EXHIBIT 10.8
Attachment 5
SOFTWARE LICENSE AGREEMENT
interWAVE COMMUNICATIONS, INC.
&
BLUE SKY COMMUNICATIONS, INC.
This Software License Agreement (hereinafter referred to as
"Agreement") is made and entered into as of the 27th day of September 2000
(hereinafter referred to as "Effective Date"), between the parties, interWAVE
Communications, Inc., a company incorporated under the laws of Delaware, whose
registered office is 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000, (herein
referred to as "LICENSOR") and Blue Sky Communications, Inc., a company duly
incorporated in Georgia, and having its registered office at 000 Xxxxx Xxxxx
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 (hereinafter referred to as
"LICENSEE").
RECITALS
WHEREAS, LICENSOR is a manufacturer and supplier of telecommunications
equipment and related Software Products and has developed certain software,
know-how and secret and confidential information relating thereto;
WHEREAS, LICENSOR and LICENSEE have entered into that Master GSM
Products Supply Agreement of even date herewith, pursuant to which LICENSOR has
agreed to furnish certain telecommunications equipment, software, services and
products to LICENSEE (the " Supply Agreement");
WHEREAS, LICENSEE desires to use LICENSOR's Software Products for use
with equipment approved by LICENSOR,
NOW, THEREFORE, in consideration of the covenants, terms and conditions
hereinafter set forth, the parties agree as follows:
SECTION 1
DEFINITIONS
1.1 "Software Product" means the computer programs identified by
Software Product name in Schedule A, together with all related Documentation,
Updates and Releases. LICENSOR may amend Schedule A from time to time by issuing
new price lists, to delete discontinued Software Products, to add new Software
Products, or to otherwise change Schedule A, subject to the conditions on price
increases stated in the Supply Agreement, paragraph 2.2.
1.2 "Single Machine Use" means use of a Software Product only on a
single Designated Machine.
1.3 "Update" means any corrections or modifications, issued by
LICENSOR for a Software Product and identified by LICENSOR as an "Update" in
accordance with LICENSOR's procedure for software identification.
1.4 "Release" means any new releases or new versions issued by
LICENSOR for a Software Product and identified by LICENSOR as a "Release" in
accordance with LICENSOR's procedure for software identification.
1.5 "Designated Machine" means a machine marketed directly by
LICENSOR or indirectly by others with the approval of LICENSOR and on which the
Software Products are identified for use.
1.6 "Designated Site" means the building location housing a
Designated Machine connected in a LICENSEE's Network.
1.7 All other capitalized terms used herein shall have the same
meaning as ascribed to them in the Supply Agreement.
SECTION 2
SOFTWARE LICENSE
LICENSOR hereby grants to LICENSEE a personal non-exclusive,
non-transferable (except as provided in Section 3.2) revocable license for the
Single Machine Use of Software Products for which the single machine use fee has
been paid for LICENSEE's own internal business purposes. For each unit of
Software Product licensed hereunder, LICENSOR shall designate in writing to
LICENSEE the Equipment upon, or in, which such Software Product is to be used.
SECTION 3
SOFTWARE RESTRICTIONS AND LIMITATIONS
3.1 This Agreement, the Software Products and any licenses and
rights granted hereunder may not be sold, leased, assigned, sublicensed or
otherwise transferred, in whole or in part, by LICENSEE except as provided in
Section 3.2 below.
3.2 LICENSEE may relocate any Designated Machine, provided
LICENSEE promptly informs LICENSOR in writing of the subsequent location. If
such location is outside the country for which the original license was granted,
the LICENSEE must obtain approval from the LICENSOR and, if required, the
relevant U.S. Government Export Agency regarding such relocation.
3.3 LICENSEE may make and maintain a single backup copy of a
Software Product during the term of this Agreement, provided that LICENSEE shall
reproduce all copyright, trademark, confidential or other proprietary notices
appearing thereon or contained therein.
3.4 LICENSEE shall not disassemble, de-compile or reverse engineer
any Software Product in any form or manner and, except as provided in Section
3.3, LICENSEE shall not duplicate any Software Product. Interface information
necessary to achieve interoperability with the Software Product is available
upon written request to LICENSOR and payment of any then current administration
fee. There is no fee for interoperability information for Nortel equipment at
the time of the making of this license.
3.5 LICENSEE shall hold the Software Products in confidence and
shall not disclose the Software Products to any person other than employees,
contractors or consultants of LICENSEE for purposes specifically related to
LICENSEE's licensed use of the Software Products. LICENSEE shall take
appropriate steps by instruction, agreement, or otherwise to prevent
unauthorized disclosure by its officers, agents, employees, contractors or
consultants.
SECTION 4
SOFTWARE FEES AND PAYMENT
4.1 Software Products delivered to LICENSEE by LICENSOR become
licensed under this Agreement when the applicable license fee has been paid.
LICENSOR reserves the right to change its fees for Software Products, subject to
the conditions on price increases stated in the Supply Agreement, paragraph 2.2.
.
4.2 Payments under this agreement are due net thirty (30) days
from the date of receipt of the Seller's invoice, as provided in the Supply
Agreement, paragraph 7.1.
SECTION 5
SOFTWARE WARRANTY
5.1 LICENSOR warrants that:
(i) Software Products licensed under this Agreement will
perform in all material respects in accordance with the
then-current published documentation for a period of
twelve (12) months from the date of product compliance for
the Products purchased by Purchaser, hereinafter referred
to as "Warranty Period", and
(ii) all firmware and Software provided by Licensor under the
Supply Agreement shall cause the Equipment and Products to
perform in accordance with Specifications.
5.2 During the Warranty Period, LICENSOR shall take all reasonable
steps without charge to correct errors or defects in any Software Product and
all corrections for errors or defects shall, at LICENSOR's election, be provided
by LICENSOR to LICENSEE directly and incorporated in subsequent Updates from
LICENSOR. This claim, 5.2 shall constitute LICENSOR's sole obligation and
LICENSEE's sole remedy for breach of the warranty in Section 5.1.
5.3 Any modifications or alteration of a Software Product without
the approval of LICENSOR shall void LICENSOR's obligations under this Section 5
unless and until the Software Product is returned to its unaltered state.
5.4 LICENSOR does not warrant that the Software Products will meet
LICENSEE's requirements. LICENSOR does not warrant that the operation of the
Software Products will be uninterrupted or error free.
5.5 The provisions of Article 6 of the Supply Agreement are
incorporated by reference herein.
5.6 THE WARRANTIES SET FORTH IN THIS SECTION 5 ARE,
NOTWITHSTANDING ANY PROVISIONS IN THE SUPPLY AGREEMENT TO THE CONTRARY, IN
ADDITION TO THE WARRANTIES PROVIDED IN THE SUPPLY AGREEMENT, AND ARE LIMITED BY
THE LIMITATIONS IN THE SUPPLY AGREEMENT. THE WARRANTIES IN THE SUPPLY AGREEMENT
REGARDING SOFTWARE PRODUCTS AND THE WARRANTIES IN THIS AGREEMENT CONSTITUTE THE
ONLY WARRANTIES WITH RESPECT TO ANY SOFTWARE PRODUCT. THEY ARE IN LIEU OF ALL
OTHER WARRANTIES, CONDITIONS OR OTHER TERMS, WRITTEN OR ORAL, STATUTORY, EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY AND THE
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY
EXCLUDED.
SECTION 6
INTELLECTUAL PROPERTY RIGHTS AND AUDIT
6.1 The Software Products are protected by copyright, trade secret
and other rights. Except for the limited rights set out in Section 2, LICENSEE
is receiving no title or other interest in the Software Products all of which
shall remain vested in LICENSOR.
6.2 Subject to ten days prior written notice LICENSEE shall
permit the LICENSOR, or its authorized representatives reasonable access to any
machine where the software is stored, for the purpose of enabling LICENSOR to
audit the LICENSEE's use of the Software Product, provided that such access does
not interfere with the conduct of LICENSEE's business. LICENSEE shall, at not
cost to LICENSOR provide forthwith such assistance as LICENSOR may reasonably
require to enable LICENSOR or its authorized representatives to audit LICENSEE's
use of the Software.
SECTION 7
INFRINGEMENT
7.1 INFRINGEMENT. Sections 10.3 through 10.6 of the Supply Agreement
are incorporated by reference herein.
7.2 NON-STANDARD SOFTWARE PRODUCTS OR USES. LICENSOR shall not be
obligated to defend any suit or proceeding, or otherwise take any action, or
be liable for any costs or damages, if the infringement arises out of (i)
compliance with LICENSEE's instructions or specifications or any marking or
branding applied at the request of LICENSEE, (ii) modification of Software
Products other than by LICENSOR or not in accordance with LICENSOR's written
instructions, (iii) use of Software Products for other than the purposes for
which they were designed, or (iv) use of a release other than any of
LICENSOR's releases during the past two years of the Software Product.
SECTION 8
LIMITATIONS OF LIABILITY
LICENSOR SHALL IN NO EVENT HAVE OBLIGATIONS OR LIABILITIES TO LICENSEE
OR ANY OTHER PERSON IN CONTRACT TORT OR OTHERWISE, FOR CONSEQUENTIAL LOSS OR
DAMAGE, HOWSOEVER ARISING. THIS SHALL INCLUDE WITHOUT LIMITATION, LOSS OF
PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF OPPORTUNITY, OR INCIDENTAL,
INDIRECT, SPECIAL DAMAGES, EVEN IF LICENSOR KNEW, SHOULD HAVE KNOWN OR HAS BEEN
ADVISED OF THE POSSIBILITY THEREOF.
THE LIMITATIONS OF LIABILITY IN THE SUPPLY AGREEMENT, PARAGRAPH 32, ARE
INCORPORATED BY REFERENCE.
NOTHING IN THIS AGREEMENT SHALL LIMIT LICENSOR'S LIABILITY FOR DEATH OR
PERSONAL INJURY RESULTING FROM LICENSOR'S NEGLIGENCE.
SECTION 9
TERM AND TERMINATION
9.1 This Agreement shall commence on the Effective Date and shall
continue indefinitely until terminated by either party in accordance with this
Section 9.
9.2 Either party may terminate this Agreement forthwith at any
time by written notice if the other party: commits a material breach of this
Agreement and fails to remedy it within ninety (90) days after receipt of
written notice of such breach, which notice must describe the breach in
reasonable detail; or becomes insolvent, bankrupt, or has a receiver,
manager, administrative receiver or similar officer appointed over the whole
or any part of its assets. In the event of termination for LICENSEE breach,
all rights and license granted hereunder shall forthwith terminate and the
LICENSEE shall immediately cease using and destroy all copies of the
LICENSOR's Software.
9.3 LICENSEE shall not be relieved of its obligation of
confidentiality upon termination of this Agreement.
SECTION 10
GENERAL
10.1 This Agreement is governed by California law and the parties
submit to the non-exclusive jurisdiction of the state and federal courts in
Santa Xxxxx County, California. The parties agree to arbitration in San
Francisco, California under the Rules of Judicial Arbitration and Mediation
Service (JAMS) before a retired judge who is employed at JAMS.
10.2 This Agreement constitutes the entire Agreement and
understanding between the parties and supersedes all prior negotiations,
representations or agreements, whether written or oral.
10.3 This Agreement may be amended only by a written instrument signed
by a duly authorized representative of the party to be bound.
10.4 Failure by either party at any time to require performance by the
other party or to claim breach of any provision of this Agreement shall not be
construed as affecting any subsequent breach or the right to require performance
with respect thereto or to claim a breach with respect thereto.
10.5 If any part of this Agreement shall be invalid or unenforceable,
such invalidity or unenforceability shall not affect the validity or
enforceability of the remaining terms and conditions.
10.6 The license granted under this Agreement may not be assigned
without the consent of the LICENSOR, except in the event of a sale of all or
substantially all of the assets of LICENSEE or a merger of LICENSEE. LICENSOR
may assign this license in the event of a sale of all or substantially all of
the assets of LICENSOR or a merger of LICENSOR.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their representatives being thereunto duly authorized.
FOR INTERWAVE COMMUNICATIONS, INC. FOR BLUE SKY COMMUNICATIONS, INC.
By: By:
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Name: Xx. Xxxxxxxxx Xx Name: Xxxxx Xxxxxx
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Print or Type Print or Type
Title: Chief Executive Officer Title: Chief Executive Officer
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IN THE PRESENCE OF: IN THE PRESENCE OF:
By: By:
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Name: Name:
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Print or Type Print or Type
Date: Date:
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SCHEDULE A
The Software Products are:
1. interWAVE WAVEXpress/BSS Software Release
2. interWAVE WAVEView/OSS Software Release
3. interWAVE WAVEXchange/NSS Software Release
4. interWAVE Craft PC Software Release
5. interWAVE Network in a Box-TM-, NIB Software Release
All of these Software Products are provided under Single Machine Use
Licenses only.
