EXHIBIT 10.11
SOFTWARE LICENSE AGREEMENT
RouterWare, Incorporated ("RWI") a California corporation having its principal
office at 0000 XxxXxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx, 00000, Xxxxxx
Xxxxxx of America and Tut Systems, Inc. ("Licensee"), having its principal
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office at 0000 Xxxxxx Xxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of
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America agree as follows:
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1. OWNERSHIP
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a) RWI hereby grants to Licensee a perpetual worldwide royalty free non-
exclusive license to use and modify Licensed Software (refer to
Appendix A) for the sole purpose of creating executable, object, or
binary programs based, in part or whole, upon Licensed Software
("Binary Programs") which are to be incorporated into Licensee's
Product (refer to Appendix B).
b) RWI shall remain the exclusive and sole owner of the Licensed Software
offered for license under this agreement.
c) Licensed Software and its documentation are the valuable, proprietary,
confidential, and trade secret property of RWI.
d) RWI represents that the Licensed Software is protected by both United
States copyright law and international treaty provisions.
e) All copies, whether in part or whole, made of Licensed Software must
contain a valid RWI copyright notice.
f) Licensee may distribute Binary Programs so long as the distributed
Binary Programs are restricted in use to Licensee's Product and bear,
or are accompanied by, Licensee's own valid copyright notice.
g) Except as provided herein, neither party shall have any right or
ability to assign, transfer, or sub-license any obligations or benefit
under this agreement without the written consent of the other;
provided, however, that either party may assign and transfer this
agreement and its rights and obligations hereunder to any party who
succeeds to substantially all its business or assets.
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
2. DISTRIBUTION OF LICENSED SOFTWARE
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a) Unless otherwise stated, Licensee may not distribute any Licensed
Software or its documentation without the prior written consent of
RWI.
b) Licensee is permitted to distribute Licensed Software and its
documentation to all companies wholly owned by Licensee, companies
under common control with Licensee, Licensee's employees, contractors,
and subcontractors ("Other Entities") provided the following
conditions are met :
i) Distribution is solely for the purpose of assisting Licensee in
engineering Licensee's Product.
ii) Licensee assumes full responsibility for ensuring that Licensed
Software and its documentation distributed by Licensee is used
according to the terms and conditions of this agreement.
iii) Licensee must notify RWI, in writing, prior to distributing
Licensed Software or its documentation to its contractors and
subcontractors.
iv) Such notice must list the Licensed Software and documentation
being distributed, the full company name (if applicable), street
address, phone number, and contact name of each contractor and
subcontractor.
c) Violation of the terms of Section 2b shall result in immediate payment
to RWI by Licensee for licenses for Licensed Software to Other
Entities found to be in violation of this agreement. The amounts due
will be the then current list price license fees for said licenses.
3. INDEMNIFICATION
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a) RWI will hold Licensee harmless from all claims, liability, and
damages arising from unmodified Licensed Software.
b) Licensee will hold RWI harmless from all claims, liability, and
damages arising from Binary Programs composed, in part or whole, from
modified Licensed Software.
c) Except with respect to RWI's obligation to indemnify Licensee as
provided in this agreement, in no event shall RWI's liability for any
damages to Licensee, Licensee's customers, ever exceed the actual
price paid for the Licensed Software.
d) This Software License Agreement shall be construed, interpreted and
governed by the laws of the State of California and any action
hereunder shall be brought only in California.
4. LIMITED SOFTWARE WARRANTY
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a) RWI warrants that the Licensed Software does not infringe upon any
patent or copyright or otherwise violate the rights of any third
party.
b) If the Licensed Software supplied by RWI is found to infringe upon any
patent or copyright or otherwise violate the rights of any third
party, RWI must, in a timely manner, provide replacement source code
that is functionally equivalent to the Licensed Software and free of
the infringement or violation.
c) RWI will assume responsibility for all costs required to defend the
Licensed Software supplied by RWI against any patent, copyright, or
other violation claim
5. STANDARD MAINTENANCE AND SUPPORT
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a) RWI will provide Licensee, free of charge, with 90 days of Standard
Maintenance and Support, for each individual item comprising the
Licensed Software, commencing from the date each individual item is
received, in its entirety, by the Licensee.
b) Standard Maintenance and Support is comprised of the following
services:
i) RWI will make available to the Licensee any and all updates and
upgrades for the Licensed Software.
ii) RWI will provide Licensee, in a timely manner, with corrections
to Licensed Software shown to contain non-conformance to the
functions and features claimed to be supported by RWI.
iii) RWI will provide License with technical support for Licensed
Software via telephone, fax, electronic mail and FTP Server.
c) Standard Maintenance and Support is subject to cancellation if license
fee payments become past due.
6. EXTENDED MAINTENANCE AND SUPPORT
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a) Maintenance and support beyond the period defined under Standard
Maintenance and Support is offered under Extended Maintenance and
Support.
b) The services offered under Extended Maintenance and Support are
identical to those offered under Standard Maintenance and Support
(refer to Section 5b).
c) Extended Maintenance and Support is offered for year long periods at
the rate of fifteen percent of the original license fee.
d) Extended Maintenance and Support may be purchased on a product by
product basis.
e) Licensee has a thirty day grace period after the Standard Maintenance
and Support period has expired to purchase Extended Maintenance and
Support, after which additional re-instatement charges may apply.
7. EXPORT
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a) The Licensed Software may be a regulated commodity under the
International Emergency Economic Powers Act, formerly the Export
Control Act of 1996, its amendments, and the regulations thereunder.
Licensee is solely responsible for securing any applicable export
licenses for Licensed Software or any direct product thereof.
b) Licensee certifies that, without a BXA license or License Exception,
they will neither reexport or release the Licensed Software, or its
technology, to a national of a country listed on the Commerce Control
List Groups D:1, E:2, or any country under embargo.
c) Licensee also certifies that they will not export the direct product
of the Licensed Software, or its technology, to a country listed on
the Commerce Control List Groups D:1, E:2, or any country under
embargo.
ROUTERWARE
8. DELIVERABLES
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a) RWI is to provide Licensee with "C" source codes for items listed in
Appendix A on 3.5" DOS formatted floppy disk(s).
b) RWI is to provide Licensee printed documentation for the items listed
in Appendix A.
9. PAYMENT
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a) Licensee is to pay a one time license fee of [*] for the deliverables
listed in Appendix A.
b) NET30 terms of payment apply to all amounts due that are not disputed
in good faith. Amounts past due will accrue late payment charges per
the following schedule: For amounts 1 to 30 days past due, a charge of
1% of the amount due will be assessed. For each additional 30 day
period that amounts remain past due, the charge will increase by 1% of
the amount originally past due.
c) Any rights assigned to Licensee by this agreement are subject to
suspension for the duration that amounts payable to RWI for the
license fee remain past due.
d) Payment of taxes on the Deliverables are the sole responsibility of
the Licensee.
RouterWare, Inc. TUT SYSTEMS, INC.
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COMPANY NAME LICENSEE COMPANY NAME
/s/ Xxxx X Xxxxxxxxxxxx DEC. 15, 1997 /s/ Xxxxxx Xxxxxx 12-16-97
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SIGNATURE DATE SIGNATURE DATE
________________________ ________________________
NAME NAME
________________________ ________________________
TITLE TITLE
[*] Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Appendix A
The following RouterWare products are to be licensed to Licensee and herein
referred to as "Licensed Software":
PRODUCT NAME
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1. PPP
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2. MP
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3. CCP
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4. DHCP SERVER
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5. NAT
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6.
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7.
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8.
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9.
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10.
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ROUTERWARE
Appendix B
The following description defines Licensee's Product:
A High-speed xDSL Internet access system which includes a compact modular
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central office site concentrator and stand alone SDSL modems complete with
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built-in Ethernet interfaces.
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