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EXHIBIT 10.17
AETHER TECHNOLOGIES - RIVERBED TECHNOLOGIES
STRATEGIC LICENSE AGREEMENT
This Strategic License Agreement (the "Agreement"), effective as of the 15th
day of June, 1999, is by and between Riverbed Technologies Inc., a Delaware
Corporation, having its principal offices at 0000 Xxxxx Xxxxxx Xx., Xxxxx 000,
Xxxxxx, XX 00000 (hereinafter, "Riverbed"), and Aether Technologies
International, LLC, a Maryland Limited Liability Company having offices at
00000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxxx, XX 00000 ("Aether").
RECITALS
WHEREAS, Aether has developed a product known as Aether Intelligent Messaging
("AIM") which is optimized for delivering transport information over cellular
wireless communication systems;
WHEREAS, Riverbed has developed an data synchronization product known as the
ScoutSync;
WHEREAS, Riverbed desires to integrate Aether's AIM for Mobitex Software with
their ScoutSync technology to provide extended wireless capability and better
serve their customers;
THEREFORE, for good and valuable consideration given pursuant to the terms,
conditions and covenants contained herein, Riverbed and Aether hereby agree as
follows:
Section 1: PURPOSE
1.1 Under this Agreement, Aether will license to Riverbed the Aether
Intelligent Messaging (AIM) optimized wireless transport system for the Xxxx
South Mobitex wireless network and Palm Platform and Windows CE-type mobile
devices for incorporation into a subsequent release of Riverbed's ScoutSync
synchronization product. AIM for ScoutSync will include a standalone proxy
server that converts AIM-formatted messages from the Xxxx South Data Network
and tunnels them to a ScoutSync server.
1.2 Riverbed will provide Aether the ScoutSync technology at a discount
consistent with that granted other Riverbed Preferred OEM agreements. Business
and pricing terms of this shall be finalized with 45 days of this agreement.
1.3 Following delivery of AIM for ScoutSync, Aether shall provide its
expertise for any subsequent integration or customization of AIM on a Time and
Materials (T&M) basis. Aether and Riverbed shall mutually define the
responsibility of each party during the integration and roll-out of the Scout
product.
1.4 Aether Technologies will provide Network Operation Center host-support for
the ScoutSync product in Aether's Network Operations Center. Riverbed shall
supply ScoutSync for inclusion in the Aether Network Center. Business and
pricing terms of this shall be finalized within 45 days of this agreement.
1.5 Riverbed and Aether will work jointly to position and promote the
AIM-enabled ScoutSync product. Marketing activities will begin within 60 days
of delivery of the AIM technology.
Section 2: MAINTENANCE AND SUPPORT
2.1 Following the Warranty Period specified in Section 6.1, Aether will
provide Network Operation Center host-support (maintenance) for the ScoutSync
product in Aether's Network Operations Center.
2.2 At all times during the Warranty Period and for as long as Riverbed is
receiving maintenance from Aether, Aether will provide to Riverbed any error
corrections, modifications, enhancements, improvements, new versions or other
updates (collectively, "Updates") to the AIM Software, at no additional charge,
no later than such Updates are made generally available to Aether's other AIM
licensees.
2.3 Annual maintenance and runtime fees for the AIM technology will be 15% of
the license fee specified in Section 9. Maintenance fees shall be payable
monthly, in advance of the month in which the maintenance services will be
provided.
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2.4 With respect to Riverbed's customers, Riverbed will provide level 1
support for the product and Aether will provide level 2 and 3 support for the
AIM product.
2.5 In addition, as requested by Riverbed, Aether will provide technical
assistance to Riverbed on issues concerning the integration of the AIM
optimized transport with the Scout products. This service will be provided on a
Time and Material (T&M) basis at $150 per hour. Any custom software developed
pursuant to this Section 2.5 will be owned solely by Riverbed.
Section 3: LICENSE GRANTED
3.1 Aether hereby grants, and Riverbed hereby accepts, a nontransferable, and
non-exclusive license to use the AIM Software and all related documentation
during the term of this Agreement under the price and terms specified in this
Agreement. Any rights not expressly granted herein shall be reserved for
Aether. Suitable computer programs will be provided for Riverbed's use in
machine-readable object code form. The AIM Software shall be used only in
conjunction with Riverbed's ScoutSync Software product, and shall be limited to
use in support of the ScoutSync Software. Riverbed may distribute the AIM
Software to its distributors and licensees solely as integrated into the
ScoutSync Software and as necessary for them to distribute and use the
ScoutSync Software, respectively. Riverbed shall not permit any other third
parties to use the AIM Software or allow access to the AIM Software from sites
outside of Riverbed's business premises except as specifically authorized in
writing by Aether.
3.2 Aether agrees not to deliver an implementation of the AIM technology to
Puma, Avantgo, or ASL for a period of four (4) months after execution of this
agreement. If Aether breaches the preceding, in addition to all other remedies
available to Riverbed, Riverbed may terminate this Agreement, return the AIM
Software and receive a full refund of all amounts paid under this Agreement.
3.3 Source code or other information pertaining to the logic design of the AIM
Software is specifically excluded from the license granted hereunder.
3.4 Riverbed will supply to Aether Technologies a Scout server for Aether
Technologies Network Operation Center for use by Aether solely in support of
the AIM Software licensed to Riverbed.
3.5 Riverbed will provide to Aether four (4) handheld computing devices for
pre-delivery testing of the AIM product. These devices shall be returned upon
delivery of AIM.
Section 4: SOFTWARE OWNERSHIP
4.1 Aether has, and shall retain, all rights and title to the AIM technology.
4.2 Riverbed has, and shall retain, all rights and title to the ScoutSync
technology.
4.3 Riverbed shall own all rights and title to any technology developed under
the terms this Agreement as specified in Section 2.5.
Section 5: ACCEPTANCE
5.1 Riverbed shall have thirty (30) days after delivery of the AIM Software in
which to accept the AIM Software. If Riverbed does not accept the AIM Software,
Riverbed may return the AIM Software, terminate this Agreement without penalty,
and shall be required to pay no fees or royalties to Aether.
Section 6: WARRANTIES
6.1 Aether warrants that, during the 60 days after acceptance of the AIM
Software (the "Warranty Period") the AIM Software will perform in accordance
with the specifications set forth in Exhibit A and its associated
documentation. Aether further warrants that the AIM Software will accurately
process date/time data (including but not limited to calculating, comparing and
sequencing) from, into, during and between the twentieth and twenty-first
centuries, and the years 1999 and 2000, and leap year calculations, provided
that all information technology products used in combination with the AIM
Software properly exchange date/time data with it.
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6.2 Aether warrants that the AIM Software does not infringe any copyright,
patent, trade secret or other intellectual property right. In the event a third
party brings a claim alleging a breach of the foregoing warranty, Aether will
defend, indemnify and hold harmless Riverbed, its officers, directors,
employees, agents, distributors and licensees from such claim. If the AIM
Software becomes, or is likely to become, subject to an injunction preventing
its use as contemplated by this Agreement, Aether will either (1) procure for
Riverbed the right to continue using the AIM Software, or (2) replace or modify
the AIM Software so that it becomes non-infringing.
Section 7: LIMITATIONS OF LIABILITY
7.1 EXCEPT AS STATED HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT AND/OR, CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM
EITHER PARTY'S PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS
AGREEMENT OR ANY OF THE ATTACHMENTS OR EXHIBITS HERETO, OR RESULTING FROM THE
FURNISHING, PERFORMANCE OR USE OR LOSS OF ANY LICENSED PRODUCTS OR OTHER
MATERIALS DELIVERED TO RIVERBED THEREUNDER, INCLUDING WITHOUT LIMITATION ANY
INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF
WARRANTY, EVEN IF THE PARTIES HERETO HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
Section 8: NON-DISCLOSURE
8.1 Trade secrets and proprietary information of either party (hereinafter
collectively referred to as "Information") shall mean information of or in the
possession of a party (the "Disclosing Party") that is disclosed to the other
party (the "Receiving Party") by the Disclosing Party in connection with this
Agreement which is identified to the Receiving Party as being proprietary to
the Disclosing Party. Examples of Information may include, but are not limited
to, customer lists, pricing policies, market analyses, business plans or
programs, software, specifications, manuals, print-outs, notes and annotations,
performance data, drawings, photographs, and engineering, manufacturing or
technical information related to either party's products and services, as well
as duplicates or copies thereof. Information shall not mean any information
previously known to the Receiving Party without obligation of confidence, or
which becomes publicly disclosed, which is rightfully received by Receiving
Party from a third party without obligation of confidence, or which is
independently developed by the Receiving Party without reference to the
Information of the Disclosing Party.
8.2 Information furnished to Receiving Party shall remain Disclosing Party's
proprietary property, shall be duplicated only as authorized in writing by
Disclosing Party, and shall be returned to Disclosing Party upon request or when
no longer required for the performance of this Agreement. Receiving Party shall
not disclose Information to any third party, and shall take all reasonable
precautions to prevent the disclosure of Information to third parties, including
any foreign national, firm, or country, and foreign nationals employed by or
associated with Receiving Party's company except as specifically authorized by
the Disclosing Party.
8.3 Data and information provided by Disclosing Party shall be considered
proprietary only when marked as proprietary.
8.4 Riverbed recognizes that the AIM Software and all related information,
including but not limited to any and all Updates and information related to
installation of the AIM Software at the offices of Riverbed, are proprietary,
and that all rights thereto, including copyright, are owned by Aether
Technologies. Riverbed further acknowledges being advised that the AIM
Software, including updates, improvements, modifications, enhancements, and
information related to installation, constitutes a TRADE SECRET of Aether, is
protected by civil and criminal law, and by the law of copyright, is valuable
and confidential to Aether, and that its use and disclosure must be carefully
and continuously controlled. Riverbed agrees that the specific prices and terms
of this Agreement shall not be disclosed by Riverbed without Aether's prior
written consent.
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8.5 Aether recognizes that the ScoutSync Software and all related information,
including but not limited to any and all Updates and information related to
installation of the ScoutSync Software at the offices of Aether, are
proprietary, and that all rights thereto, including copyright, are owned by
Riverbed. Aether further acknowledges being advised that the ScoutSync Software,
including updates, improvements, modifications, enhancements, and information
related to installation, constitutes a TRADE SECRET of Riverbed, is protected by
civil and criminal law, and by the law of copyright, is valuable and
confidential to Riverbed, and that its use and disclosure must be carefully and
continuously controlled.
8.6 The Disclosing Party shall at all times retain title to all of its
proprietary Software and all related information, including all Updates,
furnished to the Receiving Party hereunder.
8.7 The Receiving Party shall keep each and every item of the Disclosing
Party's proprietary Software and all related information, including any and all
Updates, free and clear of any and all claims, liens, and encumbrances
attributable to the use or possession of such Software by the Receiving Party.
Any act of the Receiving Party, whether voluntary or involuntary, purporting to
create a claim or encumbrance on any such item shall be void.
8.8 The Receiving Party agrees to notify the Disclosing Party forthwith if it
obtains information as to any unauthorized possession, use or disclosure of any
item of the Disclosing Party's proprietary Software by any person or entity, and
further agrees to cooperate with the Disclosing Party, at the Disclosing Party's
expense, in protecting the Disclosing Party's proprietary rights.
8.9 In addition to other remedies available to the Disclosing Party, the
Receiving Party agrees that the Disclosing Party shall be entitled to seek
injunctive relief in the event the Receiving Party breaches this Section 8.
Section 9: FEES AND PAYMENTS.
9.1 Riverbed shall pay to Aether a Software License Fee of $200,000 for use of
the AIM Software for use by up to 10,000 Scout users of the AIM Software. For
each additional 10,000 users of the AIM Software, an additional License fee
shall be the lesser of Aether's Premier OEM price or terms of this agreement.
Riverbed will pay Aether $100,000 upon delivery of the AIM Software pursuant to
Section 5, and $25,000 at the beginning of each subsequent quarter. Unless
otherwise provided herein, all other fees and obligations due to Aether shall be
due and payable in full within thirty (30) days of the receipt of an invoice
therefore by Riverbed.
Section 10: TERMINATION
10.1 This Agreement shall take effect upon execution of both parties, continue
for one year, and shall automatically renew thereafter for an additional one
year term, subject to payment of the annual license fee specified in section 9
Maintenance and Support, unless terminated by either party on one hundred and
eighty (180) days' prior written notice. Without limiting any of the foregoing,
in the event of termination of this Agreement as provided above, Riverbed shall
continue to be obligated for all payments due for Services performed relating to
this Agreement.
10.2 This Agreement may be terminated by either party in the event the other
party materially breaches a provision of this Agreement and the breaching party
fails to cure such breach within thirty (30) days of the receipt of notice of
such breach from the non-breaching party.
10.3 Notwithstanding anything to the contrary in this Agreement, the termination
of this Agreement, for any reason, shall not effect the right of Riverbed's
licensees to continue to use the AIM Software as incorporated in Riverbed's
ScoutSync Software.
Section 11: SOURCE CODE ESCROW
11.1 At Riverbed's expense, Aether agrees to deposit an accurate, current and
complete copy of the source code form of the AIM Software, as well as all other
materials necessary to maintain the source code, with a nationally recognized
escrow agent to be agreed by the parties within fifteen (15) days of the
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delivery of the AIM Software. The escrowed source code must be kept current as
Updates are made to the AIM Software as licensed to Riverbed. Aether shall be
responsible for maintaining the escrow account with the escrow agent for the
duration of the license granted under this Agreement.
11.2 In the event that Aether (i) materially breaches its obligations under
this Agreement leading to a for cause termination by Riverbed pursuant to
Section 10.2, (ii) materially breaches its technical support obligations under
this Agreement, (iii) ceases active conduct of its business or (iii) is
declared bankrupt or insolvent by a court of competent jurisdiction, has a
receiver appointed, is placed in involuntary bankruptcy or makes any general
assignment of assets for the benefit of creditors, Riverbed shall be entitled
to access the source code form of the AIM Software maintained in escrow
pursuant to Section 11.1, and Aether agrees to take all necessary actions to
facilitate such access.
Section 12: MISCELLANEOUS
12.1 If any provision of this Agreement is declared or found to be invalid,
illegal, unenforceable or void, then both parties shall be relieved of all
obligations arising under such provision, but only to the extent that such
provision is invalid, illegal, unenforceable or void, it being the intent and
agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it valid, legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is valid, legal and enforceable
and achieves the same objective. Each party agrees that it will perform its
obligations hereunder in accordance with all applicable laws, rules and
regulations now or hereafter in effect.
12.2 Headings are for reference purposes only.
12.3 Any notices required or permitted to be sent hereunder shall be served
personally or by registered or certified mail, return receipt requested,
reputable overnight delivery services such as Federal Express, Airborne Express
or DHL, or by facsimile with confirmation of receipt, to the addresses listed
above, and shall be deemed effective upon receipt.
12.4 This Agreement shall be interpreted and construed in accordance with the
Copyright laws of the United States and the internal law of State of Maryland,
without regard to the conflicts of law principles thereof. Each party hereby
consents to service of process by any means authorized by Maryland law (other
than by publication).
12.5 This Agreement may not be modified or altered except by a written
instrument executed by both parties. The failure of either party to exercise in
any respect any right provided for herein shall not be deemed a waiver of any
rights. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes and merges all prior
proposals, understandings and all other agreements, oral and written between
the parties relating to such subject matter.
12.6 Except for an assignment by Riverbed to a successor, which may be made
without Aether's consent,neither this Agreement nor any payments hereunder are
assignable or transferable without the other Party's written approval, which
approval will not be unreasonably withheld. Any purported assignment in
violation of the preceding sentence will be void and of no effect. This
Agreement will be binding on the parties' respective successors and permitted
assigns.
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IN WITNESS WHEREOF, the parties, by their duly authorized representatives,
hereto have executed this Agreement as of the day and year noted below.
RIVERBED TECHNOLOGIES INC. AETHER TECHNOLOGIES
Signature: /s/ XXXXX XXXXXXX Signature: /s/ XXXXX XXXX
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Xxxxx Xxxxxxx Xxxxx Xxxx
President and CEO President and CEO
Riverbed Technology Aether Technologies
Date: 7-19-1999 Date: 7/19/99
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