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Exhibit 10.12
LM3000 SOFTWARE AGREEMENT
This LM3000 Agreement (this "Agreement") is made as of March 30, 1998,
by and between Aironet Wireless Communications, Inc., a Delaware corporation
("Aironet"), and Telxon Corporation, a Delaware corporation ("Telxon").
BACKGROUND
WHEREAS, Telxon is the majority stockholder of Aironet;
WHEREAS, Telxon heretofore sold Aironet's LM3000 products to its
customers, and thereafter authored software upgrades for the LM3000 products to
make such products compatible with the IEEE 802.11 standard for wireless
computer networks (the "Upgrade"); and
WHEREAS, Aironet desires to receive from Telxon the right to utilize
the Upgrade.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements made herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. LICENSE. Telxon hereby grants a perpetual, royalty free, worldwide,
non-exclusive license to Aironet under Telxon's intellectual property rights
embodied in the Upgrade to make, port, copy, compile, decompile, assemble,
disassemble, merge and link the source code of the Upgrade, and to load,
support, service, maintain, repair, reconstruct, reconfigure and upgrade,
integrate, install, use, market, sell, offer for sale, lease and transfer copies
of the object code of the Upgrade. Aironet shall take the same steps to bind
transferees of copies of the Upgrade to a commercially reasonable software
license agreement, that Aironet takes with respect to its own software.
2. CONTRACTORS. Aironet may exercise the rights granted to it in
Section 1 either through its employees or through its contractors.
3. IMPLIED LICENSE. Subject to the restrictions imposed under the
software license agreement contemplated by Section 1, Aironet's customers shall
have an implied license to use and transfer copies of the object code of the
Upgrade, in the form delivered by Aironet to its immediate customer.
4. DELIVERY. Upon Aironet's execution of this Agreement, to the extent
that a copy is not already in Aironet's possession, Telxon shall deliver to
Aironet a copy of the source and object code of the Upgrade.
5. DISCLAIMER OF WARRANTY AND LIABILITY. TELXON IS PROVIDING THE
UPGRADE TO AIRONET "AS IS." TELXON MAKES NO REPRESENTATION OR WARRANTY OF ANY
KIND WITH RESPECT TO THE UPGRADE, WHETHER EXPRESS OR IMPLIED OR ARISING UNDER
ANY
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STATUTE OR FROM ANY COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT SHALL TELXON BE LIABLE FOR
ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA OR
OTHERWISE, WHETHER OR NOT TELXON IS MADE AWARE OF THE POSSIBILITY OF SUCH
DAMAGES.
6. GOVERNING LAW; JURISDICTION. This Agreement shall be construed under
and governed by the laws of the State of Ohio, without regard to conflict or
choice of laws statutes, regulations, rules or principles. Any action relating
to the execution or performance of this Agreement shall be brought in the
courts, state or federal, sitting in Summit County, Ohio, and each party hereto
consents to the jurisdiction and venue of such courts, and agrees not to contest
venue on the grounds of forum non conveniens or otherwise.
7. PRIOR AGREEMENTS SUPERSEDED. This Agreement supersedes all prior and
contemporaneous understandings and agreements, written or oral, between the
parties relating to the subject matter hereof.
8. ASSIGNABILITY. Neither this Agreement nor any right or obligation
hereunder may be assigned or delegated by Aironet to a direct competitor of
Telxon (a "Competitor"), and any such assignment or delegation shall be void and
of no effect. The merger, consolidation, asset sale, change of control, or any
other reorganization of Aironet with or into a Competitor, or of a Competitor
with or into Aironet, shall be deemed an assignment under this Section 7.4.
Subject to the foregoing, this Agreement shall be binding upon and enforceable
by, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns. Nothing in this Agreement is intended to give any person
not named herein the benefit of any legal or equitable right, remedy or claim
under this Agreement, except as expressly provided herein.
9. NUMBER AND GENDER. The use in this Agreement of singular, plural,
masculine, feminine and neuter nouns and pronouns, shall include the others as
the context may require.
10. EXECUTION IN COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same document. An executed faxed
counterpart of this Agreement shall be binding on the parties and for
evidentiary purposes, shall be deemed to be an original.
11. AMENDMENTS; WAIVERS. Amendments to and waivers of any term of this
Agreement must be in writing and executed by both parties hereto.
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IN WITNESS WHEREOF, each party has caused this Agreement to be executed
by its duly authorized representative as of the date first set forth at the
beginning hereof.
Aironet Wireless Communications, Inc.
By: /s/ Roger J. Murphy
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Roger J. Murphy, President
and Chief Executive Officer
Telxon Corporation
By: /s/ Kenneth W. Haver
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Kenneth W. Haver, Senior Vice President and
Chief Financial Officer
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