Exhibit 10.9
SOFTWARE LICENSE, SOFTWARE SUPPORT and HARDWARE WARRANTY AGREEMENT
Revision 6: 5 January, 1998
An agreement is entered into between:
Catapult Communications and/or Catapult Communications
Corporation (CCC) Limited (also CCC)
000 Xxxxx Xxxxxxx Xxxx 00 Xxxxxxxx Xxxxx, Xxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxxxx Xxxxxxxxx 0X00 0XX XX
and
(LICENSEE)
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Referenced Purchase Order Number(s):
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Effective Date of Agreement:
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DESIGNATED COUNTRY:
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DEFINITIONS Terms in this agreement which are in capital letters shall have
the meanings specified below:
LICENSED SOFTWARE means all or any portion of the source code or object code,
or derivatives thereof, for controlling the operation of a central processing
unit (CPU), and other information and documentation specifically listed in
the Schedule of Licensed Software (Appendix A).
OBJECT CPU(s) means the CPU(s) on which the LICENSED SOFTWARE will operate,
as specified in Appendix A.
DESIGNATED COUNTRY means the country in which the LICENSED SOFTWARE is
licensed to operate.
1. SOFTWARE LICENSE
GRANT OF LICENSE CCC, at the request of LICENSEE, grants to LICENSEE a
nontransferable and non-exclusive right to use the LICENSED SOFTWARE in the
DESIGNATED COUNTRY, solely for LICENSEE's own internal business purposes
and solely on or in conjunction with OBJECT CPU(s). No right is granted for
the use of the LICENSED SOFTWARE directly for any third party, or for any use
by any third party of the LICENSED SOFTWARE. CCC shall furnish the LICENSED
SOFTWARE in machine readable form to LICENSEE. If an OBJECT CPU becomes
inoperable, LICENSEE may use LICENSED SOFTWARE on a replacement CPU.
LICENSE RESTRICTIONS The Grant of License is subject to restrictions as
stated below.
- LICENSEE agrees that it will not use the LICENSED SOFTWARE except as
authorized herein.
- LICENSED SOFTWARE is copyrighted and title to all copies is retained by CCC.
No rights, title or interest in and to any trademarks or trade names of CCC is
granted hereunder. Nothing in this agreement grants to the LICENSEE any
rights to sell, lease, or otherwise dispose of the LICENSED SOFTWARE.
- LICENSEE agrees that it will not make, or permit to be made, any copies of
the LICENSED SOFTWARE except that LICENSEE may make one copy of the LICENSED
SOFTWARE solely for backup or archival purposes.
- LICENSEE agrees not to attempt and to use best efforts to prevent LICENSEE's
employees and contractors from attempting to reverse engineer, reverse
compile, modify, translate or disassemble the LICENSED SOFTWARE or any
complete or partial copy.
- LICENSEE agrees that it will not without the prior written consent of CCC
transmit directly or indirectly the LICENSED SOFTWARE to any country outside
the DESIGNATED COUNTRY. If the LICENSED SOFTWARE is transmitted outside
of DESIGNATED COUNTRY, LICENSED SOFTWARE is subject to additional
fees as stated in the Fees section, and subject to the terms stated in the
Export Control section.
- Restrictions related to using the LICENSED SOFTWARE only on the OBJECT
CPU(s) and to making copies of the LICENSED SOFTWARE only for backup and
archival purposes do not apply to the compiler of the LICENSED SOFTWARE.
LIMITED SOFTWARE WARRANTY CCC warrants only that LICENSED SOFTWARE will, if
properly installed by LICENSEE, substantially conform with the published
documentation and specifications for such LICENSED SOFTWARE. The foregoing
warranty shall apply to LICENSED SOFTWARE for a period of ninety (90) days
from the date of receipt. During this 90 day period, LICENSEE is entitled to
the same level of support service specified in the following Software Support
Section.
WARRANTY EXCEPTIONS The software warranty set forth above shall not apply to
any defects or problems caused in whole or in part by (i) any defect in any
portion of any hardware or equipment; (ii) the failure of any portion of any
hardware or equipment to function in accordance with applicable manufacturer's
specifications; (iii) any modification or enhancement made to the LICENSED
SOFTWARE by LICENSEE or any third person or entity other than CCC; (iv) any
software program, hardware, firmware, peripheral or communication device used
in connection with the LICENSED SOFTWARE; (v) the failure of LICENSEE or any
third person or entity to follow the most current instructions provided by
CCC from time to time with respect to proper use of the LICENSED SOFTWARE;
or (vi) the negligence of LICENSEE or any other third party or entity.
NO OTHER WARRANTIES EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT, CCC MAKES NO
OTHER WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH REGARD TO LICENSED SOFTWARE AND SUPPORT SERVICES, THE
ACCOMPANYING WRITTEN MATERIALS, AND ANY ACCOMPANYING HARDWARE.
2. SOFTWARE SUPPORT LICENSEE wishes to have CCC provide Software Support
Services for the LICENSED SOFTWARE. The Software Support Services will begin
after the expiration of the 90 day warranty of LICENSED SOFTWARE, and will
continue for 1 year. The Software Support Services will automatically renew
for an additional year on each anniversary date upon receipt of the fees for
the services described in the Fees section, unless the services are
terminated by either party pursuant to the Termination section of this
Agreement. The Software Support Services apply only to the most current
release of LICENSED SOFTWARE.
CCC agrees to provide LICENSEE with Software
Support Services as stated below:
- CCC will send to LICENSEE any new releases of the LICENSED SOFTWARE which
CCC has scheduled for release during the term of this agreement.
- In the event that CCC makes available problem fixes, enhancements and
upgrades (which are not separately licensed) to other Licensees of CCC, CCC
shall provide the same to LICENSEE at no additional cost.
- CCC will fix problems in the LICENSED SOFTWARE reported to CCC by LICENSEE
during the term of this agreement.
- CCC shall provide LICENSEE with technical support during normal business
hours to help answer or solve technical inquiries and problems. Technical
support services are provided via telephone, e-mail and fax.
- For emergency problems, CCC will provide the staff time necessary to fix the
problem and LICENSEE will cover any of CCC's reasonable travel expenses.
LICENSEE agrees to the following regarding CCC Software Support Services:
- LICENSEE accepts the responsibility for upgrading to the most current
release of LICENSED SOFTWARE provided by CCC.
- LICENSEE agrees that it will appoint at most one point of contact to work
with CCC on support issues for each DCT-S system covered under this
Agreement, and that this point of contact will participate in the full
training course for the LICENSED SOFTWARE offered by CCC.
2
- LICENSEE will report problems in accordance with the Problem Reporting
System described in Appendix C. Most importantly, LICENSEE will (i) identify,
document and report each problem with the Licensed Software necessitating
support service (using the Problem Report form), and (ii) supply CCC with
all reasonable documentation and assistance necessary to demonstrate and allow
CCC to diagnose the problem.
3. HARDWARE DCT-S hardware is warranted as described in Appendix B.
4. FEES AND REPORTS
LICENSED SOFTWARE FEES LICENSEE shall, within thirty days after receipt of
LICENSED SOFTWARE by LICENSEE, pay to CCC the fees for the rights granted
hereunder with respect to the LICENSED SOFTWARE and OBJECT CPU(s). The
software license fees are stated in the above-referenced Purchase Order.
If LICENSEE needs to use the software outside of the DESIGNATED COUNTRY and
CCC approves such use, LICENSEE will be responsible for paying to CCC the
difference between the purchase price of the LICENSED SOFTWARE and the list
price of the LICENSED SOFTWARE in the country into which it is being
transferred. The payment is due at the time of the transfer, and export laws
of the DESIGNATED COUNTRY are in effect. If the period of use in the other
country will be less than thirty (30) days, LICENSEE is exempted from paying
the additional software fees.
SOFTWARE SUPPORT FEES LICENSEE shall, before the software warranty expires,
pay to CCC at the address specified above the then-current published annual
Software Support Services fees for the LICENSED SOFTWARE. The support fee for
the first year for LICENSED SOFTWARE is stated in the above-referenced
Purchase Order. To renew the Software Support Services for an additional
year, LICENSEE shall pay to CCC at the address specified above the
then-current published annual support fees before the expiration of the then
current term of the annual Software Support Services. Failure to pay the full
annual fees within said periods may cause immediate termination of the
Software Support Services by CCC.
REPORTS CCC may request (but not more frequently than annually) that LICENSEE
furnish to CCC a statement, certified by an authorized representative of
LICENSEE, that the LICENSED SOFTWARE is being used by LICENSEE solely on
appropriate OBJECT CPU(s).
TAXES Except for taxes imposed on CCC's income, LICENSEE shall bear all taxes
imposed as a result of the existence or operation of this agreement, and any
tax which LICENSEE is required to withhold or deduct from payments to CCC.
5. OTHER TERMS
CONFIDENTIAL INFORMATION The party that is disclosing confidential
information shall clearly identify such information as confidential
information when furnishing it to the receiving party. In the case of
information transmitted in writing, such identification will be made by
marking such information clearly as confidential information; and in the case
of information transmitted orally, the disclosing party shall provide, within
thirty (30) days after the disclosure, a written communication clearly
identifying such confidential information as it has provided. All
confidential information shall be kept in confidence by the receiving party,
the measure of that confidence being that the receiving party shall use the
same degree of care, but no less than a reasonable degree of care, to prevent
and avoid unauthorized disclosure of its own information of a similar nature.
All confidential information may be used by the receiving party solely for
the purposes contemplated in the Agreement. The receiving party shall not be
liable for any disclosure of such confidential information if the information
at the time of disclosure:
(a) was in the receiving party's possession before receipt from the disclosing
party; b) is a matter of public knowledge through no fault of the receiving
party; c) has been rightfully received by the receiving party from a third
party without a duty of confidentiality; d) has been disclosed by the
disclosing party to a third party without duty of confidentiality on the
third party; e) has been independently developed by the receiving party; f)
has been disclosed under operation of law; or g) is disclosed by the
receiving party with the disclosing party's prior written approval.
IF LICENSEE purchases the rights to any source code, LICENSEE acknowledges
and agrees that use of this code is on a confidential basis for the sole and
exclusive use of LICENSEE, and not for sale, sub license or disclosure to
third parties. LICENSEE agrees that it will not (i) publish, disclose or
otherwise divulge the source of the LICENSED SOFTWARE to any person except to
employees and independent contractors of LICENSEE who have entered into
nondisclosure agreements containing obligations at least as restrictive as
the nondisclosure terms contained in the Confidential Information section of
this Agreement, either during the term or after termination of this
Agreement, nor (ii) permit its employees or independent contractors to so
divulge any such source, without the prior written consent of CCC. LICENSEE
agrees to take all necessary steps to prevent unauthorized disclosure of
such source code. In some cases, CCC may impose additional restrictions
regarding the use and safekeeping of its source code, and will require
LICENSEE to execute a more restrictive agreement.
TERMINATION Unless canceled pursuant to its terms, this Agreement shall be in
effect for so long as customer rightfully retains possession of the LICENSED
SOFTWARE. Either party may terminate this agreement in the event of a breach
by the other party which is not cured following thirty (30) days written
notice from the non-breaching party. Upon termination, customer must destroy
all copies of LICENSED SOFTWARE. If the termination of Software Support
Services is caused by breach of contract by CCC, CCC shall not have any
obligation to LICENSEE except to refund to LICENSEE a pro-rata portion of the
support fee paid.
PROPRIETARY RIGHTS INDEMNITY CCC shall defend at CCC's expense any claim,
suit or proceeding brought against LICENSEE insofar as it is based on a claim
that the LICENSED SOFTWARE constitutes a direct infringement of a US or UK
copyright of a third party. To qualify for such a defense and payment
LICENSEE must: (i) give CCC prompt written notice of any such claim; and (ii)
allow CCC to control and fully cooperate with CCC in the defense and all
related settlement negotiations. CCC shall pay to LICENSEE all damages
finally awarded to third parties which LICENSEE is obligated to pay but shall
not be responsible for any compromise made without its consent. Upon notice
of an alleged infringement or if in CCC's opinions such a claim is likely,
CCC shall have the right, at its option, to obtain the right to continue
licensing the LICENSED SOFTWARE; in the event that this option is not
reasonably available in CCC's opinion, LICENSEE's sole and exclusive remedy
shall be to terminate this Agreement, to return the LICENSED SOFTWARE to CCC
and to obtain a refund from CCC of the fee paid by LICENSEE for such LICENSED
SOFTWARE.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES IN NO EVENT SHALL CCC BE LIABLE FOR
ANY LOST REVENUE, PROFIT OR DATA, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL, OR PUNITIVE DAMAGES (HOWEVER CAUSED AND REGARDLESS OF THEORY OF
LIABILITY) ARISING OUT OF THE USE OF OR INABILITY TO USE LICENSED SOFTWARE,
EVEN IF CCC HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
FORCS MAJEURE Except for payment, neither LICENSEE nor CCC shall be liable
for any failure to perform its obligations under this agreement if such
failure arises from any act of god, war, strike, lockout, or other labor
dispute, riot, civil commotion, fire, flood, earthquake, drought, legislation
or other causes beyond the parties' control.
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US. GOVERNMENT RESTRICTED RIGHTS The LICENSED SOFTWARE is provided with
RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is
subject to restrictions as set forth in subparagraph (c)(l)(ii) of the
Rights in Technical Data and Computer Software clause at DFARS 252.227-7013
or subparagraphs (c)(1) and (2) of the Commercial Computer Software -
Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is CCC as
listed above.
EXPORT CONTROL LICENSEE acknowledges that the laws and regulations of the
DESIGNATED COUNTRY may restrict the export and re-export of certain
commodities and technical data, including the LICENSED SOFTWARE. LICENSEE
agrees that it will not export or re-export the LICENSED SOFTWARE without the
appropriate license from the DESIGNATED COUNTRY and foreign government.
GOVERNING LAW For goods shipped to North America and the Far East, this
contract is deemed made in the state of California and shall be interpreted
under the Uniform Commercial Code and other laws of the state of California
in force at the date of the contract. For goods shipped to Europe and Israel,
this contract is deemed made in England and shall be interpreted under the
laws of England in force at the date of the contract. The parties agree that
the United Nations Convention on Contracts for the International Sale of
Goods (1980) is specifically excluded from application to this Agreement.
ATTORNEY'S FEES If either LICENSEE or CCC employs attorneys to enforce any
rights arising out of or relating to this Agreement, the prevailing party
shall be entitled to recover its reasonable attorney's fees, costs and other
expenses.
WAIVER The failure of either party to exercise any right hereunder shall not
be deemed to be a waiver of such right. The failure of either party to
require performance by the other party of any provision of this Agreement
shall not affect the full right to require such performance at any time
thereafter; nor shall the waiver by either party of a breach or any provision
hereof be taken or held to be a waiver of the provision itself.
SURVIVAL Rights to payment, indemnity, confidentiality, limits to liability,
and except as otherwise expressly provided herein, any right of action for
breach of this Agreement prior to termination shall survive any termination
of this Agreement.
NOTICE Notices under this Agreement shall be sufficient only if personally
delivered or delivered by a major commercial rapid delivery courier service
to a party at its address stated above, or as amended pursuant to this
subsection.
HEADINGS Headings are for convenience only and are not to be used in the
interpretation of this agreement.
GENERAL This agreement and CCC's Terms and Conditions set forth the entire
agreement and understanding between the parties as to the subject matter
hereof. This agreement shall prevail notwithstanding any conflicting terms or
legends which may appear in LICENSED SOFTWARE. This Agreement may not be
modified except in writing signed by a duly authorized representative of each
party. If any provision of this Agreement is held to be illegal or
unenforceable, that provision shall be limited or eliminated to the minimum
extent necessary so that this Agreement shall otherwise remain in full force
and effect and enforceable. Failure of one party to require the other party
to adhere to any of the terms of this Agreement in no way alters the
enforceability of any of the terms in this Agreement. Neither this agreement
nor any rights hereunder, in whole or in part, shall be assignable or
otherwise transferable by LICENSEE without written permission from CCC.
IN WITNESS WHEREOF, each party has caused this agreement to be executed in
duplicate originals by its duly authorized representatives on the dates
entered below.
CATAPULT COMMUNICATION LICENSEE:
CORPORATION / LIMITED ------------------------
By Date By Date
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Name Name
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Title Title
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APPENDIX A
SCHEDULE OF LICENSED SOFTWARE
The LICENSED SOFTWARE includes all software modules purchased with LICENSEE
Purchase Order referenced above, and also includes all associated on-line
documentation.
License of software for each DCT-S system is based on the size of the system.
Each DCT-S system consists of hardware (one or more workstations and one or
more DCT8000 Modular Physical Interface Host cards and/or one or more DCT8210
TSC co-processor cards)
Some of software is licensed on a per-Workstation basis (e.g., D-driver Base
Software, VOX, Test Suites), and some software is licensed based on the total
number of MPI and TSC co-processor cards ("Software Units"). MPI and TSC
cards may not be moved between DCT-S systems.
The LICENSED SOFTWARE for each DCT-S system is listed below:
DCT-S System #
----------------------
OBJECT CPU Configuration [e.g., Workstation with 3 MPIs, 1 TSC, 1 VOX]
----------
OBJECT CPU Serial Number
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Total Number Software Units:
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DCPL2000 D-driver Base Software
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-------- ----------------------
-------- ----------------------
-------- ----------------------
-------- ----------------------
-------- ----------------------
-------- ----------------------
DCT-S System #
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OBJECT CPU Configuration [e.g., Workstation with 3 MPIs, 1TSC]
-----------------
OBJECT CPU Serial Number
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Total Number Software Units:
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DCPL2000 D-driver Base Software
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-------- ----------------------
-------- ----------------------
-------- ----------------------
-------- ----------------------
-------- ----------------------
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APPENDIX B
DCT-S HARDWARE WARRANTIES
DCT-S HARDWARE
The following hardware has a 180-day warranty:
DCT8000 Modular Physical Interface with a mezzanine card (DCT8001,
DCT8002, DCT8003, DCT8004 or DCT8005)
DCT8010 E1 Mezzanine and Modular Physical Interface Host Card
DCT8020 T1 Mezzanine and Modular Physical Interface Host Card
DCT8030 Serial Mezzanine and Modular Physical Interface Host Card
DCT8040 S/T Mezzanine and Modular Physical Interface Host Card
DCT8050 CII Mezzanine and Modular Physical Interface Host Card
DCT8210 Time Slot Controller
DCT8601 E1 VOX
DCT8602 T1 VOX
DCT8800 Primary Rate Interface
DCT8500 ISDN BRI Interface
DCT8700 Codec to SLIC Conversion
DCT8880 Time Slot Interchange Card (TSI)
DCT8888 CMI/E1 Translator Card
SP2403 1-Slot VME Cage with Power Supply
SP2406 SBus Extender Chassis
SP2407 7-Slot VME CAge with Power Supply
SP2308 8 Serial Port Extender
During the warranty periods, failed products may be returned to CCC for repair
or replacement (at CCC's discretion). Customer must obtain from CCC a return
material authorization number (RMA Number) prior to returning products to CCC.
All products must be returned freight pre-paid. Products purchased in North
America and the Far East outside of Japan and Israel must be returned to the
CCC office in Mountain View, California; products purchased in Europe must be
returned to the CCC office in England; products purchased in Japan must be
returned to the CCC office in Japan. After the warranty period, failed
products may be returned to CCC for repairs; these repairs are chargeable to
LICENSEE.
SUN PRODUCTS
The warranty period for Sun software is 90 days. For workstations and
accessory products, the warranty period is one year. For products purchased
in North America, the customer should call 0-000-000-0000 and provide their
CPU System Serial Number to Sun support. Sun will generally be able to
diagnose the problem over the phone and send replacement or loaner hardware
to the customer within 48 hours.
Products purchased in Europe must be returned to the CCC office in England.
Products purchased in Japan must be returned to the CCC office in Japan.
Products purchased in Israel must be returned to the CCC office in North
America
After the warranty periods, customers should work directly with Sun
Microsystems.
RDI PRODUCTS
RDI products come with a one-year warranty for parts and labor. For Products
purchased in North America, customer should contact RDI at 0-000-000-0000
between 7 AM and 6 PM Pacific Time. European customers should contact CCC in
England; Japanese customers should contact CCC in Japan. RDI global support
can also be reached at 0-000-000-0000 via fax or xxxxxxx@xxx.xxx via email.
NO OTHER WARRANTIES
EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT, CCC MAKES NO OTHER WARRANTIES
OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO
IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
WITH REGARD TO DCT-S HARDWARE.
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APPENDIX C
DCT-S SOFTWARE PROBLEM REPORTING SYSTEM
The Problem Reporting System is designed to insure that all DCT-S D-driver
software problems uncovered by customers are reported in sufficient detail
to allow Catapult Communications Corporation ("CCC") to determine their
causes and implement their fixes.
The customer will submit each Problem Report to CCC in writing. Though
electronic mail is the preferred means of communication, fax and
non-electronic mail will also be considered in writing.
The customer will (i) identify, document and report each problem with the
Licensed Software necessitating support service (using the Problem Report
form), and (ii) supply CCC with all reasonable documentation and assistance
necessary to demonstrate and allow CCC to diagnose the problem.
Each Problem Report must contain the information required in the DCT Problem
Report, which is available electronically in the /doc/common subdirectory
with the filename "prform.txt".
NUMBERING SCHEME for their own records, customers should assign unique
numbers to each Problem Report given to CCC. Problem report numbers should
consist of the following fields, separated by dashes:
1. Customer ID consisting of the characters: "ABC".
2. [Release number].v[ersion number].b[ranch number] of the software
3. Three digit sequential number - to be recycled with each new copy of
the D-driver software released to the customer.
For example, the first problem noted in release 10, version 2 of D-driver is
numbered "ABC-10v4-001", the second one noted for this same version is
"ABC-10v4-002", etc. When a new version of D-driver is released to the
customer, the Problem Report sequence numbers recycle, so that the first
problem encountered in the next version is numbered "ABC-10v5-001".
CLASSIFICATION SCHEME Each Problem Report will be classified as to the
severity of the problem. The classifications are:
CLASS 1 - Critical bug. Brings the entire D-driver system to a halt. No
progress is possible until the problem is fixed, and there is no way to work
around the problem.
CLASS 2 - Severe bug. Although some functions continue to work, substantial
parts of the system do not operate, and there is no way to work around the
inoperable portions of the system.
CLASS 3 - Specific bug. System works except for the specific feature for
which the problem is being reported, and there is no way to work around the
problem.
CLASS 4 - Critical bug (same as Class 1), except there is a way to work
around the problem so that the systems functions properly.
CLASS 5 - Severe bug (same as Class 2), except there is a way to work around
the problem so that the system functions properly.
CLASS 6 - Specific bug (same as Class 3), except there is a way to work
around the problem so that the system functions properly.
CLASS 7 - Cosmetic bug. System performance is fine, but presentation to the
user is incorrect.
CLASS 8 - Not a bug, but a request for software modification (i.e. software
works as specified, but a change in specification is desired).
When the customer submits a Problem Report, the customer will propose an
initial classification to the report. However, CCC retains final authority
for Problem Report classification.
PROBLEM FIXES CCC will make its best efforts to provide very timely
responses to all Problem Reports, especially those in Classes 1, 2, and 3. In
order to insure prompt responses to Problem Reports, CCC will supply an
Acknowledgment to each Report within 5 working days. CCC will use its best
efforts to fix all Class 1-7 problems by the next software release. Next
software release means the next scheduled release of the software (provided
the Problem Report is received at least 60 days prior to schedule release
date).
