SOFTWARE LICENSE AGREEMENT
(Production Binaries)
THIS AGREEMENT is made between Integrated Systems, Inc. (hereinafter "ISI"),
whose principal office is at 000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx,
X.X.X. , and OSICOM (hereinafter "LICENSEE") whose principal office is at 000
Xxxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000.
1. DEFINITION OF TERMS
In this Agreement, "LICENSED SOFTWARE" shall mean all or any portion of the
computer program(s) indicated in Exhibit A, and all or any portion of the
documentation ("DOCUMENTATION") provided with and relating to LICENSED SOFTWARE.
2. GRANT OF LICENSE
2.1. ISI, at the request of LICENSEE, hereby grants to LICENSEE a
non-transferable, and nonexclusive license to copy, use and distribute
LICENSED SOFTWARE pursuant to the terms hereunder.
2.2. LICENSEE may make binary object code copies of LICENSED SOFTWARE only
from the master copy provided by ISI, provided that LICENSEE retains in
each such copy any copyright or other intellectual property rights
legends contained in the master copy of LICENSED SOFTWARE as delivered
to LICENSEE by ISI.
2.3. LICENSEE may use and incorporate copies of LICENSED SOFTWARE in its
products with substantially added value in hardware and/or software
("FINISHED PRODUCTS"), and sublicense and transfer, LICENSED SOFTWARE in
embedded form as, and only as, part of such FINISHED PRODUCTS to its
customers ("CUSTOMERS"), provided that:
(a) LICENSED SOFTWARE shall be bundled with other LICENSEE software
and configured solely to operate in and as part of such FINISHED
PRODUCTS;
(b) measured in number of machine (CPU) instructions, LICENSED
SOFTWARE shall not exceed fifty (50) percent of the combined,
functional software delivered with each FINISHED PRODUCT;
(c) LICENSEE shall not list or quote LICENSED SOFTWARE as a
separately priced item of option;
(d) CUSTOMERS' rights to LICENSED SOFTWARE shall be limited solely to
use on and as part of FINISHED PRODUCTS as described in Exhibit A
and any additional amendments to Exhibit A. The number of copies
of LICENSED SOFTWARE shall not exceed the number as granted in
Exhibit A and any additional amendments to Exhibit A. CUSTOMERS
shall have no right to copy LICENSED SOFTWARE, or
use, resell, transfer, or sublicense LICENSED SOFTWARE without
FINISHED PRODUCTS to any other party.
2.4. Except as provided above, all other means of sale, lease, license,
sublicense or transfer of LICENSED SOFTWARE by LICENSEE to other parties
is expressly prohibited.
2.5. LICENSEE shall not disassemble or otherwise "reverse engineer" LICENSED
SOFTWARE, nor shall LICENSEE grant to its CUSTOMERS the right to
disassemble or otherwise "reverse engineer" LICENSED SOFTWARE.
2.6, LICENSEE may not copy DOCUMENTATION or transfer DOCUMENTATION to
CUSTOMERS or other parties without prior written consent or ISI.
3. ORDERING AND PAYMENT PROCEDURES
3.1. This is a master software license agreement. LICENSEE shall order
LICENSED SOFTWARE by issuing Purchase Orders to ISI, referencing the
License Number shown on page one of this Agreement. Purchase Orders
subsequent to the first one shall also be accompanied by an executed
amendment to Exhibit A of this Agreement.
3.2. ISI reserves the right to accept subsequent purchase orders that comply
with then current ISI prices, terms and conditions.
3.3. Payment terms are Net Thirty (30) days from the date of invoice, subject
to LICENSEE maintaining credit arrangements satisfactory to ISI.
3.4. LICENSEE agrees to report usage of software copies to ISI upon request.
Such requests will not be more frequent than quarterly.
4. INDEMNIFICATION
4.1. ISI hereby represents and warrants that it owns the copyright and/or
other rights in and to all versions of LICENSED SOFTWARE and
DOCUMENTATION.
4.2. ISI will defend any action brought against LICENSEE based on a claim
that LICENSED SOFTWARE used within the scope of this license infringes
any copyright, trade secret or patent. ISI will pay any award against
LICENSEE, and any costs and attorneys' fees incurred by LICENSEE
resulting from any such claim, provided that LICENSEE has notified ISI
promptly in writing of such claim, and has permitted ISI to direct and
control the investigation, defense, and settlement of any such claim.
LICENSEE hereby agrees that ISI shall have no liability if such alleged
infringement arises from (a) the use of other than the current,
unaltered version of LICENSED SOFTWARE, and/or the combination of
LICENSED SOFTWARE with other programs or data, if such infringement
would have been avoided by the exclusive use of LICENSED SOFTWARE.
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5. WARRANTY
5.1. ISI MAKES NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ISI HAVE ANY
LIABILITY FOR ANY LOSSES OR DAMAGES, WHETHER INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL, ARISING FROM THE USE OF, OR INABILITY TO USE
OR TO ACHIEVE ANY PARTICULAR RESULTS FROM USE OF LICENSED SOFTWARE.
6. TERMINATION
6.1. If LICENSEE or ISI fails to fulfill any material obligations under this
Agreement, either may, at its election and in addition to other remedies
it may have, terminate all rights granted herein by not less than thirty
(30) days' written notice to the other specifying any such breach,
unless within the period of such notice all breaches specified therein
shall have been rectified.
6.2. Upon termination of this Agreement, LICENSEE shall cease all use,
sublicense and transfer of LICENSED SOFTWARE, and shall return promptly
all copies of LICENSED SOFTWARE in its possession to ISI. LICENSEE may
retain one copy of LICENSED SOFTWARE for continued support of LICENSEE
CUSTOMERS, provided that LICENSEE is current with all payments due ti
ISI.
6.3. Termination of this Agreement shall not affect any prior and existing
sublicenses granted by LICENSEE to CUSTOMERS, or terminate LICENSEE's
obligations under Section 7.1 here below.
7. MISCELLANEOUS
7.1. LICENSEE shall hold any information it receives from ISI relating to
LICENSED SOFTWARE and this Agreement in strict confidence. LICENSEE
shall not make any disclosure of such information or methods utilized
therein to anyone other than its employees or authorized contractors to
whom such disclosure is necessary for the purpose set forth in this
Agreement. LICENSEE shall notify each person to whom such disclosure is
made that such information may only be used for the purposes set forth
herein, and must be protected in the same manner as LICENSEE'S own
valuable, proprietary software. The foregoing shall not apply to any
information which is or comes into the public domain, or is obtained or
developed independently and without violation of this Agreement.
7.2. In the event LICENSEE becomes aware of any party whose use of LICENSED
SOFTWARE in connection with any of LICENSEE'S FINISHED PRODUCTS is in
violation of the provisions of this Agreement, LICENSEE shall report
such activities promptly to ISI, and assist ISI in any actions as may be
required to stop such violations.
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7.3. ISI's liability to LICENSEE under this Agreement shall be limited to the
amount actually paid by LICENSEE to ISI pursuant to this Agreement. The
existence of more than one claim or suit will not enlarge or extend this
limit.
7.4. LICENSEE agrees not to export or re-export LICENSED SOFTWARE in
violation of U.S. Commerce Department Export Administration regulations
or other applicable regulations.
7.5. This Agreement shall be construed and enforced according to the laws of
the State of California.
7.6. If any part, term, or provision of this Agreement shall be held illegal,
unenforceable, or in conflict with any law of a federal, state or local
government having jurisdiction over this Agreement, the validity of the
remaining portions or provisions shall not be affected hereby.
7.7. Neither this Agreement nor any rights granted herewithin shall be
assignable or otherwise transferable by LICENSEE without prior written
consent of ISI, which consent shall not be unreasonably withheld, except
LICENSEE, with notice to ISI, may assign its rights and delegate its
duties under this Agreement, or assign this Agreement to the surviving
Entity in a merger or consolidation, or to a purchaser of substantially
all the assets of the business to which this Agreement relates.
7.8. ISI reserves the right to use accredited auditing representatives
acceptable to LICENSEE to make examinations and audits, by prior
arrangement and during normal business hours, and not more frequently
than semi-annually, of all LICENSEE's records and accounts which may
contain information bearing upon LICENSEE's exercise of its rights and
the performance of its obligations hereof. Any information so revealed
to ISI shall be kept in confidence and used solely for the purposes of
verifying LICENSEE's compliance with this Agreement.
7.9. The SOFTWARE and its documentation are provided with Restricted Rights.
If this product is acquired under the terms of a: DOD contract: Use,
duplication, or disclosure by the Government is subject to restrictions
as set forth in subparagraph (c)(1)(ii) of 252.227-7013. Civilian agency
contract: Use, reproduction, or disclosure is subject to 52.227-19(a)
through (d). Unpublished rights reserved under the copyright laws of the
United States.
7.10. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof, and may not be modified except by
written amendments or agreements signed on behalf of LICENSEE and ISI by
their respective authorized representatives.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in duplicate originals by its duly authorized representatives on the respective
dates entered below.
For LICENSEE: For Integrated Systems, Inc.:
Sign________________________________ Sign_______________________________
Name________________________________ Name_______________________________
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Title_______________________________ Title______________________________
Date________________________________ Date_______________________________
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SOFTWARE LICENSE AGREEMENT
(Production Binaries)
EXHIBIT A
---------
LICENSEE: Osicom Technologies, Inc. License Number: 9703-1
----------------------------------- ------------------
LICENSE SOFTWARE and the number of copies thereof for which the rights to use
are granted under this Agreement shall be as follows:
ISI Products Processor Number of Copies
------------ --------- ----------------
pSOS+ (KS-tgt-B#) _________ _______________
pSOS+m (KS-tgt-B#) _________ _______________
pROBEE (KS-tgt-B#) _________ _______________
pNA+ (NS-tgt-B#) _________ _______________
pHILE+ (FS-tgt-B#) _________ _______________
pRPC+ (NR-tgt-B#) _________ _______________
pXII+ (XW-tgt-B#) _________ _______________
pREPC+ (LC-tgt-B#) _________ _______________
SNMP (SM-tgt-B#) _________ _______________
pSOS (PK-tgt-B#) _________ _______________
pROBE (PR-tgt-B#) _________ _______________
pHILE (PF-tgt-B#) _________ _______________
pVERIFY (PV-tgt-B#) _________ _______________
pRISM (PI-tgt-B#) _________ _______________
Esp (ESP-tgt-B#) _________ _______________
The right to use the above-stated number of copies in LICENSEE's FINISHED
PRODUCTS is restricted to use with Osicom's NET+ARM family of products. It is
intended that Osicom's customers will develop additional code that operates in
conjunction with Osicom's software and utilizes licensed software. The Osicom
customers will then be able to distribute the results to their customers without
any further licensing requirements with
ISI.
____________________________________________
For LICENSEE: For Integrated Systems, Inc.:
Sign_________________________________ Sign_______________________________
Name_________________________________ Name_______________________________
Title________________________________ Title______________________________
Date_________________________________ Date_______________________________
LICENSEE INFORMATION:
Technical Contact: Xxxx Xxxxxxx Telephone: (000) 000-0000
----------------------------- ------------------
Address: 000 Xxxxxxx Xxxx, Xxxxxxx, XX 00000
---------------------------------------------------------------------
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AMENDMENT TO PRODUCTION LICENSE
PRODUCTION LICENSE FEE SCHEDULE
Per Copy Production Price Buy Down for pSOS+ and pNA+
One Time Fee $100,000
Discount Schedule Price per Unit for pSOS+ and pNA+
20,000 - 2,000,000 Units $.50/unit
2,000,000+ Units $.40/unit
Notes:
All information in this Amendment is confidential between ISI and Osicom/DPI
1. Pricing per unit applies to pSOS+ and pNA+ for Net+ARM processors.
2. Production buy Down Fee must be ordered with pRISM+ Development licenses.
$25,000 invoiced at receipt of order. Remaining $75,000 will be invoiced
as follows:
$25,000 End of January, 1998
$25,000 End of April, 1998
$25,000 End of July, 1998
Non-payment of any Buy Down Fee will cancel negotiated unit price. Standard Unit
price, as indicated in current ISI price list, will prevail for any production
licenses purchased after non-payment.
3. Minimum purchase quantity is 20,000 units.
4. Production units must be purchased prior to initial product shipment
(includes "Alpha" and "Beta" shipments).
5. Osicom/DPI will report Net+ARM shipments that deploy pSOS+ and pNA+
after fiscal quarter end, i.e.: Feb. 1; April 1, July 1 and Oct 1.
6. Per Copy Pricing is cumulative.
7. Under no circumstances will Osicom/DPI ship copies of pSOS+ or its
components prior to generating a purchase order for them.
8. A signed "Software License Agreement for Production Binaries",
"Amendment to Software License Agreement", and "Exhibit A" will
accompany initial purchase order for production binaries, a signed
"Exhibit A" will accompany ensuing purchase orders.
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SUPPLEMENTAL LICENSE AGREEMENT
(SOURCE CODE)
THIS AGREEMENT is made between Integrated Systems, Inc., (hereinafter "ISI"),
whose principal office is at 000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx,
00000 U.S.A., and Osicom/DPI (hereinafter "LICENSEE") whose principal office is
at 000 Xxxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000.
In consideration of the mutual promises, considerations and covenants contained
herein, LICENSEE and ISI hereto agree as follows:
9. MAIN AGREEMENT
1.1. This agreement is supplemental to, and modifies as of the
effective date hereof, a software license agreement
(hereinafter "Main Agreement"), license number 9703-1, dated 14
November 1997, between the parties hereto and relating to the
computer programs(s) (hereinafter 'LICENSED SOFTWARE") known
as:
pNA+ TCP/IP Source Code
for ARM processors
2. DEFINITION OF TERMS
2.1. Terms in this agreement which are in capital letters, with the
exception of names of parties and paragraph headings shall have the
meanings specified in the Main Agreement.
2.2. "SOURCE CODE" shall, for the purposes of this Agreement, mean all or a
portion of the source code, that is the programming language
formulation and embedded program commentaries, for LICENSED SOFTWARE,
including any documentation relating to LICENSED SOFTWARE and/or SOURCE
CODE bearing any confidentiality marks or legends.
3. GRANT OF LICENSE
3.1. ISI, at the request of LICENSEE, hereby grants to LICENSEE a personal,
non-transferable, and nonexclusive license to use SOURCE CODE pursuant
to the terms hereunder.
3.2. LICENSEE may make no more than one copy of SOURCE CODE for backup purposes
only.
3.3. LICENSEE may not remove any copyright or other intellectual property,
marks or legends contained in the copy of the SOURCE CODE delivered to
LICENSEE by ISI. LICENSEE shall replicate in and on all copies of
SOURCE CODE, whether modified, extended or abstracted, any copyright or
other intellectual property rights marks or legends which are contained
in or appear on the original copy of SOURCE CODE delivered to LICENSEE
by ISI.
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3.4. LICENSEE shall at all times keep all its copies of SOURCE CODE at
LICENSEE'S Corporate site location specifically designated hereunder:
000 Xxxxxxx Xxxx Xxxx, Xxxxxxx, XX 00000
Any use or storage of copies of SOURCE CODE at any other location is
expressly prohibited, unless prior written permission has been granted
by ISI. LICENSEE hereby assures ISI that it shall, to the best of its
ability and by whatever reasonable means necessary, prevent removal of
SOURCE CODE from the above location.
3.5. LICENSEE may use SOURCE CODE for internal reference, maintenance and
support purposes only. LICENSEE shall not modify SOURCE CODE without
prior written consent of ISI, which consent shall not be unreasonably
withheld.
3.6. LICENSEE agrees that it shall not sell, license, sub-license, lease,
transfer or otherwise make available SOURCE CODE to any other party,
whether or not SOURCE CODE has been modified, extended or abstracted,
in any form or on any medium, printed, magnetic, photographic or
otherwise.
3.7. LICENSEE agrees that any object, that is directly machine executable,
code derived or produced from SOURCE CODE (hereinafter "Derivative
Works"), whether or not SOURCE CODE has been modified, extended or
abstracted, shall be construed as the same as LICENSED SOFTWARE, which
use by LICENSEE shall be governed by and subject to the terms and
conditions set forth in the Main Agreement.
4. PAYMENT AND DELIVERY
4.1. For rights granted under this Agreement, LICENSEE shall pay ISI a
license fee pursuant to a Purchase Order acceptable to ISI.
4.2. Within a reasonable time after execution of this Agreement and receipt
of a Purchase Order acceptable to ISI, ISI shall deliver to LICENSEE
one complete copy of SOURCE CODE on the storage medium specified to the
Purchase Order.
5. WARRANTY
5.1. ISI warrants only that the media on which SOURCE CODE is delivered
shall be free from defects in material or workmanship under normal use
and service for a period of thirty (30) days from the date of delivery.
If defect(s) in the media is discovered and reported by LICENSEE to ISI
within the thirty days after delivery, ISI shall, at no cost to
LICENSEE, deliver to LICENSEE a new copy of SOURCE CODE.
5.2. In no event shall ISI have any liability for any losses or damages,
whether direct, indirect, special or consequential, arising from the
use of, or the inability to use or to achieve any particular results
from use of SOURCE CODE.
5.3. ISI will defend any action brought against LICENSEE based on a claim
that SOURCE CODE used within the scope of this license infringes any
copyright, patent, or trademark. ISI will pay any award against
LICENSEE and any costs and attorneys' fees incurred by LICENSEE
resulting from any such claim, provided that LICENSEE has notified ISI
promptly in writing of such claim, and has
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permitted ISI to direct and control the investigation, defense, and
settlement of any such claim. LICENSEE hereby agrees that ISI shall
have no liability if such alleged infringement arises from (a) the use
of other than the current, unaltered version of SOURCE CODE, and/or (b)
the combination of SOURCE CODE with other programs or data. If such
infringement would have been avoided by the exclusive use of SOURCE
CODE.
6. MAINTENANCE
6.1. ISI may, from time to time, make modifications, improvements or
extensions to SOURCE CODE. ISI agrees to notify LICENSEE of any such
relevant modifications, improvements or extensions, and LICENSEE may
request and obtain a copy of the new SOURCE CODE in the form of
hardcopy listing or on the medium specified in Paragraph 4.2 hereof by
maintaining current a Source Code Maintenance Agreement.
7. CONFIDENTIALITY
7.1. LICENSEE agrees that it shall hold SOURCE CODE in strict confidence for
ISI, and shall not make any disclosure of SOURCE CODE, including
methods or concepts utilized therein, to anyone other than employees of
LICENSEE to whom such disclosure is necessary to the use for which
rights are granted herein. LICENSEE shall appropriately notify each
employee to whom such disclosure is made that such disclosure shall be
kept in confidence by him/her. Notwithstanding the foregoing, such
confidentiality obligations shall not apply to any specific information
contained in SOURCE CODE which is or subsequently comes into the public
domain.
8. TERMINATION
8.1. If LICENSEE fails to fulfill one or more of its obligations under this
Agreement, ISI may, at its election and in addition to other remedies
it may have, at any time terminate all rights granted by it to LICENSEE
herein by not less than thirty (30) days written notice to LICENSEE
specifying any such breach, un less within the period of such notice
all breaches specified therein shall have been rectified.
8.2. Upon termination, LICENSEE shall deliver to ISI within thirty (30) days
all full or partial copies of SOURCE CODE in its possession or under
its control.
8.3. The obligations of LICENSEE and its employees to maintain
confidentiality of SOURCE CODE under Paragraph 7 hereof shall survive
and continue after termination of rights under this Agreement.
8.4. Termination of this Agreement shall not affect any rights granted by
ISI to LICENSEE under the Main Agreement, including any rights with
respect to Derivative Works, insofar as Derivative Works are construed
as equivalent to LICENSED SOFTWARE under the Main Agreement.
9. MISCELLANEOUS
9.1. Neither this Agreement nor any rights granted herein shall be
assignable or otherwise transferable by LICENSEE without prior written
consent of ISI.
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9.2. ISI's total liability to LICENSEE under any provision of this
Agreement, exclusive of Paragraph 5.3 hereof, shall be limited to the
amount actually paid by LICENSEE to ISI pursuant to this Agreement. The
existence of more than one claim or suit will not enlarge or extend
this limit. LICENSEE hereby releases ISI from all obligations,
liability, claim, or demand in excess of this limit.
9.3. This Agreement shall be construed and enforced according to the laws of
the State of California. If LICENSEE is located outside the United
States of America, the parties hereto agree that any dispute arising in
connection with this Agreement will be settled by the ICC Court of
Arbitration.
9.4. If any part, term, or provision of this Agreement shall be held
illegal, unenforceable, or in conflict with any law of a federal, state
or local government having jurisdiction over this agreement, the
validity of the remaining portions or provisions shall not be affected
thereby.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in duplicate originals by its duly authorized representatives, effective as of
the last date entered below.
FOR INTEGRATED SYSTEMS, INC.
By:____________________________
Name:__________________________
Title:_________________________
Date:__________________________
FOR LICENSEE,
By:____________________________
Name:__________________________
Title:_________________________
Date:__________________________
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