Exhibit 10.3
SOFTWARE LICENSE AGREEMENT
This Agreement is made and entered into as of Jan. 13, 1999, by and between
RADVision Ltd. ("Licensor" or "RADVision"), with its offices at ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Israel, and RADCOM Ltd. ("Licensee" or "RADCOM")
with its offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Licensor is the owner of the Software Products listed in Exhibit A ("RADVision
Software Products").
Licensee desires to incorporate one or more of RADVision's Software Products
into Licensee's products.
It is agreed by both RADVision and Licensee that the RADVision Software Products
may be sold and/or licensed only as Embedded Software incorporated into
Licensee's Network Products, Server Products and/or Client's Products
("Licensee's Products").
Based on the mutual promises and conditions contained in this Agreement,
RADVision and the Licensee agree as follows:
1. DEFINITIONS. The following capitalized terms shall have the following
meanings:
1.1. LICENSE/D SOFTWARE shall mean those computer programs and instructions
listed in Exhibit A, in Source Code and/or in Object Code form.
Licensed Software includes all enhancements, modifications, additions,
translations, compilations, or other software delivered to Licensee by
RADVision hereunder or under any support agreement entered into in
connection with this Agreement.
1.2. OBJECT CODE shall mean any compiled, assembled, or machine executable
version of the Licensed Software, or any part thereof.
1.3. SOURCE CODE means the human readable form of the Licensed Software.
1.4. EMBEDDED SOFTWARE shall mean that software which is the end result of
integrating the Licensed Software with any of Licensee's Network
Products, Server Products and/or Client's Products. in Object Code form
only.
1.5. DOCUMENTATION shall mean any documents, information, directions,
explanations, or material, concerning RADVision and/or the Licensed
Software, produced by or for Licensor for the use of License Software
customers in whatever form.
1.6. DERIVED DOCUMENTATION means any written material which contains any
change, modification, enhancement, addition, correction or translation
to or of the Documentation, or any derivative work based upon the
Documentation prepared by Licensee, or any Documentation created by
Licensee in whole or in part based upon the Documentation.
1.7. MODIFICATION shall mean any change, modification, enhancement,
addition, or correction to the License Software, or any translation of
the Licensed Software into other computer languages or other hardware
or software environments, or any derivative work based on the Licensed
Software or any software or documentation created by Licensee, in whole
or in part, based upon the Licensed Software and/or the Documentation.
1.8. PORTED SOFTWARE shall mean a translation of the Licensed Software to
other computer languages or other hardware or Software environments;
such Ported Software shall always be proprietary to RADVision.
1.9. UPDATES shall mean new versions of the Licensed Software made available
by Licensor to its existing customers of the Licensed Software that
contain bug fixes and/or enhancements or improvements, but do not
contain significant new features, according to Licensor's sole
discretion regarding new features.
1.10. BUG FIXES shall mean any correction(s) of error(s) contained in the
Licensed Software.
1.11. DISTRIBUTOR shall mean any third party with direct written
authorization from Licensee to market the Embedded Software pursuant
to, and in accordance with, the terms hereof.
1.12. END USER shall mean a specific individual or entity authorized directly
or indirectly by Licensee to use the Embedded Software, regardless of
whether the individual or entity is actively using the Embedded
Software.
1.13. CONFIDENTIAL INFORMATION shall mean information concerning inventions,
know-how, trade secrets and other proprietary RADVision information,
including RADVision's disclosure of the Source Code/Object Code,
Documentation and trade secrets relating to the Licensed Software and
any Updates or enhancements.
1.14. AUTHORIZED SUBCONTRACTORS shall mean subcontractors hired by Licensee
to work with the Embedded Software, provided that each such
subcontractor shall: (1) be listed on attached Exhibit F hereto, as
amended from time to time, (2) not be engaged in producing Competitive
Products, and (3) have signed an
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agreement for the benefit of Licensor containing the provisions of
Article 3 hereof.
1.15. LICENSEE'S PREMISES shall mean the place of business and development
work where the Licensee shall archive and make the Licensed Software
available for use, by or through a development team which is
responsible for a certain line of Licensee's Products built around the
Embedded Software. Licensee's Premises may be deemed to include the
off-site development team facilities of Authorized Subcontractors hired
to assist Licensee in the development of the Embedded Software provided
that any such Authorized Subcontractor is not a producer of Competitive
Products and that each Authorized Subcontractor working with the
Licensed Software has entered into a written agreement with Licensee
which requires that:
(a) the Authorized Subcontractor use License Software and or
Documentation exclusively for the benefit of Licensee;
(b) the Authorized Subcontractor shall incur the same obligations
with respect to the use of License Software and/or
Documentation as those incurred by Licensee under this
Agreement; and
(c) all copies of License Software and/or Documentation provided
to or made by the Authorized Subcontractor shall be returned
to Licensee or destroyed, including all copies stored in
computer memories or storage media, upon completion of its
work for Licensee.
1.16. CLIENT PRODUCTS shall mean end station applications according to the
specified in Exhibit B.
1.17. SERVER PRODUCTS shall mean servers that transfer stored multimedia
information to a user (such as but not limited to WWW servers and
voice/video mail systems).
1.18. NETWORK PRODUCTS shall mean all applications that connect between
different networks or sub-networks or applications that are not defined
as Client or Server Products.
1.19. COMPETITIVE PRODUCTS shall mean any product that supports substantially
similar functionality as the Licensed Software.
1.20. COMPETITOR shall mean any company which develops and markets H.323
Stack or Gatekeepers for developers or any company that is affiliated
with such a company (affiliation in this section shall mean more than
50% equity holding).
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1.20. NON-CONFORMANCE shall mean a material deviation in the performance of
the Licensed Software from the functional specification contained in
the documentation.
1.21. SPECIFICATIONS shall mean the specifications for the License Software,
which are contained in Exhibit A of this Agreement and in the
Documentation.
1.22. RELEASE DATE shall mean the date of the first sale of Licensee's
Product built around Embedded Software, or a press release announcing
the availability of the above product (the earlier between the two).
1.23. LICENSEE PRODUCTS shall mean products as specified in Exhibit B.
2. LICENSE GRANT. RADVision hereby grants to Licensee, and Licensee hereby
accepts from RADVision, subject to the terms of this agreement, a
non-exclusive, nontransferable worldwide license to:
(i) Use and copy the Licensed Software and the Documentation only
for the internal purpose of developing and creating
Modifications, Embedded Software and Derived Documentation,
only on Licensee's Premises.
(ii) Create copies of the Embedded Software and Derived
Documentation in object code to the extent necessary to fully
utilize the rights granted herein.
(iii) Distribute and sub-license the Embedded Software, software the
Licensed Software is in object code, world-wide directly or
indirectly through authorized Distributors, to End Users for
the purpose of and to effect the End User's utilization of
Licensee's Products.
(iv) Authorize Distributors to; (a) use, create and distribute
copies of the Embedded Software as part of Licensee's Products
and transfer directly to End Users, for the purpose of and to
effect the End User's utilization of Licensee's Products, and
(b) authorize End Risers to create limited copies of tile
Embedded Software for archival purposes.
Licensee will have the right to modify and copy the Source Code only to develop
its Embedded Software and only to the extent permitted in this Agreement.
Licensee will not have the right to market, sub-license, or otherwise distribute
the Licensed Software, whether with modifications or without modifications, or
the Embedded Software in a Source Code form.
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3. PROTECTION OF LICENSED SOFTWARE
3.1. SUBLICENSING TERMS. An End User may be authorized only to use
the Embedded Software pursuant to a written agreement between
Licensee or a Distributor, as the case may be, and the End
User. The terms and conditions of all such agreements shall be
at least as protective of the Embedded Software as; (i) the
terms and conditions Licensee uses for its other software
products, (ii) the terms and conditions governing the End
User's use of or marketing of the Licensee's Products and
(iii) the terms and conditions contained herein.
3.2. Licensee agrees to reproduce on all copies of the Licensed
Software and Embedded Software and the Documentation or
Derived Documentation, a RADVision copyright notice in a form
approved in advance by RADVision. The copyright notice shall
be the same or similar to the following:
"@ COPYRIGHT RADVISION LTD. 19XX"
Any RADCOM product incorporating part or all of the Embedded
Software shall include the standard copyright statement in the
"About Box" of the product.
3.3. TITLE. All claims to the contrary contained herein
notwithstanding, title in and to the Licensed Software and
Documentation, additions and Modifications to the Licensed
Software created by RADVision or Licensee, including but not
limited to, all copyright, patent, trade secret rights and
intellectual property rights shall remain in and with
RADVision, Ltd. and/or Licensor.
3.4. CONFIDENTIALITY. Licensee hereby acknowledges that the
Licensed Software contains valuable Confidential Information
of RADVision. Licensee agrees to hold all such Confidential
Information in confidence, and agrees not to disclose such
Confidential Information, except as expressly permitted in
Section 2 of this Agreement or to anyone other than Licensee's
employees who have a bona fide need to know, which employees
shall be governed by a similar confidentiality requirements of
equal or greater force. Additionally, Licensee agrees to use
at least that degree of care which it uses to protect its own
information of a similar proprietary nature, but in no event
less than reasonable protection expected in similar
circumstances.
Excluded from such Confidential Information is information
that Licensee proves that it had in its possession without
confidential limitation prior to disclosure and which such
information is known or becomes known to the general public
without breach of this Agreement or which is received
rightfully by Licensee and without confidentiality limitations
from a third party or which is disclosed publicly by RADVision
without substantially similar confidentiality restrictions.
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Licensee may not disclose any information contained in the
Source Code and/or the Source Code itself and/or anything
related to the Source Code to anyone other than Licensee's
employees or Authorized Subcontractors with a bona fide need
to know. Licensee agrees to protect the Source Code and any
confidential information related to the Source Code by
employing the same degree of care Licensee employs in
protecting its own source code (and no less than reasonable
care). This confidentiality obligation is to survive the
termination/expiration/cancellation of this Agreement for any
cause whatsoever and to remain in force in perpetuity.
3.5. UNAUTHORIZED DISCLOSURE. Licensee acknowledges that the
unauthorized disclosure of such confidential information could
cause irreparable harm and significant injury to RADVision
which may be difficult to ascertain. Accordingly, Licensee
shall indemnify RADVision against any damage arising due to
such unauthorized disclosure. Furthermore, Licensee agrees
that RADVision shall have the right to obtain an immediate
injuction, enjoining any such unauthorized disclosure.
3.6. COPIES. Licensee shall not copy, in whole or in part, the
Source Code or the Licensed Software and Documentation except
as explicitly permitted herein and for internal backup or
archival purposes.
3.7. COMPETITIVE PRODUCTS. Other than as part of the Embedded
Software, as permitted within the scope of the license granted
in Section 2 of this Agreement, Licensee is prohibited from,
and shall not, develop, market or sell any Competitive Product
based on or derived in any way from the Licensed Software or
from the benefits of know how resulting from access to or work
with Licensor's proprietary information and Source Code
(hereinafter "Proprietary Information"). The term "benefits of
know how" means information in non-tangible form which may be
retained by persons who have had access to the Proprietary
Information, including ideas, concepts, know how or techniques
contained therein.
4. WARRANTY
Licensor warrants that the Licensed Software complies with the Specifications.
RADVision does not warrant that the Licensed Software is free from errors and/or
will run properly on all computer hardware and/or operating systems, that the
Licensed Software will meet requirements of Licensee or operate in the
combinations which may be selected for use by Licensee or the End Users or that
the operation of the Licensed Software will be uninterrupted or error free.
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THE WARRANTIES ABOVE ARE EXCLUSIVE ADD IN LIEU OF ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
NO WARRANTY SHALL APPLY TO DEFECTS, FAILURES, DAMAGE, OR LOSS RESULTING FROM
CORRECTIONS, REPAIRS OR SERVICE NECESSITATED.
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BY:
(l) LICENSEE'S OR THE ULTIMATE USER'S SYSTEM, OTHER EQUIPMENT OR
ITS USE;
(II) ANY ACT OR OMISSION BY ANYONE OTHER THAN LICENSOR;
(III) POWER SHORTAGES. IRREGULARITIES, OR FAILURES:
(IV) MODIFICATION OF THE LICENSED SOFTWARE BY ANYONE OTHER THAN
LICENSOR;
(V) OR ANY OTHER CAUSE DETERMINED TO BE BEYOND
LICENSOR'S CONTROL.
4.2 ACCEPTANCE. Licensee will be deemed to have accepted the
Licensed Software upon the occurrence of any of the following:
(i) the end of a thirty day acceptance period commencing from
the date of receipt of the Licensed Software during which no
written notification of a Non-conformance was received by
RADVision; or (ii) Licensee's notification to RADVision of its
acceptance of the Licensed Software. Following the thirty day
acceptance period, if RADVision has not corrected a
Non-conformance within sixty days from the date of receipt of
such written notification, Licensee may elect to accept the
Licensed Software in its then-current condition, or return the
Licensed Software and all copies and derivatives and terminate
all licenses granted herein. Upon such returning of the
Software and derivatives, and termination of the licenses
granted herein, Licensor shall pay back to Licensee the, then
paid License Fee as specified in Exhibit C section 1.1.
4.3 SUPPORT. Any maintenance or support of the Licensed Software
by RADVision will only be pursuant to Section 7 hereunder or a
separately executed maintenance agreement.
5. INDEMNIFICATION
5.1 RADVision hereby agrees to indemnify, and defend Licensee
against claims on account of Licensee's use of the Licensed
Software, based upon an allegation that the Licensed Software
infringes or violates any third party's patent copyright,
trade secret, or other intellectual property rights(s)
provided that Licensee gives RADVision prompt written notice
of any claim. sole authority to defend or settle as it sees
fit. and reasonable cooperation (at RADVision's expense).
RADVision may, at its sole option and expense (i) procure for
Licensee the right to continue using Licensed Software, (ii)
modify it so that it is non-infringing, (iii) procure a
replacement product that has substantially the same
functionality, or, if none of the above options is reasonably
available, (iv) terminate this Agreement. RADVision will have
no liability under this section for any claim based upon (i)
Licensee's Modification to, or integration with, or use of the
Licensed
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Software with other software, or (ii) RADVision implementing
any change in compliance with and resulting from instruction
or direction of Licensee. In no event will RADVision's
liability under this sub-section exceed the total of the sums
received by RADVision from Licensee under this Agreement.
THIS SECTION 5.1 STATES RADV ENTIRE LIABILITY FOR ANY
INFRINGEMENT OR VIOLATION OF ANY THIRD PARTY'S INTELLECTUAL
PROPERTY RIGHTS.
5.2 In no event shall RADVision make any warranty or have any
liability regarding the Embedded Software or any Modification.
Except for the issues mentioned in sub-section 5.1 above,
Licensee shall indemnify and defend RADVision against any
claims that the Licensee's Products or Embedded Software
infringe any third party's issued patent or any copyright, or
violates any third party's trade secret or other intellectual
property right(s), provided that RADVision gives Licensee
prompt written notice of any claim, sole authority to defend
or settle as it sees fit, and reasonable cooperation at
Licensee's expense. Licensee shall not make any warranty on
RADVision's behalf.
6. DELIVERY AND PAYMENT. For the rights granted herein, Licensee agrees to
pay RADVision a License fee for the Licensed Software, as described in
Exhibit B attached hereto.
6.1. ROYALTY PAYMENTS. In addition to the one time license fee,
Licensee agrees to pay RADVsion a "royalty fee", according to
one of the "royalty fee" payment options listed in Exhibit C,
for each copy of the Licensed Software derivative which is
distributed outside the Licensee Premises, whether as an
Embedded Software, a Modification or in any other way. No
"royalty fee" will be due on copies of the Licensed Software
which are used within the Licensee Premises for development
purposes.
The Licensee agrees to keep true and accurate records and
books of account containing all data necessary for the
calculation of the "royalty fee" payable to RADVision. Such
records and books of account shall be open at all reasonable
times during business hours for inspection by an independent
authority, upon reasonable written notice having been given by
RADVision, not more often than once per annum however, in the
absence of cause for inquiry.
Following the signing of this Agreement by both parties, the
Licensee shall prepare a statement in respect of each calendar
quarter or part thereof, detailing the number of copies of the
Embedded Software sold/distributed and the number of ports
(concurrent calls) per Embedded Software, and the amount of
royalties due to RADVision. Such a statement shall be
submitted to RADVision within 30
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days of the end of such calendar quarter or part thereof to
which it relates, together with a remittance for the "royalty
fee" due to RADVision. If RADVision shall give written notice
to the Licensee within 30 days of the receipt of any such
statement that it does not accept the same such statement,
such statement shall be certified independently. The Licensee
shall make available all books and records required for the
purpose of such certification and the statement so certified
shall be final and binding between the parties. The costs of
such certification shall be the responsibility of the Licensee
if the Licensee's statement is certified to be inaccurate by
more than 5%, and the responsibility of RADVision if the
Licensee's statement is certified accurate, or inaccurate by
less than 5%. Following any such certification the parties
shall make any adjustments necessary in respect of the
"royalty fee" already paid to RADVision in relation to the
calendar quarter in question.
6.2. LATE PAYMENT CHARGES. RADVision reserves the right to levy an
interest charge for outstanding amounts not received in
accordance with payment terms in Exhibit C attached hereto.
This charge will take the form of interest at a monthly
compounded rate of 2.5% on all amounts outstanding for more
than 60 (sixty) days from the due date of payment. Interest
will be due on the 61st (sixty first) day for the preceding 60
(sixty) days and thereafter levied monthly until arrears plus
interest have been cleared. This charge applies to amounts
outstanding in respect of the Licensed Software and/or
"royalty fee" Payments.
7. MAINTENANCE.
7.1. SERVICES. RADVision or its agents shall provide Licensee with
site license maintenance services and support services of the
Licensed Software as outlined in EXHIBIT D. Support will only
be provided to the unmodified Licensed Software for a release
that is current within six months and through a single
Licensee-designated contact on the Licensee Premises.
RADVision may, after providing Licensee ten days advance
written notice, discontinue support services during any period
that Licensee remains in arrears of any of the fees owed to
RADVision hereunder.
7.2. TERM. The initial term of the maintenance services shall BEGIN
upon Licensee's receipt of the Licensed Software under this
Agreement, and shall continue until the third anniversary of
the Effective date. Thereafter, the maintenance services may
be renewed for additional one year term according to the
options below:
Licensor notifies the Licensee in writing 60 days prior to the
end of the then current maintenance term, and Licensee
replies, in not more than 10 days from receiving Licensor's
notice, of its wish in one of the following options: 1
-Licensee shall pay the annual maintenance fee as specified in
Exhibit C
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section 3, and maintenance services will be renewed for a one
year period, 2 -- Licensee shall pay the Yearly Down Payment
as specified in Exhibit C section 3 and maintenance services
will be renewed for a one year period. Or 3 -- Licensee shall
not pay the annual maintenance fee and the maintenance
services will not be renewed (this option will not affect the
obligation to pay Royalties). In case Licensor or Licensee
fails to perform the above option 3 will automatically be
selected.
7.3. FEES AND PAYMENT. The initial maintenance and support fees are
set forth in Section 3 of Exhibit C. RADVision will provide
Licensee with written notice at least thirty days prior to the
beginning of the second term of the fee for such term and at
least thirty days prior to the beginning of any subsequent
term of any price increase for that term. Support fees are due
within thirty days of RADVision's invoice date. RADVision will
invoice Licensee for the support services thirty days prior to
the beginning of the applicable support year.
8. NOTICES. When any notice is required or authorized hereunder, such
notice shall be given in writing by recognized overnight express
service or personal delivery addressed to the other party as specified
below, or such other address as may be requested in writing by the
party to be notified. A notice shall be deemed given ten (10) working
days after deposited in the mail:
LICENSOR LICENSEE:
RADVISION: RADCOM:
RADVision Ltd. RADCOM Ltd.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
cc: Attn: Legal Department
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9. TERM, TERMINATION AND SURVIVAL.
9.1. TERM. The term of this Agreement shall commence on the date
first written above and unless otherwise terminated or
canceled as provided herein will continue thereafter pursuant
to the terms hereof.
9.2. TERMINATION. If Licensee fails to pay any fees specified in
Section 6 within sixty (60) days of the due date, the licenses
granted herein to Licensee shall immediately terminate,
provided that RADVision has provided written notice to
Licensee, detailing such failures no less than 10 business
days prior to the termination. If at any time Licensee is in
breach of any material provisions hereof, and such breach
continues for at least sixty (60) days after written notice
thereof, it shall be considered a default and RADVision may
terminate all licenses granted.
9.3 Other Events of Termination. Notwithstanding 9.2 above,
RADVision or Licensee, as the case may be, shall be entitled
to notify the other party of immediate termination of this
Agreement in any of the following events:
(i) all of the assets of the LICENSEE is sold or
otherwise transferred to any Competitor of RADVision;
(ii) LICENSEE is merged or consolidated with any
Competitor of RADVision;
(iii) a receiver, trustee, or liquidator of the other party
is appointed for a significant portion of its
properties or assets;
(iv) the other party admits in writing its inability to
pay its debts as they mature;
(v) the other party makes a general assignment for the
benefit of creditors;
(vi) the other party is adjudicated as bankrupt or
insolvent;
(vii) a petition for the reorganization of one of the
parties or an arrangement with its creditors, or
readjustment of its debts, or its dissolution or
liquidation is filed under any law or statute, and
approved by court;
(viii) the LICENSEE becomes subject to the control of any
competitive firm or company;
(ix) Licensee notifies Licensor not later than December 20
that it desires to terminate the agreement;
9.4. FORCE ▇▇▇▇▇▇. Neither RADVision nor Licensee shall be liable
for any delays in the performance of any of its obligations
hereunder due to fire, strike, war, riots, acts, of any civil
or military authority, acts of God, judicial action
unavailability or shortages of materials or equipment,
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failures, or delays in delivery of vendors and suppliers or
delays in transportation and the like.
9.5. EFFECTS OF TERMINATION. Following any termination or
cancellation of this Agreement or the licenses granted herein:
(i) Subject to the provisions specified herein below,
immediately upon RADVision request, Licensee will either
destroy or send to RADVision (on Licensee's expense) all
copies of the Licensed Software and the Documentation; (ii)
Licensee may use the Embedded Software only to support its
then current licensees, but may not use or distribute any
version of the Embedded Software for any other purpose; (iii)
Licensee's rights to continue to distribute or market the
Embedded Software shall immediately cease, and the rights of
all distributors to continue to distribute or market the
Embedded Software shall also cease unless Licensor, at its
sole discretion, negotiates special provisions to Licensee's
distributor agreements regarding discontinuance of products;
and (iv) all of RADVision's obligations hereunder shall cease.
So long as Licensee has any copy of the Licensed Software or
Embedded Software, Licensee shall continue to be bound by the
terms hereof. Notwithstanding anything to the contrary, no
cancellation or termination of this Agreement or any of the
Licenses granted herein will have any effect on the rights of
an End User to continue to use any copy of the Embedded
Software previously licensed in accordance with the terms
hereof. Licensee covenants that it will promptly notify its
distributors of any termination or cancellation of this
Agreement and immediately disclose such notification to
Licensor.
9.6. SURVIVAL. Sections 3, 4.1, 5 6 and 11 shall survive the
expiration and termination of this Agreement for any reason.
Provisions of the sections which, by their nature, must remain
in effect beyond the termination of this Agreement shall also
survive. Payments which accrue or are due before termination
of this Agreement shall survive the expiration or termination
of this Agreement.
10. Joint Cooperation.
10.1 INTEROPERABILITY. Licensee acknowledges the strategic
importance of maintaining interoperability between Licensee's
products using the Embedded Software and RADVISION H.323
gateway products. Prior to releasing products using the
Embedded Software, Licensee agrees to test the
interoperability between the Embedded Software and RADVISION
H.323 gateway. Licensee will notify RADVISION of any
interoperability problems that Licensee cannot resolve. In
such event, RADVISION and Licensee will cooperate in resolving
the problem.
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10.2 PUBLICITY. The particular terms and conditions of this
Agreement are confidential and shall not be disclosed by
either party without the prior written consent of the other
party. No public announcements relating to this Agreement
shall be issued by either party without giving the other party
prior written notice and without joint agreement of the timing
of such announcements. Notwithstanding anything stated herein,
the parties agree to issue a joint press release announcing
the relationship initiated hereunder and to cooperate in other
joint promotional opportunities and announcements. Licensor
shall inform its software customers of Licensee Products in a
manner to be mutually agreed upon by the parties.
10.3 Cooperation. Licensor shall provide Licensee with requests
and/or other information regarding Licensee's planned Licensee
Product.
10.4 Licensor will discuss with Licensee the option of cooperation
regarding Licensee Products before supplying competing
products to its software customers. or together with its
software package.
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11 MISCELLANEOUS.
11.1 CHOICE OF LAW. This Agreement shall be governed by the
substantive laws of the State of Israel.
11.2 WAIVER. No delay, omission, or failure to exercise any right
or remedy provided herein shall be deemed to be a waiver
thereof or an acquiescence in the event giving rise to such
right or remedy, but every such right or remedy may be
exercised, from time to time as may be deemed expedient by the
party exercising such remedy or right.
11.3 TAXES. Licensee shall be solely responsible for any sales,
use, service, withholding tax or other tax levied or incurred
on account of the Agreement or the activities hereunder,
except for any tax based upon the net income of RADVision.
11.4 LIMITATION OF LIABILITY. Notwithstanding anything to the
contrary contained herein, in no event will RADVision's total
liability hereunder exceed the fees paid to RADVision by
License hereunder.
11.5 ARBITRATION. Except as stated below, any controversy or claim
arising out of or relating to this Agreement or the breach
hereof, except as stated below, shall be settled by
Arbitration in the State of Israel in accordance with the
Israeli Arbitration Law, and the Judgment upon any award
rendered by the arbitrator or arbitrators may be entered in
any court having jurisdiction thereof. The provisions of this
Agreement relating to RADVision's rights in and to the
Licensed Software shall not be arbitratable. The award of the
Arbitrator shall be final, non-appealable and binding upon the
parties hereto and their respective successors and permitted
assigns.
11.6 INVALIDITY. If any provision herein is ruled too broad in any
respect to permit the full enforcement thereof, or if any
provision herein is ruled in violation of Israeli law, then
such provision shall be limited only so far as it is necessary
to allow conformance to the law, and as so limited shall be
deemed a part hereof herein. If it is not possible for any
invalid provision to be so limited, such provision shall be
deleted from the Agreement, but the remaining provisions shall
remain in full force and effect.
11.7 DAMAGES. In no event will RADVision be liable to the Licensee
or any third party for any indirect, incidental, special or
consequential damages, whether in an action in contract, tort
or otherwise whether foreseeable or not, including without
limitation, damages for loss of business profits,
15
revenues, data, or business interruption, resulting from or
arising out of the use of or inability to delivery,
performance or use the Licensed Software, even if RADVision
has been advised of the possibility of such.
The provisions of this Agreement allocate the risks between
Licensor and Licensee. Licensor's pricing reflects this
allocation of risk and the limitations of liability specified
herein.
11.8 ASSIGNMENT. Neither this Agreement nor any of Licensee's
rights granted herein may be assigned or transferred by
Licensee, whether voluntarily or by operation of law, without
the prior written permission of RADVision and any attempt to
do so shall be without effect. Assignment shall be deemed to
include (i) all or substantial part of the assets of the
Licensee being sold or otherwise transferred to any person;
(ii) the Licensee being merged or consolidated with any other
person; and (iii) Licensee becoming subject to the control of
any competitive firm or company.
11.9 EXPORT. Licensee understands that the Licensed Software may be
a regulated commodity under the export control laws of the
United States and the regulations thereunder, as amended from
time to time, and may require a license to export such.
Licensee is solely responsible for any required export
license, and shall obtain any such required license(s).
11.10 RELATIONSHIP OF PARTIES. Nothing contained herein shall be
deemed to create an employer-employee relationship between
RADVision and Licensee, nor any agency, joint venture or
partnership relationship between the parties. Neither party
shall have the right to bind the other to any obligation, nor
have the right to incur any liability on behalf of the other.
11.11 INTEGRATION. This Agreement is the complete and exclusive
agreement between the parties with regard to the subject
matter hereof and supersedes the prior discussions,
negotiations and memoranda related hereto. Any Licensee
purchase order issued for the software, documentation, or
services provided hereunder shall be for the sole purposes of
administrative convenience and shall be subject to the terms
hereof.
11.12 LIMITATION OF SALES For a twenty four (24) months period from
the Effective Date, Licensor will not supply any product
competing directly as a stand alone product with Licensee
Product, except for to its own customers, or to new customers
as part of its software packages.
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11.13 NON-SOLICITATION. During the term hereof and for one year
thereafter, and unless otherwise approved in writing by the
other party, both parties shall not, directly or indirectly
hire or solicit any employee of the other party or anyone who
was an employee, consultant or independent contractor of the
other party at any time within the three-month period
immediately prior thereto or encourage any employee,
consultant, independent contractor or agent of the other party
to terminate such employment, or agency or other relationship.
11.14 EXHIBITS. Attached hereto and incorporated herein by this
reference are the following exhibits:
Exhibit A: Itemization of Licensed Software.
Exhibit B: Licensee's Products covered under this Agreement
Exhibit C: License, Royalties and Support Fees.
Exhibit D: Maintenance and Support obligations.
Exhibit E: Options for future SW purchases.
Exhibit F: Listed Subcontractors
11.15 FURTHER DOCUMENTS. The parties agree to execute any document
reasonably requested by the other to perfect the rights
granted herein.
11.16 COUNTERPARTS. This Agreement may be executed in multiple
original counterparts, each of which will be an original, but
all of which taken together shall constitute one and the same
document if bearing an authorized signature of RADVision and
Licensee.
11.17 TRAINING. Licensor will give Licensee a free training session
of 1.5 to 2 days in Israel.
In witness whereof, the parties have executed this Agreement as of the date
first above written.
RADVISION: LICENSEE:
Name: Name:
------------------ ----------------
(SIGNATURE) (SIGNATURE)
Name:___________________ Name:___________________
(PRINT) (PRINT)
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EXHIBIT A
ITEMIZATION OF LICENSED SOFTWARE
1. Licensed Software:
1.1 H.323 Protocol Stack, in a source code form for Windows 95/NT
(or other Windows versions that are usable with this source.
The source will support Windows 98):
H.323 Conference Manager: Layer of abstraction that hides details of
implementation of H.245 and H.225 from application. It also
provides inter-protocol procedures as described in the ITU-T
H.323 recommendation.
H.225 (Q.931, RAS and RTP/RTCP): Media Stream Packetization and
Synchronization for Visual Telephone Systems on Non Guaranteed
Quality of Service LANs
H.245: Control of communications between Visual Telephone Systems and
Terminal Equipment.
1.2 Call Repeater and Registration Maker in source code
2. Delivery:
The Licensed Software will be delivered to Licensee within five (5) business
days from the receipt by RADVision of a signed copy of this Agreement.
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EXHIBIT B
LICENSEE'S PRODUCTS COVERED UNDER THIS AGREEMENT
TESTING TOOLS FOR H.323 APPLICATIONS BUILT AROUND LICENSED SOFTWARE AND BASED ON
WIN 95/NT OPERATING SYSTEM (or other Windows versions that are usable with the
source referred to in Exhibit A. The source will support Windows 98)
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EXHIBIT C
LICENSE, ROYALTIES AND SUPPORT FEES
1. LICENSE FEE AND ROYALTY FEES:
1.1 The License Fee for the Licensed Software as specified in
Exhibit A is fifty thousand USD ($50,000)
1.2 ROYALTY FEES:
ROYALTIES WILL BE PAID ACCORDING TO THE FOLLOWING SCHEDULE:
* Up to $260k of total Royalty payments - seven hundred USD
($700) per Licensee Product or 7% of Licensee formal US list
price of Licensee Product (the lower between the two).
* Between $260k and $500k of total Royalty payment - three
hundred USD ($300) per - Licensee Product or 2.94% of Licensee
formal US list price of Licensee Product (the lower beween the
two)
* Between $500,001k and $1mk of total Royalty payment - one
hundred and fifty USD ($150) per Licensee Product or 1.47% of
Licensee formal US list price of Licensee Product (the lower
between the two)
* Above $1mk of total Royalty payments - seventy five USD ($75)
per Licensee Product or 0.7% of Licensee formal US list price
of Licensee Product (the lower between the two)
Upon Release Date or by December 20 1999 (the earlier of the two)
unless Licensee has terminated the Agreement by that date Licensee
shall pay Licensor an unrefundable down payment of fifty thousand
USD ($50,000) (the "Down Payment"). Future royalties (except for
the Second Down Payment defined below, and Yearly Down Payments)
calculated according to the above schedule, will be credited
against the Down Payment.
In addition to the Down Payment. Licensee shall pay Licensor
seventy thousand USD ($70,000) (the "Second Down Payment") on the
one year anniversary of the due date of the Down Payment. Future
royalties except for the Yearly Down Payment (accrued after the
Down Payment) calculated in accordance with the above schedule will
be credited against the Second Down Payment.
To the extent Licensor provides its distributors with demonstration
modules of Embedded Software, which units are not available for
sale, nor sold, by
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Licensee's distributors, no additional Royalty Fees will be
due for RADVision for these units.
3. MAINTENANCE AND SUPPORT FEES:
Licensee shall pay Licensor an annual support fee equal to Seventeen
thousand USD ($17,000) for the Licensed Software. The annual support fee
shall cover support services provided to a single point of contact
assigned to any Licensee development team responsible for Licensee
Products as specified in Exhibit B above, built around the Embedded
Software as specified herein:
The first annual Support Fee is due on the third anniversary of the
Effective Date and will cover a one year period starting on the third
Anniversary of the Effective Date. The annual support fee for any
subsequent yearly periods during the term of this Agreement shall be due
and payable within thirty (30) days after the anniversary of the
effective date as invoiced by RADVision in accordance with section 7.2 of
the Agreement.
Notwithstanding the above, starting from the first annual Support Fee,
Licensee shall have an option to pay an unrefundable down payment of
twenty seven thousand USD ($27,000) ("Yearly Down Payment") as a first
payment on account of the Royalty Fee for the following one year period .
This down payment will exempt Licensee from the payment of Maintenance
and Support Fee for the then current maintenance fee as specified in
section 7.2. This down payment will not be reimbursed even if the total
Royalty fee due for the following year will end up to be less than
$27,000. This down payment will not exempt Licensee from payment of
Royalties due over and above $27,000. The Yearly Down Payment of $27,000
may be updated from time to time by adding the same amount which added to
the maintenance fees as mentioned in Section 7.3.
4. PAYMENT TERMS:
4.1 - License fee - 50% upon signing this agreement and 50% sixty
(60) calendar days after receipt of the License.
4.2 - Royalty fee - as specified in Section 6.1 of this Agreement.
In addition, the minimum payments specified in section 1.2 of
this exhibit will be due and payable as follows:
1. The Down Payment will be due at the Release Date, or
on December 20th 1999 (the earlier of the two).
Unless Licensee has terminated the agreement by
December 19 by a written notification.
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2. Second Down Payment will be due and payable on the
one year anniversary of the due date of the Down
Payment.
5. Bank Remittance Information:
Bank Ha'Poalim ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (610)
Account No. 377906
NOTE: All prices quoted are in US dollars (HEREIN USD OR $) and exclude any
applicable taxes and freight costs. Licensee is responsible for all fund
transfer changes.
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EXHIBIT D
MAINTENANCE AND SUPPORT OBLIGATIONS
Maintenance services for the Licensed Software include:
* Back end maintenance releases including Bug Fixes and Updates (including
all Licensed Software as specified in Exhibit A). Licensor will provide
Licensee with reasonable updates and additions to the Call Repeater and
Registration Maker.
In case Licensor is notified of any bug, error, or malfunction in the
Licensed Software by Licensee, Licensor shall have such bug, error, or
malfunction fixed within reasonable period of time. Licensor will make
best efforts to give initial response regarding critical bug, error, or
malfunction within one (1) working day and have Licensor fixed such
critical bug, error, or malfunction within three (3) working days from
notification by Local Representative or Licensee. For any bug error or
malfunction with higher importance than degraded operation (i.e. regarding
nonessential functions) fixing will not exceed 30 days in any event..
In case Licensor is asked any question by Licensee, Licensor will make
best effort to respond to Licensee within three (3) working days on
questions with regular priority and within one (l) working day on
questions with high priority.
Reasonable telephone and email support during working hours.
Note: Licensee's services hereunder shall not extend to any Licensed Software or
components thereof which have been subject to misuse, accident or improper
installation or maintenance, or to any Licensed Software or component thereof
that has been modified, repaired or altered by Licensee or its end users or
customers, except as authorized by RADVision.
It is intended that RADVision and Licensee will work within the framework of
these guidelines. In the event that an exceptional circumstance arises, the
Parties will discuss the circumstances and mutually agree on the correct course
of action to take. Exceptions may include but are not limited to the
impossibility of Licensee to perform, the severity of the error, or the
availability of a more efficient approach.
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EXHIBIT E
Options for future SW purchases
1. LICENSE AND ROYALTY FEES FOR H.450.1, H.450.2, AND H.450.3:
Licensor grants the Licensee a two year option to purchase the H.450 module
(including H.450.1, H.450.2, and H.450.3) according to the provisions specified
in this agreement, including the other exhibits, and according to the following
schedule of payments:
o Initial License fee due at receipt of the software: ten thousand USD
($10.000)
o Prepayment of Royalty fee of seven thousand USD ($7,000) due when the
first anniversary of the receipt of the H.450 module falls
o Prepayment of Royalty fee of four thousand USD ($4,000) due when the
second anniversary of the receipt of the H.450 module falls
Maintenance fee to the above option:
Licensee shall pay Licensor an annual maintenance fee starting on the third
anniversary of the Effective Date for the following year for the H.450.1,
H.450.2, H.450.3 ("Maintenance Fee") equal to three thousand USD (53,000). The
Maintenance Fee shall cover support services provided to a single point of
contact to any Licensee development team responsible for Licensee's Products
built around the Embedded Software. The annual support fee for any subsequent
yearly periods during the term of this Agreement shall be due and payable within
thirty (30) days after the anniversary of the effective date as invoiced by
RADVision. Licensee shall have the option to add a yearly amount of three
thousand USD ($3,000) to the Yearly Down Payment and be exempt from this
Maintenance Fee, according to the same provisions as delineated in Exhibit C
section 3.
3. H.235 Licensor shall give Licensee the option to purchase the H.235 module at
a 30% discount, and in addition will spread the total payment of the License and
the first two year maintenance. The spread of the total payment above will be of
50% 30% and 20% to be due on the delivery date, the first and second
anniversaries thereafter respectively.
4. Licensor shall give Licensee a 30% discount on other H.323 Stack related
software packages, and not including RADVision's Gatekeeper.
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EXHIBIT F
Listed Subcontractors
[None]
25
