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EXHIBIT 10.23
"CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS AND
ENCLOSED BY BRACKETS. THE CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION."
[SMITHMICRO SOFTWARE LOGO]
SOFTWARE LICENSING AND DISTRIBUTION AGREEMENT
THIS AGREEMENT, including Appendixes A and B attached hereto (hereinafter,
the "Agreement"), is entered into and effective as of December 1, 1998 by and
between XXXXX MICRO SOFTWARE, INC., a corporation organized and existing under
the laws of the State of Delaware, (hereinafter referred to as "SMSI"), and 3Com
Corporation, the party specified as "OEM" on Appendix A, hereto (hereinafter
referred to as "OEM").
1. Rights and Licenses Granted to OEM, Services, Term.
1.1 SMSI publishes the software programs listed in Appendix A and
documentation and instruction manuals related to the software programs
(collectively referred to as the "Licensed Products"). Subject to the terms and
conditions of this agreement, SMSI hereby grants OEM a limited, non-exclusive,
non-transferable right to copy, have copied,, market, and distribute the
Licensed Products to distributors, re-sellers, OEM customers of OEM and
end-users, solely when distributed concurrently with the sale of the products
listed in Appendix A (hereinafter referred to as the "Hardware") of OEM, its
parents, subsidiaries and affiliates, and not as separate, unbundled products
except as needed to replace a customer's defective media, or to remedy an error
in the Licensed Products that can be resolved by providing customer with an
upgrade.
1.2 The term of this Agreement shall be as specified in Appendix A,
hereto and shall extend automatically for additional terms of the same length
unless either party gives the other party written notice of cancellation at
least sixty (60) days prior to the end of the then current term. After the first
three months of the initial term of this Agreement, either party may terminate
this agreement at any time for convenience by providing 90 days written notice.
2. OEM's Obligations.
2.1 OEM, including its parents, subsidiaries and affiliates, shall
include from time to time, the promotional literature furnished by SMSI with
respect to other products of SMSI including products which provide enhancement
upgrades to the Licensed Products. Such promotional material shall be subject to
approval by OEM, which approval shall not be unreasonably withheld.
2.2 OEM may, in its discretion, promote the fact that the Licensed
Products are included with Hardware shipped by OEM including references to SMSI
and the Licensed Products on product packaging, advertising and promotional
literature where reasonable.
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2.3 OEM shall supply SMSI, at no charge to SMSI, within 15 days of
execution of this Agreement, a sample of each type of Hardware products which it
proposes to ship with the Licensed Products for SMSI's testing and quality
control purposes. In the event OEM releases new products or significantly
changes the design of any Hardware product with which it ships the Licensed
Products, OEM shall supply a sample of such Hardware product, as changed, to
SMSI at no charge. Should such design changes require significant software
modifications to provide the previously existing functionality, SMSI reserves
the right to charge for the reasonable costs of such changes.
2.4 OEM shall establish a registration procedure by which end users of
its products may register ownership. OEM shall provide this registration
information to SMSI quarterly in ASCII machine readable format. Users will have
the option to not be included in this list.
3. SMSI's Obligations.
3.1 SMSI shall use commercially reasonable efforts to assure that the
Licensed Products are compatible with the Hardware.
3.2. Improvements. Reasonable improvements in the Licensed Products
(which shall mean any minor additions or modifications made by SMSI to or in the
Licensed Products at any time) which improve the efficiency and effectiveness of
the Licensed Products and which do not change its function(s) shall be furnished
from time to time to OEM at no charge.
3.3 Program Changes. If at any time SMSI shall develop any changes in
the Licensed Products which change the basic program function(s) of the Licensed
Products or add one or more new ones, the sublicensees of OEM shall have the
right to obtain such program changes at the standard rate SMSI charges other
licensees of the Licensed Products. The determination of whether a change is an
improvement or program change shall be in the sole discretion of SMSI.
4. Technical Support. The party specified in Appendix A, hereto shall provide
end users who receive copies of the Licensed Products from OEM telephonic advice
by knowledgeable personnel on installation, operation and trouble-shooting
questions with respect to the Licensed Products ("Technical Support"). Such
party shall not refer such callers to the other party. If OEM is designated to
provide customer support in Appendix A, OEM shall provide to SMSI the telephone
numbers for OEM's Technical Support personnel for the Licensed Products which
SMSI may provide to callers who have acquired the Licensed Products through OEM.
SMSI shall provide tier 2 support in the operation of the Licensed Products to
the customer service staffs of OEM, its subsidiaries and affiliates to assist
the customer service staffs in providing Technical Support for the Licensed
Products but unless otherwise provided in Appendix A, hereto, SMSI shall not
otherwise be obligated to provide Technical Support.
5. Delivery. Except as explained in Appendix A, SMSI has delivered Copy
Masters of the Licensed Products and the appropriate End User License Agreement
to OEM.
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6. Payment Schedule, Fees and Charges.
6.1 Price. OEM shall pay the prices specified in Appendix A hereto.
Within forty-five (45) days after the end of each calender month OEM shall pay
SMSI for each copy shipped during the month. OEM shall accompany each monthly
payment with a report containing all information reasonably necessary to verify
accuracy of the payment for that month. OEM shall pay a late charge of 1.0% for
each month or partial month that payment is late, or, if lower, the maximum rate
permitted by law.
6.2 Taxes and Duties. The prices stated are exclusive of sales or use
taxes, ad valorem taxes, duties, licenses, or levies imposed on the production,
storage, sale, transportation or use of the Licensed Products. OEM shall pay all
such charges, excepting taxes based on the income of SMSI, either as levied by
taxing authorities, or in lieu thereof, OEM shall provide an exemption
certificate acceptable to the relevant taxing authorities.
7. Copies of Licensed Products.
7.1 Right to Copy.OEM shall have the right to copy, duplicate or
otherwise reproduce, or have copied, duplicated or otherwise reproduced, the
Licensed Products for inclusion with OEM's Hardware.
7.2 Right to Audit. OEM shall keep records concerning the shipment of,
and all transactions relating to, the sale of the Licensed Products. Such
records shall set forth the number of copies of the Licensed Products sold or
transferred by OEM. OEM shall allow an independent certified public accountant
appointed by SMSI, subject to reasonable approval of OEM, upon ten (10) days
written notice, to inspect, audit and analyze all of OEM's records as described
in this section, and all of OEM's other books, accounts and shipping records
relating to the items licensed hereunder, during normal business hours at OEM's
regular place of business. SMSI shall bear the costs of such inspection and
audit, unless the audit discloses that additional amounts equal to or greater
than 5% during the period being examined are due SMSI, in which case OEM shall
pay such additional amounts and reasonable costs of such inspection and audit.
SMSI agrees to sign, and have the auditor sign, any reasonable and appropriate
confidentiality agreement with respect to such inspection and audit which is
submitted by OEM during the term of this Agreement.
8. Limited Warranties.
8.1 SMSI's Warranties. SMSI warrants that during the Warranty Period (as
defined below), the Licensed Products furnished hereunder shall be free from
material programming errors and from material defects in workmanship and
materials. OEM acknowledges that inevitably some errors may exist in the
Licensed Software, and the presence of such errors, if not material errors,
shall not be a breach of this provision This warranty shall be of no effect
should OEM cause the Licensed Products to be modified or used other than as
licensed hereunder or as provided in the documentation without the written
consent of SMSI.
8.2 SMSI's Fulfillment of Warranty Obligations. If at any time during
the 90-day period immediately following the date of delivery of the Licensed
Products (the "Warranty Period") SMSI or OEM shall discover one or more material
defects or errors in the Licensed Products or any other respect in which the
Licensed Products fails to conform to the provisions of any warranty contained
in this Agreement, SMSI shall, entirely at its own expense, promptly correct
such defect, error or nonconformity by, among other things supplying OEM with
corrected versions of the Licensed Products.
8.3 No Warranty Pass-Through. OEM shall not pass through to its
customers, end users or any other third party the warranties made by SMSI under
this Agreement. OEM shall make no representations to its
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customers, end users or any other third party on behalf of SMSI. No warranty,
representation or agreement herein shall be deemed to be made for the benefit of
any customer, end user, or licensee of OEM or any other third party.
8.5 LIMITATION OF LIABILITY. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SMSI MAKES
NO AND SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS GUARANTEES AND WARRANTIES TO
ANY PERSON OR ENTITY REGARDING THE USE OR THE RESULTS OF THE USE OF THE LICENSED
PRODUCTS.
9. Indemnification
9.1 SMSI agrees to indemnify, defend, and hold OEM harmless from and
against any and all actions, suits, claims, liabilities, damages, losses and
expenses (including the reasonable fees of attorneys and other professionals and
related costs and expenses) arising directly or indirectly out of or in
connection with any claim that the Licensed Products violates any patent,
trademark, copyright and any other intellectual or industrial property right of
third parties, finally awarded in any such claim, suit or proceeding. SMSI shall
have no liability for infringement based on (a) use of other than the current
release of the Licensed Products, (b) modification of the Licensed Products
without SMSI's written consent, (c) the combination or use of the Licensed
Products with any other software, equipment, product, device, item or process
not furnished by SMSI or not contemplated under this Agreement, if such
infringement would have been avoided by the use of the Licensed Products as
contemplated herein or alone and in their current unmodified form. (d) OEM's
continued infringing activities after being notified thereof or after being
informed of modifications that would have avoided the infringement or (e) OEM's
use of the licensed product which is incidental to an infringement not resulting
primarily from the licensed product. OEM will indemnify SMSI from all damages
and liabilities related to a claim excluded from SMSI's indemnity obligation by
the previous sentence.
9.2 OEM agrees to indemnify, defend, and hold SMSI harmless from and
against any and all actions, suits, claims, liabilities, damages, losses and
expenses (including the reasonable fees of attorneys and other professionals and
related costs and expenses) arising directly or indirectly out of or in
connection with any claim related to the Hardware, the breach by OEM of any
warranty or obligation under this Agreement, or any claim that (1) the
distribution of the Hardware violates any local, state, or federal law, rule or
regulation or violates any patent, trademark, copyright and any other
intellectual or industrial property right of third parties, or (2) of property
damage or personal injury or death arising from use of the Hardware, and to pay
any liabilities, damages, costs and expenses finally awarded in any such claim,
suit or proceeding.
9.3 The indemnifying party shall be relieved of the foregoing obligation
unless (i) the other party promptly notifies the indemnifying party of any such
claim, (ii) the indemnifying party shall have sole control of the defense and
all related settlement negotiations, and (iii) the other party provides the
indemnifying party with the assistance, information and authority necessary to
perform the above. However, if the other party desires to have separate legal
representation in any such action, it shall be responsible for the costs and
fees related to its separate counsel. In the event a product provided by the
indemnifying party is finally held or believed by the indemnifying party to
infringe a third party's rights, the indemnifying party, at its option, shall
use reasonable efforts to obtain a license under the rights that have been
infringed, or to modify the infringing product so it is non-infringing or to
provide to the other party substitute products that are non-infringing; provided
that if in the indemnifying party's judgment such options are not commercially
reasonable, the indemnifying party may terminate the licenses granted to the
other party hereunder upon written notice to the other party.
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10. Proprietary Rights, Confidentiality.
10.1 RapidComm Trademark. OEM has marketed the Licensed Products - or
their predecessor products - under the trademark RapidComm. SMSI acknowledges
that all right, title and interest in and to the RapidComm xxxx resides in OEM,
and hereby agrees that OEM may continue to market the Licensed Products under
the RapidComm xxxx during the term of this Agreement.
10.2 Ownership. Except as set forth in Section 10.1 above, OEM agrees
that the Licensed Products provided hereunder, and any copies thereof, in whole
or in part, and all intellectual property rights, including without limitation,
patent, copyright, trademark, trade secret, and any other intellectual or
industrial property rights, are and shall remain the sole property of SMSI, and
that all rights thereto are reserved by SMSI. OEM agrees that it will not create
derivatives of such Licensed Products, nor use, copy, disclose, sell, assign,
sublicense, or otherwise transfer the Licensed Products except as expressly
provided in this License Agreement. OEM is prohibited from the disassembly or
decompilation of the object code or the disclosure of any other aspect of the
workings of the Licensed Products without the written consent of SMSI.
10.3 Trademarks. Unless otherwise agreed by the parties in writing, OEM
shall use SMSI's trademarks only for purposes of advertisement, promotion, and
licensing of the corresponding Licensed Products and for no other purposes. OEM
shall use such trademarks in accordance with the guidelines established by SMSI
from time to time. OEM shall not use any of SMSI's trademarks, service marks,
logos, or slogans in any manner likely to confuse, mislead, or deceive the
public, or to in any way that is injurious to the SMSI's reputation. In the
event OEM is permitted under this agreement to make copies of the Licensed
Products, OEM shall include copyright notices on any and all copies of Licensed
Products. Licensed Products shall always be known by the names set forth in
Appendix A attached hereto, or as otherwise agreed by the parties. OEM shall
restrict its sub-licensees of the Licensed Products similarly. SMSI may audit
OEM's use of SMSI's trademarks upon request. Should SMSI decide to register any
or all of its trademarks, OEM shall cooperate in all registration applications,
renewals and other procedures with the applicable trademark authorities.
Likewise, SMSI shall provide similar cooperation in OEM's efforts to register
and protect the RapidComm xxxx.
10.4 Confidentiality.
10.4.1 "Confidential Information" shall mean all information that is
not generally known to the public and in which a party has rights of any kind,
including, but not limited to, proprietary technology, trade secrets, know-how,
inventions (whether or not patentable), ideas, improvements, works of
authorship, derivative works, modifications, product development plans,
forecasts, strategies, names and expertise of employees and consultants,
techniques, processes, algorithms, schematics, software programs, designs,
together with all other business and technical information that a party
discloses to the other party, and such other information as is deemed
confidential by the disclosing party and identified as such at the time of
disclosure, or which, under the circumstances surrounding the disclosure to the
other party, ought reasonably to be treated as confidential. Information shall
not be deemed "Confidential Information" for the purposes of this Agreement that
(i) is already known to the non-disclosing party at the time of disclosure; (ii)
is or becomes publicly known through no wrongful act of the non-disclosing
party, including by public announcement by the disclosing party; (iii) is
received from a third party without similar restrictions and without breach of
this Agreement; (iv) is independently developed by the non-disclosing party; or
(v) is lawfully required to be disclosed by any governmental agency or otherwise
required to be disclosed by law.
10.4.2 Each party shall hold in trust and confidence and shall not
disclose any Confidential Information of the other party during the term of this
Agreement, and for a period of three (3) years following termination of this
Agreement other than its own employees who have a need to know and are bound in
writing
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under an appropriate confidentiality agreement. In so doing, such party shall
use the same degree of care, but no less than a reasonable degree of care, as
such party uses to protect its own confidential information of a like nature.
11. Termination.
11.1 Default. Each party has the right to terminate this Agreement for
the following reasons or causes:
11.1.1 In the case of a breach of Section 10 (Proprietary
Information, Confidentiality) termination shall be effective, upon ten (10) days
written notice;
11.1.2 For defaults in payment of money, if such other party
materially breaches or is in material default of any obligation hereunder, which
breach or default which has not been cured within thirty (30) days after service
of written notice of default of the non-breaching party;
11.1.3 In the event that OEM fails to maintain a satisfactory credit
rating or financial condition or if SMSI reasonably concludes that, for any
reason, OEM is or will become unable to discharge its obligations hereunder,
SMSI may immediately suspend shipment of the Licensed Software and may terminate
this Agreement upon thirty (30) days written notice. Alternatively, and without
waiving its termination rights hereunder, if SMSI deems that OEM has failed to
maintain a satisfactory credit rating or financial condition, SMSI may require
that shipments be paid for in advance or that payment be secured by letter of
credit or other form of security acceptable to SMSI in its absolute discretion.
11.1.4 If a party becomes insolvent, is adjudicated bankrupt or if a
receiver or trustee is appointed for a party for a substantial portion of its
assets, or if a party institutes or becomes a party to any proceeding for the
settlement of debts or an assignment for the benefit of creditors of such party,
and the situation is not corrected within thirty (30) days after it received
written notice from the non-defaulting party.
11.2 Conditions Upon Termination. The following conditions shall apply
upon termination:
11.2.1 OEM shall discontinue all use of the Licensed Products and
any copies thereof and, upon the written instruction of SMSI, shall deliver to
SMSI, or destroy, at SMSI's option, all previously delivered copies of the
Licensed Products and related materials furnished by SMSI and any copies thereof
in the possession of or under control of OEM. Notwithstanding the above, OEM
shall have the right to ship any Licensed Product previously copied and bundled
with the OEM's hardware for a period of ninety (90) days.
11.2.2 OEM shall also erase or destroy all Licensed Products or
copies or portions thereof contained or stored in any form or media, including
the memory of a computer or computer system in its possession or under its
control except as used to provide tier 1 customer support.
11.2.3 OEM shall certify to SMSI that the requirements of Sections
11.2.1 and 11.2.2 have been completed within fifteen (15) days of termination.
11.3 Addition to Other Rights. The termination rights set forth above
shall be in addition to, and not in substitution for, any other remedies that
may be available to the party serving notice upon the other party, and any
termination and any exercise of any such right shall not relieve the party
receiving notice from any obligations accrued to the date of such termination or
relieve such party from liability and damage to the other for breach of this
Agreement. No termination hereunder shall terminate any end user license.
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11.4 The termination of this Agreement shall not in any way affect OEM's
rights under any end user licenses for the Licensed Products heretofore or
hereafter acquired by OEM other than the pursuant to this Agreement.
12. Miscellaneous.
12.1 U.S. Government contracts. Any Licensed Products which OEM
distributes or licenses to or on behalf of the United States of America, its
agencies and/or instrumentalities (the "U.S. Government") are provided to OEM
with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government
is subject to restrictions as set forth in subparagraph (cX1)(ii) of the Rights
in Technical Data and Computer Software clause at 48 C.F.R. 252.227-7013 or in
subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted
Rights clause at 48 C.F.R. 52.227-19, as applicable. The Contractor/Manufacturer
is: Xxxxx Micro Software, Inc. 00 Xxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000. OEM
shall comply with any requirements of the U.S. Government to obtain such
RESTRICTED RIGHTS protection, including without limitation, the placement of any
restrictive legends on the Licensed Products and any license agreement used in
connection with the distribution of the Licensed Products. Under no
circumstances shall SMSI be obligated to comply with any U.S. Governmental
requirements regarding the submission of or the request for exemption for
submission of cost or pricing data or cost accounting requirements. For any
distribution or license of the Licensed Products that would require compliance
by SMSI with U.S. Governmental requirements relating to cost or pricing data or
cost accounting requirements, OEM must obtain an appropriate waiver or exemption
from such requirements for the benefit of SMSI from the appropriate U.S.
Governmental authority before the distribution and/or license of the Licensed
Products to the U.S. Government. Use, duplication, or disclosure by the U.S.
Government is subject to restrictions as set forth in this Agreement. OEM shall
procure U.S. Government waiver of any intellectual property rights in or
relating to Licensed Products.
12.2 Export. OEM will not, directly or indirectly, export or transmit the
Licensed Products, to any country to which such export or transmission is
restricted by regulation or statute, without the prior written consent, if
required, of the Office of Export Administration of the U.S. Department of
Commerce, or such other governmental entity as may have jurisdiction over such
export or transmission.
12.3 Independent Contractors. The parties are not employees or legal
representatives of the other party for any purpose. Neither party shall have the
authority to enter into any contracts in the name of or on behalf of the other
party.
12.4 Intentionally omitted.
12.5 Injunction. With respect to any breach of any agreement or covenant
contained in this Agreement, including without limitation, any agreement not to
use, disclose, copy, or distribute the Licensed Products or regarding SMSI's
confidential information and trade secrets, OEM agrees that SMSI will be
entitled to seek injunctive relief. OEM agrees and recognizes that SMSI may
suffer immediate and irreparable harm and money damages may not be adequate to
compensate SMSI or protect and preserve the status quo.
12.6 Survival. The obligations of Section 6 (Payment Schedule, Fees and
Charges), Section 8.5 (Limitation of Liability), Section 8.6 (Consequential
Damages), Section 9 (Indemnification), Section 10 (Proprietary Rights,
Confidentiality), Section 11 (Termination), and Section 12.4 (Injunction) shall
survive termination of any license hereunder.
12.7 Force Majeure. Neither party hereto shall be liable for the failure
to perform of any of its obligations under this Agreement, except an obligation
to pay, if such failure is caused by the occurrence of any force Majeure beyond
the reasonable control of such party, including without limitation fire, flood,
strikes and other industrial disturbances, failure of transport, accidents,
wars, riots, insurrections or acts of God. If the period of
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nonperformance exceeds thirty (30) days from the Force Majeure Event, the party
whose ability to perform has not been so affected may by giving written notice
terminate this Agreement.
12.8 CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER OF THE PARTIES
HERETO BE LIABLE TO THE OTHER FOR THE PAYMENT OF ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, COST OF
PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY INCURRED BY EITHER PARTY
OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A
WARRANTY, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE REMEDIES PROVIDED FOR HEREIN EMBODY THE
ESSENTIAL PURPOSE OF THE PARTIES HERETO WITH RESPECT TO REMEDIAL ACTION IN THE
EVENT OF BREACH OF THIS AGREEMENT.
12.9 Applicable Law. This Agreement shall be governed by the laws of the
State of California including its Uniform Commercial Code, without reference to
conflict of laws principles. The sole jurisdiction and Venue for any action with
respect to this Agreement shall be in Santa Xxxxx County, California.
12.10 Notices. Any notice or other communication hereunder shall be in
writing and deemed given if personally delivered or sent to a party by
commercial overnight delivery or registered or certified mail, return receipt
requested or, first class mail (air mail if served from outside the United
States) to SMSI at:
Xxxxx Micro Software, Inc.
00 Xxxxxxxx
Xxxxx Xxxxx, XX 00000
Attn.: Xx. Xxxx X. Xxxxxx
Telephone (000) 000-0000
Fax (000) 000-0000
and to OEM at the address specified in Appendix A, hereto with a copy to:
General Counsel
3Com Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Fax (000) 000-0000
Notices delivered personally, by overnight delivery or by registered or
certified mail shall be deemed communicated as of actual receipt; notices sent
by first class mail shall be deemed communicated as of three (3) days after
mailing. Each party may change such party's address by written notice in
accordance with this section.
12.11 Waiver. No term or provision hereof shall be deemed waived and no
breach excused unless such waiver or consent shall be in writing and signed by
the party claimed to have waived or consented.
12.12 Assignment. OEM shall not assign or subcontract all or any part of
this Agreement, or any interest therein, without SMSI's prior written consent,
except that OEM may assign to any corporate affiliate without SMSI's consent
provided that OEM remains the guarantor of all of its obligations under this
Agreement.
12.13 Binding Effects; Benefits. This Agreement shall inure to the benefit
of, and shall be binding upon, the parties hereto and their respective
successors and assigns. Nothing herein is intended to confer on any
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person other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations or liabilities under, or by reason of, this
Agreement.
12.14 Attorney's Fees. In the event of any controversy, claim or dispute
between the parties hereto arising out of or relating to this Agreement, the
prevailing party shall be entitled to recovery from the non-prevailing party its
reasonable expenses including, but not by way of limitation, attorneys' fees.
12.15 Severability; Partial Invalidity. If any provision of this Agreement
shall be declared invalid, void or unenforceable by a court of competent
jurisdiction, such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or any remaining provisions of this Agreement.
12.16 Captions; Headings. The headings of articles, sections and other
subdivisions hereof are inserted only for the purpose of convenient reference
and it is recognized that they may not adequately or accurately describe the
contents of the sections which they head. Such headings shall not be deemed to
govern, limit, modify, or in any other manner affect the scope, meaning or
intent of the provisions of this Agreement or any part or portion thereof, nor
shall they otherwise be given any legal effect.
12.17 Entire Agreement. This Agreement, together with all appendices or
other attachments referenced herein, constitutes the entire agreement between
SMSI and OEM and supersedes all proposals, oral and written, between the parties
on this subject. No changes or modifications to this agreement or waivers of any
provisions of this agreement shall be effective unless made in writing and
signed by both parties.
12.18 Counterparts. This Agreement may be executed in counterparts, which
together shall constitute the contract of the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
at Aliso Viejo, California and each hereby warrants and represents that its
representative whose signature appears below has been and is on the date of this
Agreement duly authorized by all necessary and appropriate corporate action to
execute this Agreement.
XXXXX MICRO SOFTWARE, INC.
By: /s/Xxxxxxx X. Xxxxx Xx.__________________________
Title: President/CEO_________________________________
Date: 12/15/98_______________________________________
3COM CORPORATION
By: /s/Xxxxx Devlin__________________________________
Title: V.P. and G.M._________________________________
Date: 12/15/98_______________________________________
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[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
SOFTWARE LICENSING AND DISTRIBUTION AGREEMENT
APPENDIX A
Name of OEM: 3Com Corporation, Client Access Business Unit (CABU).
Address of OEM: 3Com Corporation Phone: 000-000-0000
0000 Xxxx Xx.
Xxxxxxx Xxxxxxx, XX. 00000 Fax: 000-000-0000
1. OEM is a [corporation] organized and existing under the laws of the State
of Delaware.
2. Term of Agreement 1 year(s) commencing December 1, 1998.
3. Licensed Products:
Product Name(s): Version:
-------------------------------------------------------------------------------
a. RapidComm for Win.95/98/NT 2.0
b. RapidComm Voice for Win.95/98/NT 2.0
c. Combined RapidComm/RapidComm Voice for Win.95/98/NT 2.0
d. RapidComm for Win.3.x/95/98/NT 1.3.2 L, P
e. RapidComm Voice for Win.3.x/95/98/NT 1.3.2 L, P
f. RapidComm Mac 2.0
g. RapidComm Voice Mac 2.0
Any other current versions shipped by 3Com
4. OEM's Hardware:
a. Any OEM hardware
5. The Price per license shall be $[***] per copy. No royalties or other
charges shall be due or payable by OEM hereunder.
6. Technical Support:
Technical Support shall be provided by 3Com Corporation.
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[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
7. SMSI deliver to 3Com a gold master of RapidComm/RapidComm Voice 2.0 no
later than November 30, 1998.
7.1 In the event that SMSI fails to deliver such gold master to 3Com on
or before January 31, 1999, the royalty to be paid by 3Com for all copies
of RapidComm 1.3.2L/P and/or RapidComm 2.0 shipped during the month of
January, 1999 shall be $[***] per copy until such time as gold master is
delivered. Approval will not be unreasonably withheld.
8. RapidComm 2.0 shall contain the following features:
[***]
9. RapidComm 2.x additional feature requests.
[***]
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9. Future development work. SMSI may perform additional development work
("Future Projects") for additional features for RapidComm 2.0. The parties
shall mutually agree as to the timetable and costs associated for the
Future Projects from time to time.
10. Translations and Localizations. SMSI shall translate and localize at no
cost to OEM, RapidComm 2.0 and its Quick Start Guide for Windows 95/98,
Windows NT and Mac for the following languages:
Windows:
a. Spanish
b. Portuguese
c. French
d. Japanese
e. Korean
f. Simplified Chinese
g. Italian
h. German
i. Swedish
j. Dutch
k. Cyrillic/Russian
l. U.K /International English
Mac:
a. French
b. Spanish
c. U.K./International English
11. 3Com shall commit to volumes and regions for translations requested in
addition to the languages specified above or will pay a reasonable
translation fee per language for those not listed in section 10. above.
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APPENDIX B
[SMITHMICRO SOFTWARE LOGO]
MASTER RELEASE AUTHORIZATION
Xxxxx Micro Software, Inc. has supplied the below referenced product
master to you so that you can test it and let us know if it is acceptable.
Please test this master carefully since we will consider your approval as an
acceptance of all products duplicated from this master.
Once signed, please fax this form back to Xxxxx Micro Software at (714)
362-2300 so we may insure that our latest version of software is available for
your customers. No fax cover page is necessary. Thank you. DUPLICATION AND
SHIPMENT OF THE PRODUCT MASTER(S) MAY BE DELAYED IF NO AUTHORIZATION IS
RECEIVED.
Master is satisfactory: [ ] YES [ ] NO
Comments:
Master has been approved by:__________________________ _______________
Signature Date
Company: _____________________________________________
SMSI Engineering Manager: __________________________ _______________
Signature Date
SMSI Account Representative:__________________________ _______________
Signature Date
________________________________________________________________________________
Tested with all hardware and software that is to be shipped with the
following build?
Identification: __________________________________ ________________
Model Version
SMSI Quality Control: __________________________ ________________
Signature Date
________________________________________________________________________________
BUILD INFORMATION
Product
Date: Product No.:
Version: Volume Label:
Directory:
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