SOFTWARE LICENSE AGREEMENT
Exhibit 10.17
This Software License Agreement (the “Agreement”) is entered into as of 01/11/2006 (the “Effective
Date”), by and between Broadcom Corporation, a California corporation with its principal office at
00000 Xxxxx Xxxxxxx , Xxxxxx, Xxxxxxxxxx 00000 (“Broadcom”), and Aruba Networks , a corporation
with a place of business at 0000 Xxxxxxxx Xxx, Xxxxxxxxx, XX, 00000, Xxxxxx Xxxxxx (“Licensee”).
The parties agree as follows:
1. DEFINITIONS .
1.1 “Authorized Location” shall mean the location set forth in the applicable Software
Description Form, or if none is listed, then the address for Licensee set forth above.
1.2
“Authorized Licensee Product” means the specific product listed in the applicable Software
Description Form, or if none is listed, then any system level product sold by Licensee that
incorporates the Broadcom Product and the Software and includes other hardware and software
provided by Licensee.
1.3
“Broadcom Product” means any of the proprietary integrated circuit product(s) sold by
Broadcom with which the Software was designed to be used, or their successors.
1.4 “Derivative Work” means any discrete modification to the Software made by Licensee
pursuant to this agreement and any modified, altered, enhanced or adapted version of the Software,
or derivative work thereof (as that term is defined under United States copyright law) based on the
Software.
1.5 “End User Agreement” means a written, legally enforceable agreement that (i) stipulates
that the Software is licensed, not sold, and that title to and ownership of the Software and any
portion thereof remain with Broadcom or its licensors; (ii) disclaims all express and implied
warranties on behalf of Broadcom, and exclude liability of Broadcom and its licensors for any
special, indirect, exemplary, incidental or consequential damages; and (iii) prohibits the end user
from (a) copying the Software, except as reasonably necessary for internal back-up purposes, (b)
using and/or transferring the Software to any third party apart from a Authorized Licensee Product,
(c) modifying the Software, (d) attempting to reverse engineer, decompile or disassemble any
portion of the Software, or (e) exporting the Software or any underlying technology in
contravention of any applicable U.S. or foreign export laws and regulations.
1.6 “Object Code” means those portions of the Software, if any, furnished to Licensee in
object code or machine readable form, including, without limitation, any bit images or other binary
files for FPGAs.
1.7 “Software” shall mean that software which may be provided by Broadcom to Licensee from
time to time and which is described in a Software Description Form executed by the parties that
references this Agreement.
1.8 “Source Code” means those portions of the Software, if any, furnished to Licensee in
source code or human readable form, including, without limitation, any Verilog, HTL or RTL code.
2. LICENSE GRANT; OWNERSHIP
2.1 License Grants. Subject to the terms and conditions of this Agreement, Broadcom hereby
grants to Licensee, under all of Broadcom’s intellectual property rights in and to the Software, a
non-exclusive, non-transferable, royalty-free license (i) to use, modify and create Derivative
Works from the Source Code, and to
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use the Object Code, without right to sublicense, solely at the Authorized Location, solely
for the purpose of incorporating the Software or Derivative works in Authorized Licensee Products
for use with the Broadcom Product, and only if in compliance with Section 2.2 below; and (ii) to
reproduce, distribute and sublicense, in object code form only, copies of the Software or
Derivative Works only as incorporated in Authorized Licensee Products for use with the Broadcom
Product to resellers, distributors and end users of such Authorized Licensee Products, and only if
in compliance with Section 2.3 below.
2.2 Restriction on Modification. If and to the extent that the Software is designed to be
compliant with any published communications standard (including, without limitation, DOCSIS,
HomePNA, IEEE, and ITU standards), Licensee may not make any modifications to the Software that
would cause the Software or the accompanying Broadcom Products to be incompatible with such
standard. Licensee represents and warrants that it will not take any action that would create
obligations that would conflict with Licensee’s obligations hereunder, including without
limitation, creating derivative works of the Software that contain code licensed under an “Open
Source License” (as defined below), or using the Software or derivative works thereof to merge
with, link to, make function calls to, or share data structures with software available under an
Open Source License. Licensee shall defend and indemnify Broadcom against all liabilities, losses,
damages, costs and expenses relating to or arising out of a breach by Licensee of the foregoing
representation and warranty. Open Source Licenses includes, without limitation, a software license
that requires as a condition of use, modification, and/or distribution of such software that such
software or other software incorporated into, derived from or distributed with such software be (a)
disclosed or distributed in source code form; (b) be licensed for the purpose of making derivative
works; or (c) be redistributable at no charge.
2.3 Restriction on Distribution. Licensee shall only distribute the Software or Derivative
Works to resellers, distributors and end users either (a) physically embedded in the Authorized
Licensee Products in a manner that is not readily accessible to end users; or (b) pursuant to an
End User Agreement. By way of example only, an End User Agreement shall be required to distribute
the Software or Derivative Works on a CD-ROM, floppy disk, or by electronic transmission.
2.4 Proprietary Notices. Licensee shall not remove, efface or obscure any copyright or
trademark notices from the Software. Licensee shall include reproductions of the Broadcom
copyright notice with each copy of the Software and any Derivative Work, except where such Software
is embedded in a manner not readily accessible to the end user. Licensee acknowledges that any
symbols, trademarks, tradenames, and service marks adopted by Broadcom to identify the Software
belong to Broadcom and that Licensee shall have no rights therein.
2.5 Ownership. Broadcom shall retain all right, title and interest, including all
intellectual property rights, in and to the Software. Licensee hereby covenants that it will not
assert any claim that the Software or Derivative Works created by or for Broadcom infringe any
intellectual property right owned or controlled by Licensee. Licensee shall own all right, title
and interest in any Derivative Works to the Software made by Licensee, subject to Broadcom’s
ownership of the underlying Software and the restrictions contained herein.
2.6 No Other Rights Granted. Apart from the license rights expressly set forth in this
Agreement, Broadcom does not grant and Licensee does not receive any ownership right, title or
interest nor any security interest or other interest in any intellectual property rights relating
to the Software, nor in any copy of any part of the foregoing. Licensee shall not use, license,
sell or otherwise distribute the Software or any Derivative Work except as provided in this
Agreement, and shall not attempt to reverse engineer, decompile or disassemble any portion of the
Object Code.
3. NO WARRANTY OR SUPPORT
3.1 No Warranty. THE SOFTWARE IS OFFERED “AS IS,” AND BROADCOM GRANTS AND
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LICENSEE RECEIVES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, COMMUNICATION
OR CONDUCT WITH LICENSEE, OR OTHERWISE. BROADCOM SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE OR NONINFRINGEMENT CONCERNING THE SOFTWARE OR ANY
UPGRADES TO OR DOCUMENTATION FOR THE SOFTWARE. WITHOUT LIMITATION OF THE ABOVE, BROADCOM GRANTS NO
WARRANTY THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND GRANTS NO
WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM INCLUDING, WITHOUT LIMITATION, ITS CORRECTNESS,
ACCURACY OR RELIABILITY.
3.2 No Support. Nothing in this agreement shall obligate Broadcom to provide any support for
the Software. Broadcom may, but shall be under no obligation to, correct any defects in the
Software and/or provide updates to licensees of the Software. Licensee shall make reasonable
efforts to promptly report to Broadcom any defects it finds in the Software, as an aid to creating
improved revisions of the Software.
3.3 End User Support. Licensee shall, at its own expense, be solely responsible for providing
technical support and training to its customers for Authorized Licensee Products, and Broadcom
shall have no obligation with respect thereto. Licensee shall be solely responsible for, and
Broadcom shall have no obligation to honor, any warranties that Licensee provides to its customers
or to end users with respect to the Software or Derivative Works. Licensee shall defend any claim
against Broadcom arising in connection with any such warranties, express, implied, statutory, or
otherwise, and shall pay any settlements or damages awarded against Broadcom that are based on any
such warranties.
3.4 Dangerous Applications. The Software is not designed, intended, or certified for use in
components of systems intended for the operation of weapons, weapons systems, nuclear
installations, means of mass transportation, aviation, life-support computers or equipment
(including resuscitation equipment and surgical implants), pollution control, hazardous substances
management, or for any other dangerous application in which the failure of the Software could
create a situation where personal injury or death may occur. Licensee understands that use of the
Software in such applications is fully at the risk of Licensee.
3.5 Third Party Software. Licensee acknowledges that the Third Party Software is not owned by
Broadcom, and may be subject to additional restrictions imposed by its licensor. Any such
additional restrictions will be set forth in Exhibit A. NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, BROADCOM OFFERS NO WARRANTIES (WHETHER EXPRESS OR IMPLIED) OR SUPPORT OF ANY KIND
WITH RESPECT TO THE THIRD PARTY SOFTWARE, EXCEPT THAT BROADCOM WILL PASS THROUGH TO LICENSEE, IF
AND TO THE EXTENT PERMITTED, ANY WARRANTIES EXPRESSLY PROVIDED BY SUCH THIRD PARTIES TO BROADCOM
FOR SUCH THIRD PARTY SOFTWARE.
4. TERM AND TERMINATION
4.1 Term and Termination. This Agreement shall become effective on the date first set forth
above and shall remain in effect perpetually unless terminated as provided below. If Licensee
defaults in a material obligation under this Agreement, and if the default is curable, also fails
to cure such default thirty (30) days after written notice of such default, Broadcom may
immediately terminate and cancel this Agreement and the licenses granted hereunder upon written
notice to Licensee. Licensee may terminate this Agreement at any time upon written notice to
Broadcom and fulfillment of its obligations under Section 4.2 herein.
4.2 Effect Of Termination. Upon any termination of this Agreement, the rights and licenses
granted to Licensee under this Agreement shall immediately terminate; provided, however, that
sublicenses of the Software or Derivative Works in object code format, to the extent validly
granted to end users pursuant to Section
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2.1(ii) prior to termination of this Agreement, shall survive such termination subject to
compliance with the obligations set forth herein. Upon termination, Licensee shall ship to
Broadcom, within thirty (30) days, all tangible items in its possession or control which are
proprietary to Broadcom; and Licensee shall destroy or return to Broadcom, at Broadcom’s option,
all copies of the Software and Derivative Works (including, without limitation, Source Code) in its
possession or control.
4.3 Survival. The provisions of Sections 1 , 2.2 , 2.3 , 2.4 , 2.5 , 2.6 , 3 , 4 , 5 , 6 ,
and 7 shall survive the termination of this Agreement.
5. CONFIDENTIALITY
5.1 Existing NDA (if Applicable). If Broadcom and Licensee already have put in place a
non-disclosure agreement that would protect communications made under this Agreement (the “NDA”),
then all such communications shall be subject to the terms and conditions of such NDA, which the
parties acknowledge is in full force and effect. The parties agree that the Software and any
accompanying documentation will be considered Confidential Information under the NDA. In the event
of a conflict between the terms of this Agreement and the terms of the NDA, the terms of this
Agreement will prevail.
5.2 Obligations if No NDA Exists. If no NDA exists, then the following terms shall apply:
Licensee acknowledges and agrees that the Software, any documentation relating to the Software, and
any other information (if such other information is identified as confidential or should be
recognized as confidential under the circumstances) provided to Licensee by Broadcom hereunder
(collectively, “Confidential Information”) constitute the confidential and proprietary information
of Broadcom, and that Licensee’s protection thereof is an essential condition to Licensee’s use and
possession of the Software. Licensee shall retain all Confidential Information in strict
confidence and not disclose it to any third party or use it in any way except as permitted by this
Agreement without Broadcom’s express written consent. Licensee will exercise at least the same
amount of diligence in preserving the secrecy of the Confidential Information as it uses in
preserving the secrecy of its own most valuable confidential information, but in no event less than
reasonable diligence. The prohibitions contained in this Section 5.2 preclude dissemination of
Confidential Information to Licensee’s subsidiaries, affiliates, contractors or subcontractors,
except in the event of a permitted assignment pursuant to Section 7.1 . Information shall not be
considered Confidential Information if and to the extent that it: (i) was in the public domain at
the time it was disclosed or has entered the public domain through no fault of Licensee; (ii) was
known to Licensee, without restriction, at the time of disclosure as proven by the files of
Licensee in existence at the time of disclosure; or (iii) becomes known to Licensee, without
restriction, from a source other than Broadcom without breach of this Agreement by Licensee and
otherwise not in violation of Broadcom’s rights.
5.3 Source Code Protection. Licensee shall not under any circumstances copy, duplicate or
otherwise reproduce the Source Code in any manner except as provided herein. Licensee is granted
the right to make one (1) archival or backup copy of the Source Code, which shall be marked as an
archival copy and as the confidential and proprietary property of Broadcom to which access is
restricted. Licensee agrees to inform all employees and contractors who are given access by
Licensee to the Software, including the Source Code, the Object Code, or any accompanying
documentation, that such materials are confidential and trade secrets of Broadcom licensed to
Licensee as such.
5.4 Return of Confidential Information. Notwithstanding the foregoing, all documents and
other tangible objects containing or representing Broadcom Confidential Information and all copies
thereof which are in the possession of Licensee shall be and remain the property of Broadcom, and
shall be promptly returned to Broadcom upon written request by Broadcom or upon termination of this
Agreement.
6. LIMITATION OF LIABILITY
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EXCEPT FOR A BREACH BY LICENSEE OF SECTION 2 (LICENSE GRANT; OWNERSHIP) OR A BREACH BY
EITHER PARTY OF SECTION 5 (CONFIDENTIALITY), IN NO EVENT SHALL LICENSEE, BROADCOM OR ANY OF
BROADCOM’S LICENSORS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL
DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO
LOSS OF PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7. MISCELLANEOUS
7.1 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors and assigns, provided, however that Licensee may not assign this
Agreement or any rights or obligation hereunder, directly or indirectly, by operation of law or
otherwise, without the prior written consent of Broadcom, and any such attempted assignment shall
be void. Notwithstanding the foregoing, Licensee may assign this Agreement to a successor to all
or substantially all of its business or assets to which this Agreement relates that is not a
competitor of Broadcom.
7.2 Notices. All notices between the parties shall be in writing and shall be deemed to have
been given if personally delivered or sent by certified mail (return receipt requested), or
telecopy, to the other party’s legal department at the address set forth in this Agreement, or such
other address as is provided by notice as set forth herein. Notices shall be deemed effective upon
receipt if personally delivered, three (3) business days after it was sent if by certified mail, or
one (1) business day after it was sent if by telecopier.
7.3 Governing Law; Venue. This Agreement shall be governed by the laws of California without
regard to any conflict-of-laws rules, and the United Nations Convention on Contracts for the
International Sale of Goods is hereby excluded. The sole jurisdiction and venue for actions
related to the subject matter hereof shall be the state and federal courts located in the County of
Orange, California, and both parties hereby consent to such jurisdiction and venue.
7.4 Severability. All terms and provisions of this Agreement shall, if possible, be construed
in a manner which makes them valid, but in the event any term or provision of this Agreement is
found by a court of competent jurisdiction to be illegal or unenforceable, the validity or
enforceability of the remainder of this Agreement shall not be affected if the illegal or
unenforceable provision does not materially affect the intent of this Agreement. If the illegal or
unenforceable provision materially affects the intent of the parties to this Agreement, this
Agreement shall become terminated.
7.5 Equitable Relief. Licensee hereby acknowledges that its breach of this Agreement would
cause irreparable harm and significant injury to Broadcom that may be difficult to ascertain and
that a remedy at law would be inadequate. Accordingly, Licensee agrees that Broadcom shall have
the right to seek and obtain immediate injunctive relief to enforce obligations under the Agreement
in addition to any other rights and remedies it may have.
7.6 Export Regulations. Licensee agrees and warrants that it shall comply, at its own
expense, with the U.S. Foreign Corrupt Practices Act and all export and import laws, restrictions,
national security controls and regulations of the United States and any applicable foreign agency
or authority. Licensee shall not export, or re-export, or authorize the export or re-export of the
Software or any other product, technology, or information that Licensee obtains or learns
hereunder, or any copy or direct product thereof, in violation of any of such laws, restrictions,
or regulations or without any license or approval required thereunder. Any and all obligations of
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Broadcom to provide Software or any media in which the Software is contained shall be
subject in all respects to such laws, restrictions, and regulations.
7.7 Waiver. The waiver of, or failure to enforce, any breach or default hereunder shall not
constitute the waiver of any other or subsequent breach or default.
7.8 Entire Agreement. This Agreement, along with any associated Software Description Forms,
sets forth the entire Agreement between the parties and supersedes any and all prior proposals,
agreements and representations between them, whether written or oral. This Agreement may be
changed only by mutual agreement of the parties in writing. In the event of a conflict between the
terms of this Agreement and the terms of a Software Description Form, the term of the Software
Description Form will prevail.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the
Effective Date.
| Aruba Networks | BROADCOM CORPORATION | |||||||||
By:
|
/s/ Xxxxx Xxxx
|
By: | /s/ Xxxxxx Xxxx
|
|||||||
| Name: Xxxxx Xxxx | Name: Xxxxxx Xxxx | |||||||||
| Title: Senior Director, Legal Affairs | Title: VP/GM, Network Switching | |||||||||
SOFTWARE DESCRIPTION FORM
Referenced Agreement:
Licensee: Aruba Networks
Date: 01/11/2006
With respect to the Software identified below, the terms and conditions of the referenced Software
License Agreement, as modified by any terms and conditions identified below, will apply:
Software Being Licensed:
BCM56xx, BCM56xxx StrataSwitch and StrataXGS software.
1) Devices Drivers for controlling switch chip
2) API, defining high level interface to perform common chip functions
3) API’s enabling advanced switching features including but not limited to L2 to L7 functions.
4) Diagnostics and tests for various switch chips.
5) CLI (Command Line Interface)
6) Network Protocol and application S/W including, but not limited to SNMP, Spanning Tree.
7) Application and Driver software for public domain operating systems such as Linux. This
software includes User Interface and configuration SW
1) Devices Drivers for controlling switch chip
2) API, defining high level interface to perform common chip functions
3) API’s enabling advanced switching features including but not limited to L2 to L7 functions.
4) Diagnostics and tests for various switch chips.
5) CLI (Command Line Interface)
6) Network Protocol and application S/W including, but not limited to SNMP, Spanning Tree.
7) Application and Driver software for public domain operating systems such as Linux. This
software includes User Interface and configuration SW
ROBOswitch™ BCM532xM, BCM533xM, BCM534xM and BCM538xM (the “IC”), a proprietary integrated circuit
that incorporates a wire-speed, layer 2 switch with Fast Ethernet and Gigabit Ethernet ports, and
is
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providing Licensee with the IC and various other hardware components solely for internal evaluation of the IC.
1) Devices Drivers for controlling switch chip
2) API, defining the high level interface to perform common chip functions
3) API’s enabling L2 switching features
4) CLI (Command Line Interface)
5) Network Protocol and application S/W
6) Application and Driver software for public domain operating systems such as Linux. This
software includes User Interface and configuration S/W.
7) “WebSmart” web-based control software and it’s associated API and drivers
1) Devices Drivers for controlling switch chip
2) API, defining the high level interface to perform common chip functions
3) API’s enabling L2 switching features
4) CLI (Command Line Interface)
5) Network Protocol and application S/W
6) Application and Driver software for public domain operating systems such as Linux. This
software includes User Interface and configuration S/W.
7) “WebSmart” web-based control software and it’s associated API and drivers
Authorized Licensee Product:
Authorized Location:
At any facility that is owned or occupied exclusively by the Licensee.
Additional Restrictions on Third Party Software:
This Software Description Form and the referenced Software License Agreement are the complete and
exclusive Agreement regarding the parties’ rights and obligations with respect to the Software
hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Software Description Form to be duly
executed as of the later of the dates set forth below.
| Aruba Networks (Licensee Name) |
BROADCOM CORPORATION | |||||||||
By:
|
/s/ Xxxxx Xxxx
|
By: | /s/ Xxxxxx Xxxx
|
|||||||
| Name: Xxxxx Xxxx | Name: Xxxxxx Xxxx | |||||||||
| Title: Senior Director, Legal Affairs | Title: VP/GM, Network Switching | |||||||||
| Date: 1/22/06 | Date: 2/16/06 | |||||||||
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