0 NAMED PRODUCTS
LICENSEE shall use the RTP for the purpose of creating the following Named
Products of the LICENSEE. The Named Products shall include any future revisions,
model numbers and successors for these products as well.
Named Products: Unisphere Networks Inc. SRX-3000
The SRX-3000 is a service creation and delivery platform that allows providers
to integrate converged voice and multimedia services on cable modem access,
xDSL, and next-generation wireless networks as well as ATM and circuit-switched
networks. The SRX-3000 supports legacy and next- generation interfaces in a
integration of legacy and "new world" technologies. It enables a service
creation environment that gives service providers a choice of turnkey and mix
and match solutions. It provides control over IP, ATM, and legacy TDM
connections allowing mediation.
The Unisphere Networks Universal Call Engine provides delivery of services over
a normalized calling service interface. The Softswitch enables high-availability
and scalability to carrier grade Busy Hour Call Attempts through hardware
redundancy and multi-node clustering and rolling upgrades. It leverages
directory enabled technology to provide subscriber profile management, including
service level enforcement.
3.0 LICENSING AND ROYALTY FEES
3.1 ROYALTY FEES: LICENSEE will pay royalties per the royalty schedule
defined in Schedule A.
3.2 DEPLOYMENT SUPPORT LICENSE FEE: LICENSEE will pay fees defined in
Schedule B.
3.3 Royalty Fees and Deployment Support Fees due and payable shall be
reported calendar quarterly within 10 days after each such period and
be paid within 30 days after receipt of respective invoice. As soon as
tools are available both parties intend to automate this process when
technically and commercially feasible.
Not more than once every two years, FSC may designate an independent
certified auditor acceptable to LICENSEE to inspect the directly
relevant records of LICENSEE during LICENSEE's regular business hours
and at a time that is mutually agreed upon by both FSC and LICENSEE to
determine the accuracy of all payments previously made by LICENSEE
hereunder. The auditors will act under NDA to be mutually agreed by
Licensee and FSC. Any expenses of such inspection shall be borne by
FSC, unless the audit evidences an underpayment of more than five (5)
percent. In case of an underpayment exceeding five (5) percent the
reasonable cost for the audit shall be borne by LICENSEE. Any
information derived from LICENSEE's reports or records shall be
maintained in confidence by the auditor and FSC as Confidential
Information of LICENSEE. Auditor is entitled to take notes on payment,
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Ulticom boards, license fees and number of copies only. LICENSEE shall
receive a copy of auditor's reports.
3.4 DEVELOPMENT SUPPORT LICENSE FEE: The normal up front development fee
shall be waived due to the beneficial nature of the LICENSEE's project
to FSC. All other development fee payments are due 30 days after
receipt of invoice. FSC will invoice LICENSEE annually.
3.5 SOURCE CODE BUY OUT - FSC offers a source code buyout price of
$250,000, not including the OMNI or database source code, but only in
the event that FSC or any legal successor or any legal entity which has
taken over the rights and obligations on RTP generally and permanently
discontinues development and support of the RTP product. Any such
buyout shall give Licensee non-exclusive rights to use the source code
for the purposes of this Agreement especially for on going developments
of the Named Product and for maintenance purposes. It is especially
agreed upon by the parties, that any such buy out does not prevent FSC
to grant third parties similar buyout rights, however limited to the
specific purposes of respective license and service agreements
concluded between FSC and such third parties. FSC shall provide at
least a six-month notice of plans to terminate active development of
the RTP product. In case of a source code buyout this Agreement shall
be considered as terminated in accordance with section 5. Further
details shall be mutually agreed upon in a separate source code buyout
agreement.
3.6 DISCOUNTED TRANSFER PRICE - LICENSEE receives a transfer price of 60%
of RTP list prices for software (Schedule A) and support and
maintenance fees (Schedule B) and 65% for hardware (Schedule A). FSC
agrees that LICENSEE shall receive it's best discounting structure at
the time this agreement has been concluded under comparable conditions
and further agrees not to discriminate against LICENSEE in the future.
3.7 MAINTENANCE: FSC provides Maintenance, which consists of Technical
Support and includes all minor releases of RTP. Minor releases are
those Software releases that add minor improvements and/or bug fixes to
an existing major release, and are designated by alphabetic characters
after the version number (e.g. 1.1B, 1.1C). FSC will provide Technical
Support via telephone and e-mail as described in Schedules B and C of
this Agreement. Under Technical Support, FSC shall use commercially
reasonable efforts to assist LICENSEE in diagnosing errors/malfunctions
and either correcting such errors/malfunctions, or assisting LICENSEE
in using the Software to avoid them.
3.8 UPGRADES: Upgrades are major new releases of the RTP. A major release
adds significant new functionality, and/or performance increase to a
prior release, and is designated by a version number (e.g., 1.1, 2.0).
FSC commits to continue upgrading RTP and provide it to LICENSEE.
Maintenance and Upgrades are both covered by
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the mandatory Development Support license and the Deployment
Support license. For the current list prices see Schedule B.
3.9 Development Support: Source code must have a version number that
matches the latest executable delivered. FSC will provide to Licensee
the necessary information to construct its own "build environment" for
RTP. Specifically FSC will provide support for problems encountered
with executables, containing 3rd party components like e.g. Interfaces
with Java, etc., if caused by the use of RTP.
3.10 New FEATURE REQUESTS: The process of feature requests has been
introduced to address the occasional need for functionality of features
deviating from the RTP manuals or for extending the documented RTP
functionality. This process should be used for any additional
requirements or features, licensee sees necessary for their respective
applications. Feature request enter the RTP planning process and are
discussed with RTP's customers for priority, time schedule and business
impact. In the event that major RTP feature development, not previously
included in the roadmap, is required by LICENSEE, additional costs for
these features will be negotiated in good faith.
4.0 COPYRIGHTS
LICENSEE shall reproduce and apply any copyright or other proprietary rights
notices of third party products embedded in RTP to any copies of RTP, in whole
or in part, in any form. FSC acknowledges that LICENSEE's plan to either place
copyright notices within the Named Product itself (where it will not be viewed
by end user customers) or within a `help' or `about the Named Product' box in
the Named Product will satisfy this requirement.
4.1 Ulticom specifics: Each portion of the Software and Documentation
reproduced by Licensee shall include the intellectual property notice
or notices appearing in or on the corresponding portion of such
materials as delivered by Licensor hereunder. Licensee shall ensure
that all copies of the Software made pursuant to this Agreement
CONSPICUOUSLY display a notice substantially in the following form:
COPYRIGHT (C) 1998 (OR OTHER APPROPRIATE YEAR(S)), ULTICOM, INC. ALL RIGHTS
RESERVED.
If Licensee is unsure of the appropriate year(s), it shall consult Licensor to
obtain the correct designation. Such notice shall be on labels on all media
containing Software. If the copyright symbol "(C)" cannot technically be
reproduced, Licensee shall use the word "Copyright" followed by the notation
"(c)" in its place.
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5.0 TERM AND TERMINATION
5.1 The initial term of this AGREEMENT shall commence on the EFFECTIVE DATE
and continue thereafter for a period of 2 (two) years. Thereafter the
term shall automatically extend from year to year unless both parties
mutually agree to terminate the AGREEMENT including a termination by
source code buy-out according to section 3.5.
5.2 Either Party may elect to terminate this AGREEMENT for a material
breach of contract by the other Party upon delivery of at least 30 days
prior written notice to the other Party; provided, however, if such
material breach of contract is cured by the other Party within said 30
days on or before the EFFECTIVE DATE of termination, such election and
notice shall be of no further force and effect and this AGREEMENT shall
not be terminated thereby.
5.3 Termination of this AGREEMENT shall not affect the licenses granted or
copies of the Named Product sold by LICENSEE according to this
AGREEMENT at the time of termination.
5.4 In case LICENSEE becomes a direct competitor of FSC by merging with or
being acquired (50% or more) by a direct competitor of FSC in the field
of Information Technology, LICENSEE will inform FSC promptly in
writing. FSC is entitled within two months after receipt of such notice
to terminate this AGREEMENT unless it consents to such a merger or
acquisition. FSC shall not unreasonably withhold its consent. For
purposes of this clause, and without limiting the generality of the
foregoing, any withholding of consent by FSC shall not be deemed
unreasonable if, in FSC's reasonable judgment, access by such third
party to the RTP Software would be significantly injurious to FSC's
business or reputation. Licenses already granted will remain unaffected
by such termination and a reimbursement of prepaid license fees - if
any - will be made on a pro-rata basis.
5.5 In case FSC or its RTP-C technology is acquired by or is
subject to a merger with a direct competitor of LICENSEE, FSC will
inform LICENSEE promptly in writing. LICENSEE is entitled within two
months after receipt of such notice to terminate this AGREEMENT unless
LICENSEE consents to such a merger or acquisition. LICENSEE shall not
unreasonably withhold its consent. For purposes of this clause, and
without limiting the generality of the foregoing, any withholding of
consent by LICENSEE shall not be deemed unreasonable if in LICENSEE's
reasonable judgment, reliance by LICENSEE upon the performance by such
competitor of FSC's duties under this Agreement would be significantly
injurious to LICENSEE's business or reputation. Software licenses
granted pursuant to Section 1 of this Agreement prior to the effective
date of the termination shall be unaffected by such termination and a
reimbursement of prepaid license fees, if any, will be made on a
pro-rata basis. In addition to its right to terminate this Agreement,
LICENSEE shall upon notice have the right to acquire the RTP C Source
Code and all accompanying documentation and FSC shall grant a
non-exclusive, perpetual and worldwide license to use, copy, modify,
enhance, create derivative works from, produce, distribute,
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license and support the Source Code. FSC shall deliver the Source Code
and documentation within thirty days after the effective date of
Licensee's termination. The price for the Source Code and documentation
shall be twelve and one half million U.S. Dollars ($12,500,000) minus
fifty percent (50%) of the cumulative royalty fees, after discount, (as
defined in Schedule A of this Agreement) paid to FSC as of the
effective date of such termination. Notwithstanding the foregoing, in
no event shall the price for the Source Code and documentation be less
than two and one half million U.S. Dollars ($2,500,000).
5.6 If this Agreement terminates for other reasons than Source Code buyout
according to section 3.5 or 5.5, LICENSEE shall return all copies of
the RTP (source code and object code) to FSC and shall certify in
writing that all components of the RTP have been returned, made
unreadable, or erased from the memory of LICENSEE's computers, all
except the ones that may be necessary for LICENSEE to use in order to
honor written maintenance commitments to customers existing as of the
termination date; and LICENSEE shall have no further rights of
distribution; however, termination of the License shall not affect any
existing agreements with customers or licensees, whose license rights
shall continue perpetually.
5.7 EXCEPT FOR TERMINATION DUE TO MATERIAL BREACH OF CONTRACT BY LICENSEE
OR SOURCE CODE BUY OUT ACCORDING TO SECTIONS 3.5 AND 5.5, THE
OBLIGATION OF FSC PURSUANT TO SECTION 2 OF SCHEDULE B AND SCHEDULE C TO
PROVIDE SUPPORT AND MAINTENANCE ENDS 7 YEARS AFTER THE TERMINATION DATE
OF THIS AGREEMENT.
6 REPRESENTATIONS AND WARRANTIES
6.1 FSC represents and warrants that FSC owns or has the legal right to use
and license the RTP as licensed under this Agreement, that the RTP does
not infringe any patent or copyright or violate any other proprietary
rights of a third party, and that FSC has the full power and authority
to enter into this Agreement. Concerning Ulticom the above statement is
subject to pending contract signature between Siemens AG and Ulticom.
FSC further represents and warrants to the best of its knowledge and
belief that as of the Effective Date and thereafter throughout the
term, the statements contained in this Article 6.0 are and shall be
true and correct.
6.2 FSC warrants that the RTP, including related supporting data and files,
will function correctly when dealing with dates, times and date/time
related data in the following manner; (i) the RTP will accurately
process date/time data (including calculating, comparing, and
sequencing) from, into, and between the twentieth and twenty-first
centuries, and the years 1999 and 2000 and leap year calculations, (ii)
when used in combination with information technology products from
other vendors used by RTP,
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the RTP will accurately process date/time to data with the other
vendor's information technology products, and (iii) the RTP will
neither contain nor create any logical or mathematical inconsistency,
will not malfunction, and will not cease to function when processing
date/time data.
6.3 If LICENSEE requires information concerning origin of the RTP due to
government contract requirements or other U.S. reporting requirements,
LICENSEE will provide FSC with a written outline of the specific
information requirements, which products such requirements apply to,
and the reason or legal basis for the requirement. Upon receipt of such
information from LICENSEE, FSC will supply the information requested.
6.4 EXCEPT AS EXPRESSLY PROVIDED HEREIN, FSC DOES NOT MAKE AND HEREBY
DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES RELATING TO THE RTP,
INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ANY WARRANTIES THAT MIGHT ARISE FROM A COURSE OF
DEALING, USAGE OR TRADE PRACTICE.
7 LIMITATION OF LIABILITY
7.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND
UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY, CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE
OTHER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF IT SHALL HAVE BEEN INFORMED
OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 In no event shall the aggregate liability of either party exceed the
aggregate amount paid by LICENSEE for the RTP under this Agreement,
except for loss or damage arising out of:
(a) breach of Sections 8.0 (INDEMNIFICATION) or 9.0 (CONFIDENTIAL
INFORMATION)of this Agreement, or
(b) Licensee's breach of its obligations under Section 1.3 of this
Agreement to (i) distribute the RTP Software only when bundled
with the Named Products and not on a stand-alone basis, and
(ii) not place the source code of the RTP Software on any
Internet site.
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Each party's liability arising out of subparagraphs 7.2(a) and 7.2(b)
shall be limited to the greater of (c) the amount of its applicable
insurance coverage limits or (d) the aggregate amount paid by Licensee
for the RTP under this Agreement, provided however that in no event
shall such limitation of liability arising out of subparagraphs 7.2(a)
and 7.2(b) be less than ten million US dollars ($10,000,000).
8. INDEMNIFICATION
8.1 Notwithstanding Article 7 above, FSC agrees that it will, at its own
expense, defend LICENSEE in respect of any action brought against
LICENSEE, and indemnify LICENSEE against any award of damages and costs
made against LICENSEE in any and all claims, actions or suits alleging
that the RTP used within the scope of the License herein granted
constitutes an infringement of any patent or copyright or other
intellectual property rights. The indemnification obligation shall not
apply, where the infringement is caused by modifications of RTP made by
LICENSEE, if the infringement is solely based on said modifications or
attributably caused by any use of the RTP in combination, operation or
use with any machine, program or other material, if the infringement is
solely based on such combination.
8.2 LICENSEE shall notify FSC promptly in writing of any action brought
against LICENSEE based on a claim described in Section 8.1. FSC shall
defend such action at its expense and pay all expenses and costs
attributable to such claim incurred by LICENSEE, and all settlements
and damages awarded against LICENSEE in such action or settlement that
are attributable to such claim. FSC shall have control of the defense
of such action including appeals, and of all negotiations thereof,
including the right to effect any settlement or compromise with the
written consent of LICENSEE. LICENSEE shall reasonably cooperate with
FSC in the defense of such claim at FSC cost, and may be represented,
at LICENSEE's expense, by counsel of LICENSEE's selection. In the event
that counsel retained by FSC advises FSC and/or Licensee that in the
opinion of such counsel there exists a conflict between the interests
of FSC and the interests of Licensee in connection with any issues
arising out of such infringement claim, including without limitation
the litigation or settlement thereof, then FSC shall retain, at its
expense, additional outside counsel acceptable to Licensee to represent
the interests of Licensee with respect to such conflict.
8.3 In case the RTP is held to constitute an infringement and its use is in
any way enjoined, FSC shall at its option and expense (a) procure for
LICENSEE the right to continue using the RTP or (b) replace or modify
the same so that it becomes non-infringing and performs the same
service with substantially the same quality, or, if neither of the
foregoing options (a) or (b) are commercially practicable, (c) grant
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LICENSEE a credit, less reasonable depreciation for use, damage and
obsolescence, upon return of the RTP to FSC , but in no event less than
the amount LICENSEE is obligated to return to its customers.
8.4 Except as expressly provided in Section 8.1, LICENSEE shall defend FSC
from all third party claims brought against FSC to the extent based
upon the combination of RTP with the Named Product, provided that FSC
shall notify Licensee promptly in writing of any action brought against
FSC based on a claim described in this Section 8.4. Licensee sole
obligation shall be to defend such action at its expense and pay all
expenses and costs attributable to such claim incurred by FSC, and all
settlements and damages awarded against FSC in such action or
settlement that are attributable to such claim. Licensee shall have
control of the defense of such action including appeals, and of all
negotiations thereof, including the right to effect any settlement or
compromise with the written consent of FSC. FSC shall reasonably
cooperate with Licensee in the defense of such claim at Licensee's
cost, and may be represented, at FSC's expense, by counsel of FSC's
selection. In the event that counsel retained by Licensee advises FSC
and/or Licensee that in the opinion of such counsel there exists a
conflict between the interests of FSC and the interests of Licensee in
connection with any issues arising out of such infringement claim,
including without limitation the litigation or settlement thereof, then
Licensee shall retain, at its expense, additional outside counsel
acceptable to FSC to represent the interests of FSC with respect to
such conflict.
9 CONFIDENTIAL INFORMATION
9.1 Each party shall maintain the confidentiality of the other party's
Confidential Information and shall not, without the other party's prior
written consent, (a) use such Confidential Information in any manner
not authorized under this Agreement, or (b) disclose any such
Confidential Information in any form to any person, except to (i) its
employees or agents whose access is necessary in connection with the
performance of this Agreement and (ii) licensees licensed under this
Agreement to receive such Confidential Information. Each party shall
protect the other party's Confidential Information to the same extent
and with all reasonable efforts as it protects its own Confidential
Information in order to maintain the security and confidentiality of
Confidential Information. "Confidential Information" means any business
or technical information of either party, that (a) is provided to the
other party in connection with this Agreement, (b) is designated in
writing as confidential information, and (c) concerns the party's
business, methods, plans, designs, procedures, systems operations, or
technology, research, customer or financial data. Confidential
Information includes the RTP and the Source Code, except to the extent
that the License and rights granted under this Agreement permit
distribution of the same (and derivative works thereof) to third
parties. Confidential Information does not include
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any information that (a) is or becomes publicly available through no
act, omission or fault of the receiving party, (b) was or is known to
the receiving party without any obligation of confidentiality before
being received from the disclosing party, (c) is disclosed to the
receiving party by a third party not under any obligation of
confidentiality owing to the disclosing party, or (d) is independently
developed by the receiving party.
9.2 Any breach of Section 9.1 above may cause immediate and irreparable
harm for which monetary damages would be an inadequate remedy and
therefore, if any Confidential Information is wrongfully disclosed or
used, then in addition to the remedies provided by this Agreement and
by law, the party whose Confidential Information is wrongfully
disclosed or used shall be entitled to an injunction preventing further
disclosure or use of the Confidential Information by the other party or
by any third party to whom the Confidential Information has been
wrongfully disclosed.
9.3 The obligations of this Article 9 shall continue throughout the term of
this Agreement and shall survive for three (3) years following any
expiration or termination of this Agreement.
10 EXPORT; RESTRICTED RIGHTS
The Parties agree to cooperate in complying with any export laws and regulations
of the United States, including the regulations of the U.S. Department of
Commerce, with respect to the export of U.S. origin technical data and
commodities, and agree to provide the Letters of Assurance and other documents
as may be required under such laws and regulations and secure licenses for
export or re-export.
11 ACCEPTANCE
11.1 LICENSEE shall diligently evaluate the RTP Software and shall submit a
written acceptance or rejection to FSC within ninety (90) days after
delivery of each RTP object code release or thirty (30) days after the
last reported severity 1/2 error, whichever is later.
11.2 In the absence of written rejection by such date, LICENSEE will be
deemed to have accepted the Licensed Programs.
11.3 LICENSEE may reject the Licensed Programs if:
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11.3.1 On the Acceptance Date, there are any unresolved problems of Severity 1
or 2 (as set forth in Schedule C of each Addendum) reported to FSC at
least thirty (30) days previously, or
11.3.2 On the Acceptance Date, there is an unreasonable number of open
problems of Severity 3 or 4 which FSC has failed to resolve within the
committed resolution time described in Schedule C.
11.4 Upon written rejection by such date, LICENSEE's license rights to the
rejected Licensed Programs shall be terminated, LICENSEE shall destroy
all of the Proprietary Information associated with the rejected
Licensed Programs, and FSC will promptly refund to LICENSEE all
payments made for the rejected Licensed Programs.
11.5 Following acceptance of the Licensed Programs by LICENSEE, FSC will
have no liability for the consequences of any use, which LICENSEE makes
of the Licensed Programs except, as otherwise provided in this
Agreement.
12.0 MISCELLANEOUS
12.1 This Agreement may be amended only by the written agreement of the
parties.
12.2 This Agreement, and the rights and obligations of a party hereunder,
may not be assigned or delegated, voluntarily or by operation of law,
without the prior written consent of the other party, which shall not
be unreasonably withheld or delayed, provided, however, that either
party may assign this Agreement without the prior written consent of
the other (i) to any subsidiary or company of which the assigning party
is a subsidiary so long as the assigning party remains responsible for
such subsidiary's performance. or (ii) subject to sections 5.5 or 5.6
of this Agreement, to a person or entity into which it has merged or
which has otherwise succeeded to all or substantially all of its
business and assets to which this Agreement pertains, by purchase of
stock, assets, merger, reorganization or otherwise, and which has
assumed in writing or by operation of law its obligations under this
Agreement.
12.3 This Agreement is the result of negotiation between the parties and,
accordingly, shall not be construed for or against either party
regardless of which party drafted this Agreement or any portion
thereof.
12.4 This Agreement constitutes the whole and entire agreement of the
parties on the subject matter hereof. This Agreement supersedes all
prior representations, proposals, correspondence, memoranda or other
communications, whether written or oral, all of which are expressly
excluded from this Agreement. In the event of a conflict between the
terms of this Agreement and any schedules attached hereto the terms of
the Agreement shall prevail.
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14
12.5 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, exclusive of its conflict of law
principles
12.6 FORCE MAJEURE. Neither party shall be liable for any loss or damage due
to failure or delay arising out of acts of God or any other cause
beyond that party's reasonable control.
12.7 Notwithstanding injunctive relief according to Section 9.2, all
disputes arising out of or in connection with the present agreement,
including any questions regarding its existence, validity or
termination, shall be finally settled by binding arbitration under the
"Commercial Rules" of arbitration of the American Arbitration
Association (AAA) by three arbitrators in accordance with said Rules.
Each party shall nominate one arbitrator for confirmation by the
competent authority under the applicable Rules (Appointing Authority).
Both arbitrators shall agree on the third arbitrator within 30 days.
Should the two arbitrators fail, within the above time limit, to reach
agreement on the third arbitrator, he shall be appointed by the
Appointing Authority. If there are two or more defendants, any
nomination of an arbitrator by or on behalf of such defendants must be
by joint agreement between them. If such defendants fail, within the
time limit fixed by the Appointing Authority, to agree on such joint
nomination, the proceedings against each of them must be separated. All
arbitrators must have sufficient experience in the IT industry and in
international business transactions.
Notwithstanding the rules of arbitration of the AAA, the parties (i)
shall submit their dispute to the arbitrators within 2 months following
their decision that they could not resolve their dispute, (ii) each
party shall have no more than 5 days to present their case and (iii)
the arbitrators shall be instructed to render their decision within 30
days following the conclusion of each party's presentation. The
arbitrators shall specify the basis for their decision. The arbitrators
shall not award any punitive damages. The decision of the arbitrators
shall be considered as a final and binding resolution of the dispute,
shall not be subject of appeal and may be entered as a judgment in any
court of competent jurisdiction. The seat of arbitration shall be
Switzerland. The procedural law of this place shall apply where the
Rules are silent, however no pre-trial discovery procedure or jury
trial shall be allowed in the arbitration proceedings. The language to
be used in the arbitration proceedings shall be English. The whole
arbitration procedure shall be executed pursuant to a strict
non-disclosure agreement signed by the parties and the arbitrators
agreeing to conduct such proceedings and maintaining in confidence all
confidential information or trade secrets disclosed or produced in the
course thereof. All press releases or public statements regarding the
status of such proceedings shall be prepared jointly and only by the
parties, unless otherwise required by law.
12.8 Each party is and shall remain an independent contractor. Nothing in
this Agreement shall be deemed to establish a partnership, joint
venture or agency relationship between the parties. Neither party may
obligate or bind the other party in any manner to a third party.
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15
12.9 Any notices required to be given under this Agreement shall be in
writing and sent to the address of the appropriate party as set forth
below or to such other address as may have been substituted by written
notice and shall be effective upon receipt.
If to LICENSEE:
Michael Regan
VP Engineering - Voice
Unisphere Networks Inc.
One Executive Drive
Chelmsford, MA, 01824
978-848-0350 (voice)
978-848-0399 (fax)
e-mail: mregan@unispherenetworks.com
Georg Haubs
Vice President - Strategic Planning and Business Development
Unisphere Networks Inc.
One Executive Drive
Chelmsford, MA, 01824
978-848-0313 (voice)
978-848-0399 (fax)
e-mail: ghaubs@unispherenetworks.com
If to FSC:
Dr. Bartholomaeus Kellerer
Director UNIX Products
Fujitsu Siemens Computers GmbH
FSC EP OS XP
81730 Munchen
Phone: +49 89 636 47805
Fax: +49 89 636 48976
mailto: bartholomaeus.kellerer@fujitsu-siemens.com
Dr. Mathias Lejeune
FSC Legal
Fujitsu Siemens Computers GmbH
81730 Munchen
Phone: +49 89 636 42651
Fax: +49 89 636 46648
mailto: mathias.lejeune@fujitsu-siemens.com
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16
12.10 Any notices given shall be deemed to have been received as follows: if
sent by facsimile, when transmitted; if sent by certified first class
mail, on the date of delivery as shown on the return receipt; if sent
by Federal Express or equivalent overnight delivery services or by
personal delivery, on the date delivered.
12.11 The waiver by either party of a breach or default by the other party,
or the failure to exercise any remedy, shall not be deemed to be a
waiver of any future breach, default or remedy. All remedies of a party
provided herein, together with all remedies available at law or in
equity, shall be cumulative.
12.12 If any provision or provisions of this Agreement shall be held to be
illegal, invalid or unenforceable, the legality, validity and
enforceability of the remaining provisions of this Agreement shall not
in any way be affected or impaired. The parties agree to negotiate to
replace the illegal, invalid or unenforceable provision with a legal,
valid and enforceable provision that preserves the rights and
obligations of the parties to the fullest practicable extent.
12.13 This Agreement shall be binding upon, and inure to the benefit of, the
successors and permitted assigns of the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized representatives as of the Effective Date.
FSC UNISPHERE NETWORKS INC.
By: /s/ Kellerer By: /s/ James A. Dolce, Jr.
---------------------------------- ---------------------------
(Signature) (Signature)
Name: Kellerer Name: James A. Dolce, Jr.
-------------------------------- ----------------------
Title: Director Title: CEO and President
------------------------------- ----------------------
Date: March 9th, 2001 Date: March 9th, 2001
-------------------------------- ----------------------
By: /s/ illegible
----------------------------------
(Signature)
Name: illegible
--------------------------------
Title: Counsel
-------------------------------
Date: March 9th, 2001
--------------------------------
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17
SCHEDULE A - OFFERED PRODUCTS, TECHNOLOGY LICENSING FEES & ROYALTY SCHEDULE
RTP LIST PRICE-PRODUCT DELIVERABLES:
1. RTP-C
RTP-C is a package which bundles the following modules:
RTP-CS (Core Simplex) provides complete RTP API.
RTP-CNS (Core Non-Stop)
Upgrades a Simplex system to a highly available n-node cluster which allows full
non-stop computing functionality, distributed across multiple computing nodes
(for pricing purposes only, technically already contained in RTP-CS).
The simplex version is created for pricing purposes only; technically a
multi-node SW will be delivered.
2. RTP-SS7 (provide SS7-Stack including ISUP + TCAP + MAP)
RTP- CS /CNS DEPLOYMENT LICENSES
INTERNET OFFLOAD
PRODUCT 40,000 PORTS EXPANSION FROM 40,001 EXPANSION FROM 200,001 EXPANSION ABOVE
TO 200,000 PORTS TO 600,000 PORTS 600,001 PORTS
- ------------------------------------------------------------------------------------------------------
RTP-CS $ 20,000 $ 0.30 per port $ 0.15 per port $ 0.05 per port
RTP-CNS $ 25,000
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18
VOICE APPLICATIONS
PRODUCT 10,000 PORTS EXPANSION FROM EXPANSION FROM EXPANSION FROM EXPANSION FROM EXPANSION
10,001 TO 20,001 TO 60,001 120,001 TO ABOVE 240,001
20,000 PORTS 60,000 PORTS TO 120,000 PORTS 240,000 PORTS PORTS
- -------------------------------------------------------------------------------------------------------------------------
RTP-CS $ 35,000 $ 3.00 per port $ 1.50 per port $ 0.50 per port $ 0.45 per port $ 0.35 per port
RTP-CNS $ 25,000
For small start configurations a special 5,000 port configuration is offered at
the price of $17,500.
Lab evaluation licenses for both applications are free of charge for 6 months
(maximum five simultaneous).
These prices are based on the following performance and configuration
assumptions provided by Licensee:
- - Voice: call duration 4 min; 1.5 ports per call on average
- - IOL: call duration 30 min; 2 ports per call
- - 83 tps per CPU under normal system load including application processing
(70%)
- - 3 tps per call
Substantial Changes of these assumptions shall be reported from Licensee to FSC
and new prices will be negotiated in good faith.
RTP-SS7 DEPLOYMENT LICENSE (ULTICOM)
License prices are based on the aggregate annual purchasing volumes of Ulticom's
Software, Board and Link revenues including revenues for RM-series of Siemens AG
and related companies.
Less than $ 2,500,000 $ 106,000
$ 2,500,001 to $ 4,000,000 $ 98,000
$ 4,000,001 and above $ 85,000
RTP-SS7 BOARDS
Board Prices are based on the aggregate annual purchasing volumes of software,
boards and link revenues including revenues for RM-series of Siemens AG and
related companies.
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19
BOARD BOARD PRICE
--------------------------------------------------------------------------------
LESS THAN $2,500,001 $ 4,000,001 AND ABOVE
$ 2, 500,000 TO $ 4,000,000
------------ -------------- ---------------------
Two link V.35 $ 8.400 $ 7.400 $ 6.400
PCI Board
4-link T1/ E1 $ 13.000 $ 11.600 $ 10.600
PCI Board
8-link T1/E1 PCI $ 17.000 $ 16.000 $ 14.800
Board
8-link T1/E1 PCI $ 5.500 (net, no
Board for additional discount)
development
purposes
NOTE: HW support for Ulticom boards are not covered by this agreement and need
to be contracted separately between LICENSEE and Ulticom.
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20
SCHEDULE B - SUPPORT AND MAINTENANCE FEES
1. RTP-DEVELOPMENT- AND -SUPPORT LICENSE:
RTP-DEVELOPMENT / SUPPORT LICENSE is required for each different
application/project which is developed on top of RTP (example: Voice
Application including Internet Offload). If the development group is spread
over several development sites, the license has to be paid only once. The
license includes 7x24 premium support for one year. For subsequent years a
reduced support license is available.
RTP-DEVELOPMENT LICENSE
RTP-C-Development: $ 120,000
RTP-SS7-Development: $ 127,000
These development licenses are waived for the applications covered by this
agreement on the day of signature.
RTP-DEVELOPMENT-SUPPORT LICENSE
RTP-PREMIUM-CARE (7X24) is an annual fee, which includes beside the
maintenance all new update and upgrade versions of RTP. RTP-Premium-Care
(7x24) is tailored to meet the support and maintenance needs of application
developers. Standard support contracts for end customers are licensed per
cluster. In opposite to these licenses, RTP-Premium-Care is a package for
the complete development site. It covers a pool of cluster servers, which
are deployed for application development. RTP-Premium-Care provides direct
access to RTP engineering. RTP-Premium-Care is mandatory for each
development and test site.
The following table defines the support licenses available:
PRODUCT LICENSE NUMBER OF SYSTEMS TOTAL LICENSE LIST
PRICE
-----------------------------------------------------------------------------------
RTP-C-Premium-Care-4 1-4 $ 40,000
RTP-C-Premium-Care-UL > 4 $ 60,000
RTP-SS7-Premium-Care-4 1-4 $ 42,000
RTP-SS7-Premium-Care-UL > 4 $ 63,000
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21
For V1.0 the first annual fee is due with FCS (First Customer Shipment)
planned for April/May 2001.
2. DEPLOYMENT SUPPORT LICENSE:
For each deployed license of the Named Product, the licensee has to sell a
RTP support license to the end customer (can be embedded in the support
license of the Named Product). The deployment support license will be 15% of
the RTP product list price. This annual support fee includes the maintenance
support as described in Schedule C plus the new update and upgrade versions
of RTP. FSC will provide second level support; front-line support has to be
provided by the licensee (details in Schedule C).
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22
SCHEDULE C MAINTENANCE AND SUPPORT
In accordance with the article 3.0 and Schedule B of this Agreement, FSC will
provide Licensee and Licensee's customer with Maintenance and Support Services
as further described herein. These Services are only applicable to Licensee and
Licensee's customer with properly licensed RTP Software from FSC and a
non-terminated Development- or Deployment-Support License.
FSC RESPONSIBILITIES
FSC will provide back-end or third level technical support and maintenance for
RTP Software in accordance with the Maintenance and Support Services for
- RTP-Core as described below in section C 1
- RTP-SS7 (as long as Ulticom's SS7 stack is bundled with RTP) as
described in Attachment D, OEM Maintenance and Support of the OEM
License Agreement between Siemens AG and Ulticom.
FSC will also provide a support management escalation contact, to which any
concerns with quality of service or status of critical support incidents may be
directed.
Should Licensee request for on-site Engineering Support, Licensee shall
reimburse FSC for all reasonable travel and lodging expenses incurred by FSC
personnel to provide such support, and shall pay FSC its then-current
professional services daily consulting rate for the FSC personnel providing
Engineering Support.
LICENSEE RESPONSIBILITIES
Licensee will, at its own expense, provide front-line or first and second level
technical support to its distributors and end-customers. Such support includes
call receipt, call screening, installation assistance, problem identification
and diagnosis, efforts to create a repeatable demonstration of the Problem and,
if applicable, the distribution of any defective media or Updates.
When requesting support, Licensee will follow FSC's prescribed support
procedures and will make best efforts to provide necessary access to technical
information, diagnostic data, system configurations, and other items that FSC
will require to resolve reported Problems. Licensee will designate no more than
two (2) authorized contacts through which support will be routed to FSC.
SCHEDULE C 1 - MAINTENANCE AND SUPPORT SERVICES FOR RTP-CORE (RTP-C)
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SOFTWARE UPDATE SERVICES
Licensee with non-terminated Support License automatically receives a copy of
new releases of RTP-C and accompanying documentation when made generally
available by FSC. Licensee may install the new release on each device with a
valid Support License.
MAJOR RELEASES: FSC periodically produces "Major Releases" (e.g. Version 1.1,
2.0 etc.) of the RTP-C Software, which may contain significant new functions and
problem repairs. Each Major Release is supported with Minor Releases, Bug Fixing
Packages and Technical Support for thirty-six (36) months following the general
availability date of that Major Release.
MINOR RELEASES: During the support for a Major Release, FSC periodically
produces "Minor Releases" (e.g. Version 1.1B, 1.1C etc.) that may contain new
functions with limited impact and problem corrections. Minor Releases also
contain the official version of all fast bug fixes agreed upon between licensor
and licensee, which are implemented by Licensee between two Minor Releases.
BUG FIXING PACKAGES: During the support period of a Major Release and in between
Minor Release deliveries, FSC will deliver Bug Fixing Packages with corrections
to Critical Problems.
FSC reserves the right to change the frequency of Major Releases and Minor
Releases.
TECHNICAL SUPPORT
FSC shall maintain a trained staff capable of rendering Technical Support for
RTP-C Software.
PROBLEM REPORTING: FSC shall maintain a Customer Support Team capable of
receiving Licensee generated Problem Reports for Problems manifested on RTP-C.
The Customer Support Team is reachable 24 hours per day, 7 days per week via
e-mail or via telephone.
PROBLEM REPORTS: Problem Reports submitted by Licensee shall contain the
following information and shall be assigned a tracking number by FSC:
- - Identification of end-customers environment.
- - Problem Severity (see Table 1).
- - Identification of Software Releases in use.
- - Machine and Network Configuration.
- - Description of Problem, Circumstances leading to the Problem, Licensee's
evaluation of the Problem, any other reasonable analysis data available
such as line monitor traces, log files etc.
Licensee shall assist FSC, as reasonably requested, to perform additional tests
and gather information to aid FSC's analysis of the Problem. In the event of
critical problems that are not reproducible at FSC's facilities, FSC may request
remote access to Licensee's development center to assist FSC in collecting
and analyzing data in the data collection process. In the event the critical
problem is not reproducible at Licensee's development center, FSC may request
Licensee to obtain remote access to Licensee's
Page 23 of 27
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End-customer site in consent with Licensee's end-customer.
PROBLEM SOLUTION. Within the Response Time (see Table 1) of verifying that such
Problem is present, FSC shall initiate work in a diligent manner toward
development of a Problem Solution (solution that enables the RTP Software to
substantially conform to the accompanying documentation for the release). FSC
shall inform Licensee of the expected time frame within which such Problem
Solution shall be delivered. Notwithstanding any such estimated time frame, FSC
shall make reasonable commercial efforts to provide Problem Solution within the
Resolution Time defined in Table 1.
RESPONSE AND RESOLUTION TIMES
SEVERITY DESCRIPTION RESPONSE TIME RESOLUTION TIME
- --------------------------------------------------------------------------------------------------------------------
Critical - Problem that prevents or seriously
impairs the execution of a major function in the
1 Licensed Programs either by LICENSEE or a
sublicensee of LICENSEE. No suitable work-around 4 hours 1 working day
is available.
Severe Impact - Problem that significantly impairs 5 working days
the execution of a major function in the Licensed
2 Programs either by LICENSEE or a sub licensee of
LICENSEE. A short-term work-around is available. 4 hours
Degraded Operation - Problem that disables or 1 working day 20 working days
3 impairs the execution of a minor function in the
Licensed Programs.
14 working days 180 working days or in
Minor Impact - Problem in a rarely used function next maintenance
4 or problem for which an easy and effective method release, whichever
for avoiding the impact exists. comes sooner
TABLE 1.
Proposals for temporary workarounds like reboot system/reload HW-Controller,
changes of configuration, reducing system load or deactivate single components
will be made by our support team within the Response Time.
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25
All Problem Solutions shall be deemed part of the RTP-C Software and subject to
the terms and conditions of the License Agreement. Depending on the nature of
the Problem and the timing of the next scheduled Major Release or Minor Release,
the Problem Solution may take one of the following forms:
- - Major Release or Minor Release.
- - Bug Fixing Package of RTP-C that delivers a correction of the Critical
Problem.
- - Problem Repairs are only made to the Major Release, the latest Minor
Release of the supported Major Release or the latest Bug Fixing Package.
- - Workaround instructions to enable Licensee to avoid the adverse effects of
the Problem, including restarting some or all of the RTP components in the
event a solution or fix has not been finalized.
- - Temporary "Fast Bug Fixes" implemented by Licensee. Licensee shall report
these changes of the source code to FSC. FSC may integrate these changes
into the next release of RTP-C or implement an own solution of this
problem.
FSC shall include all Problem Solutions as agreed upon between Licensee and
Licensor in the next practical and all subsequent releases of the RTP-C.
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26
SCHEDULE D - LIST OF DELIVERABLES
SOFTWARE
RTP-C (CORE)
RTP-C as specified in the documentation listed below
Source Code RTP-C
Machine-readable object code of RTP-C
Makefiles
Tools and appropriate sources
RTP-SS7
Machine-readable object code of SignalWare(R) from Ulticom
No source code and no headerfiles
DOCUMENTATION
RTP-C
Installation/Configuration Guide
Administration Guide
Programmer Guide
Online Release Documentation
Performance Documentation
FSC will provide for Major Releases basic component-specific
Performance figures, including (but in the future not limited)
Context Manager, Communication Manager and Timer Manager.
Data Sheet
The high availability concept of the Resilient Telco Platform
RTP-SS7
SignalWare(R) customer documentation from Ulticom
TESTING ON SUN-CLUSTER
RTP tests are performed on a limited set of non PrimePower configurations (at
the moment SUN-450 with 4 processors). Tests on other customer specific
configurations are in the responsibility of the application developer. On
request, test and problem Analysis support can be provided in the framework of
RTP service offerings. Of course, FSC takes responsibility for bug fixing in
case of identified RTP problems.
Each release shall be certified by FSC to provide the features, and successfully
work in the configurations, stated in its Release notes. Furthermore, FSC shall
certify that its software performs correctly with the base platform stated
above.
SUN CLUSTER CERTIFICATION
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27
In the event that the Named Product needs to be certified by Sun, both partners
will jointly go through this certification process, support each other and cover
all its portion of the cost. The initial certification cost payable to Sun will
be shared 50/50. FSC will pay its share by providing licenses free of charge up
to the amount due.
Annual renewal fees have to be carried by licensee. Additional certifications
due to major changes in the products have to be carried by the party whose
product causes the additional certification. FSC will not carry fees caused by
changes in the Sun Cluster Software.
3RD PARTY PRODUCTS PROVIDED BY FSC
SNMP AGENT (SNMP RESEARCH INC)
FSC provides LICENSEE with license for the RTP SNMP master-agent. Subagents
would have to be procured by LICENSEE from another vendor.
SS7 STACK
Development support of the Ulticom SS7 stack and SS7 boards is the
responsibility of FSC. Inter-operational feature negotiations and support issues
between RTP (including OS, clustering software and RTP) and the Ulticom solution
are the responsibility of FSC.
SHAREWARE/FREEWARE USED IN RTP
as listed in the RTP Data Sheet.
Page 27 of 27