EXHIBIT 10.37
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (the "Agreement") is entered into as of
December 10, 1999 (the "Effective Date"), by and between Rhythms Links, Inc. a
company duly organized and existing under the laws of the State of Delaware
("Customer"), and COPPER MOUNTAIN NETWORKS, INC., a company duly organized and
existing under the laws of the State of Delaware ("Copper Mountain").
RECITALS
WHEREAS, concurrently with the execution of this Agreement, Customer
and Copper Mountain are entering into an Equipment Purchase Agreement (the
"Equipment Purchase Agreement") pursuant to which Customer is purchasing from
Copper Mountain a Digital Subscriber Line ("DSL") networking system and
subscriber equipment;
WHEREAS, the DSL networking Equipment and Subscriber Equipment contains
software in executable code; and
WHEREAS, Copper Mountain desires to furnish such software to Customer,
and Customer desires to receive such software from Copper Mountain, on the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, Copper Mountain and Customer agree as follows:
AGREEMENT
1. DEFINITIONS
All capitalized terms used but not otherwise defined in this Agreement
shall have the meanings given such terms in the Equipment Purchase Agreement.
"FIRMWARE" means the software in executable code contained in the
Equipment.
"NETWORK FIRMWARE" means the Firmware contained in the Network
Equipment.
"SUBSCRIBER FIRMWARE" means the Firmware contained in the Subscriber
Equipment.
"WARRANTY PERIOD" means the following: (a) for Network Firmware, the
same warranty period as for Network Equipment under the Equipment Purchase
Agreement; and (b) for Subscriber Firmware, the same warranty period as for
Subscriber Equipment under the Equipment Purchase Agreement.
2. DELIVERY OF SOFTWARE
Copper Mountain shall deliver to Customer one (1) copy of the Network
Firmware and Subscriber Firmware in machine-readable object code form with the
Network Equipment and Subscriber Equipment.
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3. GRANT OF LICENSE
Subject to the terms and conditions of this Agreement, Copper Mountain
hereby grants to Customer, and its customers which use the Equipment, a
perpetual, non-exclusive, royalty-free, worldwide license, effective upon
Customer's acceptance of the Equipment containing such Firmware, to use the
Firmware solely in conjunction with the use of such Equipment for the duration
of the useful life of such Equipment.
4. RESTRICTIONS ON USE
All use of the Firmware not expressly permitted by this Agreement is
prohibited. Without limiting the generality of the foregoing:
4.1 COPYING. Customer may make up to two (2) copies of the Network
Firmware and the Subscriber Firmware solely for archival or back-up purposes.
All other copying is prohibited.
4.2 OTHER RESTRICTIONS. Customer may not (and shall not authorize any
third party to) alter, modify, adapt or translate any of the Firmware or create
any derivative work based thereon. Customer may not reverse engineer, decompile,
disassemble, or otherwise attempt to derive the human-readable source code for
the Firmware. Customer may not alter or remove any copyright, trade secret,
patent, proprietary, or other legal notice on or in copies of the Firmware.
4.3 TRANSFERS. Customer may not sublicense, rent, loan, lease, or
otherwise transfer to any third party any of the Firmware, except that the
Subscriber Firmware may be transferred to, and Customer's rights under this
Agreement to use the Subscriber Firmware may be assigned to a purchaser of the
Subscriber Equipment containing the Subscriber Firmware. Any attempted transfer
or assignment in violation of the foregoing shall be void, except as otherwise
provided in Section 15.1 of this Agreement.
5. NO LICENSE FEES
The right to use the Firmware is included in the purchase price of the
Equipment and there are no separate license fees or royalties for the Firmware.
6. UPGRADES
This Agreement does not require Copper Mountain to provide any software
support services to Customer or to provide Customer with any enhancements,
updates, upgrades, new versions, or new releases (collectively, "Upgrades") of
the Firmware. Software support services shall be provided under a separate
agreement. If Copper Mountain furnishes any Upgrades to Customer, whether under
a separate agreement or otherwise, and Customer elects to receive such upgrades,
Customer shall promptly install (or permit Copper Mountain to install) and begin
using the Upgrade, and Customer's use of the Upgrade shall be subject to the
terms and conditions of this Agreement. Copper Mountain agrees to assist in
Customer's testing of new software releases and Upgrades when requested by
Customer, and Customer's decision to implement new software releases or Upgrades
will be based upon the successful completion of those tests. For support
purposes, the "current" software release is defined as the last software release
not known
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to contain any problems, errors or bugs. Copper Mountain also agrees that
Customer may elect to use the current software release or Upgrade, or one of the
two previous software releases or Upgrades not known to contain problems, errors
or bugs, and that Copper Mountain will support those releases and Upgrades. Any
installation of Upgrades by Customer in accordance with procedures and
instructions provided by Copper Mountain shall not result in any termination of,
or adversely affect, any warranties by Copper Mountain relating to the
Equipment.
7. REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS. Copper Mountain represents that the Firmware and
all documentation related thereto does not infringe upon any copyright, patent,
trademark, services xxxx, trade name, trade secret, or other proprietary right
of any third party. Copper Mountain represents that, to the best of its
knowledge, it has the necessary rights and licenses required to grant Customer
the right to purchase the Equipment and license the Firmware as provided under
this Agreement.
7.2. LIMITED WARRANTY. During the applicable Warranty Period, Copper
Mountain warrants that the Firmware shall be free from programming errors that
impair the proper and intended performance and operation of the Equipment
containing such Firmware, and that all Equipment when using such Firmware and/or
Upgrades shall be Year 2000 Compliant (as provided in the Equipment Purchase
Agreement). All warranties provided herein with respect to Subscriber Firmware
shall be transferable to any permitted transferee of the Subscriber Equipment
containing such Firmware, but in no event shall the warranty on such Subscriber
Firmware exceed the Warranty Period applicable to the related Subscriber
Equipment as provided in the Equipment Purchase Agreement.
7.2 LIMITATIONS. The warranty in Section 7.2 does not apply to
Firmware that has been altered, modified, or improperly installed by anyone
other than Copper Mountain, (except Firmware or Upgrades installed in accordance
with the documentation provided by Copper Mountain). The warranty in Section 7.2
may not be transferred to any subsequent purchaser of the Equipment or any other
third party except by a subsequent purchaser from Customer in its ordinary
course of business, except as otherwise provided in Section 15.1 of this
Agreement.
7.3 REMEDIES. If, during the applicable Warranty Period, Customer
reports a malfunction in any Equipment containing Firmware and returns such
Equipment to the designated Copper Mountain facility, and Copper Mountain
determines that the malfunction is covered by the warranty in Section 7.2
(subject to the limitations in Section 7.3), Copper Mountain shall, as
Customer's sole and exclusive remedy for breach of these warranties and at
Copper Mountain's cost and option, either (a) correct the programming errors in
the Firmware, (b) furnish replacement Equipment with equivalent grade,
functionality and quality to Customer, or (c) if Copper Mountain determines that
(a) and (b) are not feasible, refund the purchase price paid for the Equipment
containing the defective Firmware. This action will be accomplished in a
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commercially reasonable timeframe, and in no circumstances shall Copper Mountain
be obligated to procure substitute equipment for Customer.
7.4 DISCLAIMERS.
(a) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.2, COPPER
MOUNTAIN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE FIRMWARE,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
(b) Customer acknowledges that it has not relied on any
representations or warranties other than those in Section 7.2 or in any
documentation accompanying the Equipment.
8. INFRINGEMENT CLAIMS
8.1 INDEMNIFICATION. Subject to Section 8.3 below, Copper Mountain
agrees to defend, indemnify and hold harmless Customer, its officers, directors,
employees, agents and representatives from and against all claims, demands,
losses, damages, liabilities, costs and expenses (including reasonable
attorney's fees) arising out of or relating to any claim, demand or judgment
that the authorized and proper use of the Firmware or the contents of any
documentation related thereto infringe any patent, copyright, trademark, service
xxxx, trade secret or other proprietary right of a third party; provided,
however, that Customer (a) promptly notifies Copper Mountain in writing of the
claim, (b) gives Copper Mountain the sole authority to control the defense and
settlement of the claim, and (c) cooperates and, at Copper Mountain's request
and expense, assists in the defense of the claim. Settlement of any such claim
by Copper Mountain shall include a complete and unconditional release in favor
of Customer.
8.2 MITIGATION. If any infringement claim covered by Section 8.1
arises or in Copper Mountain's opinion is likely to occur, Copper Mountain shall
immediately, at its option, (a) procure for Customer the right to use the
infringing Firmware, (b) replace the infringing Firmware with a non-infringing
substitute product that does not adversely affect the functionality of the
Equipment, or (c) refund to Customer the purchase price of the Equipment
containing the infringing Firmware. If Customer continues to use Firmware after
receiving notice of a claim or a ruling that Customer's use of such Firmware
infringes a third party's rights and after Customer shall have refused to comply
with Copper Mountain's proposed solution to such infringement in accordance with
this Section 8.2, Customer shall be responsible for any liability resulting from
such continued use after such refusal.
8.3 EXCLUSIONS. Copper Mountain shall have no liability for any claim
described in Section 8.1 if the claim is based on or arises from Customer's (a)
improper or unauthorized use or modification of any Firmware; (b) use of a
superseded or altered release of any Firmware if the claim would have been
avoided by use of current or unaltered versions or releases of such Equipment
that Copper Mountain provided to Customer; or (c) combination or use of any
Firmware with equipment, computer programs, data or other items not furnished by
Copper Mountain (or authorized by Copper Mountain in writing for such
combination or use), if the claim would have been avoided by use of the Firmware
without such equipment, computer
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programs, data or other items. Customer shall indemnify and hold Copper Mountain
harmless for and against any and all liability, damages, losses, costs and
expenses (including attorney's fees) arising from any claim described in this
Section 8.3.
8.4 ENTIRE LIABILITY. Section 8 states Customer's exclusive remedy
and Copper Mountain's entire liability of any infringement claim relating to the
Firmware.
9. LIMITATION OF LIABILITY
9.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND,
INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST SAVINGS, OR LOST DATA,
ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CLAIMS UNDER ARTICLE 8 HEREOF,
THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ANY CLAIMS
OR CAUSES OF ACTION ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE EQUIPMENT
CONTAINING FIRMWARE (WHETHER IN CONTRACT, IN TORT OR OTHERWISE) SHALL NOT EXCEED
THE AGGREGATE AMOUNT PAID BY CUSTOMER TO COPPER MOUNTAIN FOR THE EQUIPMENT.
9.2 Customer understands that Copper Mountain's pricing is predicated
on the limitations of Copper Mountain's liability set forth in Section 9.1 and
acknowledges that Copper Mountain would not enter into this Agreement without
such limitations.
10. CONFIDENTIALITY INFORMATION
Customer acknowledges that all technical documentation and information
delivered to Customer by Copper Mountain under this Agreement, and all other
information relating to the design, development, configuration, use,
installation, operation and maintenance of the System, constitute confidential
or proprietary information of Copper Mountain (collectively, "Confidential
Information"). Customer shall not duplicate or disclose to any third person, and
shall not use for any purpose other than operation and maintenance of the
System, any Confidential Information without the prior written consent of a duly
authorized officer of Copper Mountain or unless required pursuant to any
process, proceeding or other action by any governmental, law enforcement agency
or judicial authority. The foregoing restrictions shall not apply to any
Confidential Information that Customer can demonstrate: (a) was or is wholly and
independently developed by Customer or lawfully received by Customer free of
restriction from another source having the rights to furnish such Confidential
Information; (b) has become generally available to the public without breach of
this Agreement; or (c) at the time of disclosure to Customer was known to
Customer free of restriction, as evidenced by documentation in Customer's
possession.
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11. INTELLECTUAL PROPERTY RIGHTS
This Agreement confers upon Customer only certain limited rights to use
the Firmware. Except for such rights, Copper Mountain retains all rights, title
and interest in and to the Firmware and any and all maintenance releases,
enhancements, updates, upgrades, new versions, or new releases, modifications,
and derivative works, including, but not limited to, any patent, trademark,
trade secrets, copyright and any other intellectual property or proprietary
rights related thereto.
12. TAXES
Copper Mountain shall pay all taxes, export duties, and other charges
and expenses imposed by any government authority within the United States in
connection with the delivery of the Firmware to Customer.
13. TERM AND TERMINATION
13.1 TERM. This Agreement shall become effective as of the Effective
Date and shall remain in effect until and unless terminated as set forth below.
13.2 TERMINATION. Customer may terminate this Agreement with or
without cause at any time, effective immediately upon notice to Copper Mountain.
Copper Mountain may terminate this Agreement, effective immediately upon notice
to Customer, if Customer breaches Section 4, or if Customer breaches any
material obligation under this Agreement and fails to cure the breach within
forty-five (45) days after Copper Mountain gives Customer written notice of the
breach.
13.3 EFFECTS OF TERMINATION. Upon termination of this Agreement for
any reason, all license rights granted to Customer in this Agreement shall
expire immediately (except for Equipment and Firmware with respect to Equipment
already purchased by Customer, for which the rights granted hereunder shall
continue), and Customer must return all copies of the Firmware not already
installed in Equipment owned by Customer or permitted transferees to Copper
Mountain promptly after any such termination, and Customer shall only retain one
copy of Firmware not loaded in Equipment previously.
13.4 SURVIVAL. The rights and obligations of the parties under
Sections 4, 7.2 through 7.4 (solely for the duration of the applicable Warranty
Period), 7.5, 8, 9, 10, 11, 12, 13.3, 13.4 and 15 shall survive termination of
this Agreement for any reason.
14. AUTHORITY
Each party hereby represents and warrants to the other party that (a)
such party is duly organized, validly existing and in good standing under the
laws of the place of its establishment or incorporation; (b) such party has
taken all action necessary to authorize it to enter into this Agreement and
perform its obligations under this Agreement; (c) this Agreement shall
constitute the legal, valid and binding obligations of such party; and (d)
neither the execution of this Agreement, nor the performance of such party's
obligations hereunder, shall conflict with, result
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in a breach of, or constitute a default under, any provision of the Articles of
Incorporation, business license, Bylaws or similar organizational documents of
such party, or of any law, rule, regulation, authorization or approval of any
government entity, or of any agreement to which it is a party or by which it is
bound.
15. GENERAL PROVISIONS
15.1 ASSIGNMENT. Subject to Section 4.3, neither party may assign this
Agreement or any right or interest under this Agreement, nor delegate any
obligation to be performed under this Agreement, without the other party's prior
written consent (which shall not be unreasonably withheld), except that either
party may, with or without the other party's consent, (a) assign this entire
Agreement in connection with a merger, reorganization, or sale of all or
substantially all of its assets to a third party; (b) assign part or all of this
Agreement to one or more of its affiliates; and (c) subcontract portions of its
obligations under this Agreement as long as the assigning party remains
responsible for such obligations. Any attempted assignment in contravention of
this Section 15.1 shall be void.
15.2 NON-WAIVER; SEVERABILITY. Any delay or failure by either party to
exercise any right or remedy under this Agreement shall not constitute a waiver
of such right or remedy thereafter or of any other right or remedy. If any
provision of this Agreement is determined to be unenforceable, the remaining
provisions shall remain in full force and effect.
15.3 NOTICES. All notices and other communications provided for
hereunder shall be in writing and shall be mailed by first-class, registered or
certified mail, postage paid, or delivered personally, by overnight delivery
service or by facsimile, computer mail or other electronic means, with
confirmation of receipt, addressed as follows:
If to Copper Mountain: Copper Mountain Networks, Inc.
00000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx
Fax No: (000) 000-0000
If to Customer: Rhythms Links, Inc.
0000 X. Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxx Colo. 80112
Attn: Xxx Xxxxxxxx
Fax No: (000) 000-0000
Either party may by like notice specify or change an address to which
notices and communications shall thereafter be sent. Notices sent by facsimile,
computer mail or other electronic means shall be effective upon confirmation of
receipt, notices sent by mail or overnight delivery service shall be effective
upon receipt or when delivery is refused, and notices given personally shall be
effective when delivered or when delivery is refused.
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15.4 PUBLICITY. Copper Mountain and Customer agree that neither party
shall originate any press release or other public announcement related to this
Agreement, written or oral, without the prior written consent of the other
party, except as required by law or a court order.
15.5 NONDISCLOSURE. Copper Mountain and Customer agree that either
party may disclose the existence of this Agreement, but neither party shall make
any disclosure relating to the terms of or performance under this Agreement to
any third party (other than their accountants and attorneys) without the prior
written consent of the other party, except as required by law or a court order.
15.6 GOVERNING LAW AND VENUE. All matters arising in connection with
this Agreement or the enforcement or construction thereof shall be governed by
(without regard to conflict-of-laws provisions) and resolved in accordance with
the laws of the State of California. Copper Mountain and Customer each hereby
irrevocably (a) agrees that any suit, action or other legal proceeding arising
from or relating to this Agreement shall be brought in a court of competent
jurisdiction in San Francisco, California, which court shall have exclusive
jurisdiction over any controversy arising from or related to this Agreement, (b)
consents to the jurisdiction of such court in any such suit, action or
proceeding, and (c) waives any objection it may have to the laying of venue of
any such suit, action or proceeding in such court and waives any claim that any
such suit, action or proceeding has been brought in an inconvenient forum.
Service of process in any suit, action or proceeding may be made in any manner
permitted by law.
15.7 ATTORNEY'S FEES. The prevailing party in any litigation between
the parties relating to this Agreement shall be entitled to recover its
reasonable attorney's fees and court costs, in addition to any other relief it
may be awarded, from the non-prevailing party.
15.8 CONSTRUCTION. The headings of sections and subsections of this
Agreement are for convenience only and shall not be construed to affect the
meaning of any provision of this Agreement.
15.9 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original and which together shall be one and
the same agreement.
15.10 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement, together with
the exhibits attached hereto, constitutes the entire agreement between the
parties and supersedes all prior oral or written negotiations and agreements
between the parties with respect to the subject matter hereof. No modification,
variation or amendment of this Agreement shall be effective unless made in
writing and signed by the parties. Any additional or different terms stated in
any purchase order or other document delivered to Copper Mountain by Customer in
connection with this Agreement shall have no effect.
15.11 DISPUTE RESOLUTION. If any dispute arises between the parties
relating to the interpretation, breach or performance of this Agreement or the
grounds for the termination thereof, and the parties cannot resolve the dispute
within thirty (30) days of a written request by either party to the other party,
the parties agree to hold a meeting, attended by individuals with
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decision-making authority regarding the dispute, to attempt in good faith to
negotiate a resolution of the dispute prior to pursuing other available
remedies. If, within sixty (60) days after such meeting, the parties have not
succeeded in negotiating a resolution of the dispute, such dispute shall be
submitted to final and binding arbitration under the then current commercial
rules and regulations of the American Arbitration Association (the "AAA")
relating to voluntary arbitrations. The arbitration shall be held in San
Francisco, California. The arbitration shall be conducted by one arbitrator, who
is knowledgeable in the subject matter at issue in the dispute and who will be
selected by mutual agreement of the parties or, failing such agreement, shall be
selected in accordance with AAA rules. Each party shall initially bear its own
costs and legal fees associated with such arbitration. The prevailing party in
any such arbitration shall be entitled to recover from the other party actual
attorneys' fees, costs and expenses incurred by the prevailing party in
connection with such arbitration. The decision of the arbitrator shall be final
and binding on the parties. The arbitrator shall prepare and deliver to the
parties a written, reasoned opinion conferring its decision. The arbitrator
shall have no power or authority to make any award that provides for punitive or
exemplary damages or other damages excluded by this Agreement, or that otherwise
departs from the plain meaning of this Agreement. Judgment on the award so
rendered may be entered in any court having competent jurisdiction thereof.
Notwithstanding the foregoing, Copper Mountain shall have the unequivocal right
to obtain timely injunctive from a court of law pursuant to Section 15.11.
9.
IN WITNESS WHEREOF, Copper Mountain and Customer have caused this
Agreement to be executed by their duly authorized representative.
COPPER MOUNTAIN NETWORKS, INC. RHYTHMS LINKS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxx Xxxxxxx
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Title: President and CEO Title: SVP Networks
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