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EXHIBIT 10.14
[RIVERBED Technologies(TM) LOGO]
SCOUTIT(TM) SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS SCOUTIT(TM) SOFTWARE LICENSE AND SERVICES AGREEMENT (this
"Agreement") is made effective as of November 15, 1999 ("Effective Date") as
set forth below between Riverbed Technologies, Inc., a Delaware corporation,
with offices located at 2070 Chain Bridge Road, Suite 475, Vienna, Virginia
("Riverbed"), and OmniSky Corp., a Delaware corporation ("Licensee").
SUMMARY PAGE
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LICENSEE INFORMATION:
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Company Name: OmniSky Corp. Business Contact Information: Technical Contact Information:
Address: 299 California Ave. Name: Mike Dolbec Name: Dave Arada
Palo Alto, CA 94306
Telephone: 650-473-9700 Telephone: Telephone:
Fax: 650-323-6785 Fax: Fax:
Web address: www.omnisky.com e-mail: e-mail:
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LICENSEE AGREES TO BUY AND ACCEPT DELIVERY OF THE FOLLOWING:
SOFTWARE PRODUCT: Units: PER UNIT PRICE: SUBTOTAL:
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ScoutIT(TM) Server License 3 $20,000.00 $60,000.00
ScoutIT(TM) per Subscriber
1 to 5,000 As reported $ 0.00 per Subscriber TBD
5,001 to 50,000 As reported $ 5.00 per Subscriber TBD
50,001 to 100,000 As reported $ 3.00 per Subscriber TBD
100,001 to As reported $ 2.00 per Subscriber TBD
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TOTAL: $60,000.00
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PROFESSIONAL SERVICES:
Consulting Services estimate ___ hour $ 165.00 $__________
MAINTENANCE AND SUPPORT SERVICES FEES:
Annual Fees (for ScoutIT Server Licenses) $9,000.00
Maintenance and support begins 60 days after Effective Date and is calculated at 15% of site license price.
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TERM: From the Effective Date to December 31, 2001, renewable as described in Exhibit C.
PAYMENT TERMS:
Software - 100% of Server License fees: Due 30 days from Effective Date: $60,000.00
Annual Maintenance and Support Service fees: Due 60 days from Effective Date: $ 9,000.00
Professional Services: Due as incurred: $ TBD
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Subscriber Fees (as reported): Due net thirty (30) days from the
end of each calendar quarter.
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ALL PAYMENTS ARE IN US DOLLARS AND DO NOT INCLUDE APPLICABLE TAXES OR TARIFFS.
*For a period of 12 months from the Effective Date, should OmniSky, Corp. sign
a revised contract including additional ScoutWare products, these fees shall be
credited towards the fees due on the revised contract.
This Summary Page, the attached Terms and Conditions and the attached Exhibits
together form the complete agreement between Riverbed and the Licensee with
respect to the subject matter hereof. Riverbed and Licensee agree to be bound
by the terms and conditions of this Agreement. Prices are valid until December
31, 1999.
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RIVERBED TECHNOLOGIES, INC., a Delaware Corporation: OmniSky Corp., a Delaware Corporation:
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By: /s/ TODD P. HEADLEY Date: 12/13/99 By: /s/ MICHAEL D. DOLBEC Date: 12/10/99
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Name/Title: Todd P. Headley, CFO Name/Title: Michael D. Dolbec, CFO
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Confidential and Proprietary - Prepared 12/10/99
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TERMS AND CONDITIONS OF
SCOUTIT SOFTWARE LICENSE AND SERVICES AGREEMENT
1. LICENSE
A. Riverbed hereby grants to Licensee a perpetual (subject to Section 11),
limited, non-exclusive, non-transferable, right and license to use the computer
software components (the "Software") and documentation (the "Documentation")
listed on the Summary Page on the terms and conditions of this Agreement. All
terms and conditions of this Agreement are material terms of the license granted
by this Agreement. Riverbed will provide Licensee with a single copy of the
Software on machine-readable media. Licensee may use the Software and
Documentation only on the terms set forth on the Summary Page, only for the
conduct of Licensee's own business, and only to service Licensee's own customers
accessing Licensee's services. Licensee may not use the Software or
Documentation as part of a commercial time-sharing or service bureau operation
or in any other resale capacity. Licensee may not transfer, rent, lease, or
otherwise transfer possession of the Software to a third party.
B. Licensee acknowledges and agrees that the Software and Documentation are
owned by, and shall remain the sole property of, Riverbed, that the Software and
Documentation contain, embody and are based upon patented or patentable
inventions, trade secrets, copyrights and other intellectual property rights
(collectively, "Intellectual Property Rights") owned or controlled by Riverbed,
and that Riverbed shall continue to be the sole owner of all Intellectual
Property Rights in and to Software and Documentation including, without
limitation, any derivative works of Software and Documentation produced by
Riverbed. This Agreement does not convey to Licensee title or ownership of the
Software or Documentation, but only a right of limited use in accordance with
this Agreement. Licensee's agreements with its customers or subscribers shall be
no less protective of Riverbed's Intellectual Property Rights than the terms
contained herein. Licensee shall not remove, replace or obscure Riverbed's marks
or proprietary notices contained in or displayed by the Software.
C. Notwithstanding anything to the contrary in this Agreement, Licensee may
not use the Software in any high risk environment, including without limitation:
(i) online air traffic or aircraft navigation control; (ii) the design,
construction, operation, or maintenance of any nuclear facility; (iii) life
support systems; or (iv) the design, construction, operation, or production of
weapons or weapon systems.
D. Riverbed reserves all rights not expressly granted under this Agreement.
2. LICENSE AND MAINTENANCE FEES
A. As compensation for the license and the maintenance and support services
provided under this Agreement, Licensee will pay the fees specified on the
Summary Page.
B. Licensee will pay all taxes arising out of this Agreement except taxes
based upon the net income of Riverbed.
C. All payments will be paid to Riverbed by check or electronic funds
transfer in accordance with instructions provided by Riverbed. License fees will
be due on the Effective Date of this Agreement, except as otherwise specified
on the Summary Page. Unless otherwise specified on the Summary Page,
maintenance fees for any Maintenance Period will be due 30 days prior to the
start of the Maintenance Period, and Riverbed shall invoice Licensee 30 days
before such Maintenance fees are due. Fees for Consulting Services will be
invoiced monthly, based on the number of hours of Consulting Services provided
during the preceding month, and are due and payable 30 days from date of
invoice. Any payment not made by Licensee when due under this Agreement will be
subject to interest from the date such payment was due through the date paid,
at a rate of one and one-half percent (1 1/2%) per month, or the maximum rate
allowable at law, if less.
3. PERMISSION TO COPY OR MODIFY THE SOFTWARE
A. Licensee may copy the Software only for Licensee's own use for back-up and
archival purposes in conjunction with Licensee's permitted use of the Software.
Licensee may copy the Documentation for Licensee's own use of the Software in
accordance with this Agreement, but only as specified on the Summary Page. Any
copies that Licensee makes of the Software and Documentation, in whole or in
part, shall be and remain Riverbed's sole property. Licensee agrees to
reproduce and include Riverbed's copyright, trademark, and other proprietary
rights notices on any copies of the Software and Documentation, including,
without limitation, partial copies.
B. Licensee acknowledges and agrees that, except as specifically set forth in
this Agreement, it does not acquire under this Agreement any rights of use or
ownership with respect to any trade names, trade dress, trademarks, service
marks, commercial symbols, copyrightable material, designs, logos and/or any
other intellectual property of Riverbed.
C. Licensee agrees not to modify, create derivative works of, translate,
reverse engineer, decompile, disassemble or extract ideas, algorithms or
procedures from the Software except as permitted by applicable law.
4. CO-MARKETING
In connection with entering into this Agreement, the parties may agree to
promote each other and each other's products and services. Any such
co-marketing terms and conditions are set forth in Exhibit A. Riverbed shall
have the right to refer to Licensee as a licensee of Riverbed software,
provided that Riverbed shall obtain Licensee's approval prior to using
Licensee's name.
5. NONDISCLOSURE
A. "Confidential Information" means any and all information which is of a
confidential, proprietary or trade secret nature that is furnished or disclosed
by either Party ("Disclosing Party") to the other Party ("Receiving Party")
under this Agreement. Confidential Information includes the Software and
Documentation, whether or not marked as confidential, the specific business
terms of this Agreement, business plans, technical data, programs, contracts,
client lists, financial information, sales and marketing plans, business
information, and any other information that is marked as "Confidential,"
"Proprietary," "Trade Secret" or in some other manner to indicate its
confidential, proprietary or trade secret nature. "Confidential Information"
will be deemed to exclude any particular information that, as evidenced by
written documentation: (i) is or becomes publicly known without violation of
this Agreement; (ii) is already known to the Receiving Party without
restrictions as of the time of its disclosure; (iii) is independently developed
by the Receiving Party without reference to the Confidential Information; or
(iv) after its disclosure, is made known to the Receiving Party without
restrictions by a third party having the right to do so.
B. Confidential Information will remain the property of the Disclosing Party,
and the Receiving Party will not be deemed by virtue of this Agreement or any
access to Confidential Information to have acquired any right or interest in or
to any such Confidential Information. For a period of three years from the date
of disclosure of any Confidential Information, the Receiving Party shall: (i)
hold the Confidential Information in strict confidence and not disclose any
such Confidential Information to any third party (except as provided below);
(ii) use the Confidential Information solely and exclusively in accordance with
the terms of this Agreement in order to carry out its obligations and/or
exercise its rights
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under this Agreement; and (iii) notify the Disclosing Party promptly of any
unauthorized use or disclosure of the Confidential Information and cooperate
with and assist the Disclosing Party in every reasonable way to stop or
minimize such unauthorized use or disclosure. The Receiving Party shall not
disclose or permit the disclosure of Confidential Information to third parties
unless such third parties have a reasonable need to know such information in
connection with the Receiving Party's rights, duties and obligations under this
Agreement and each such third party has entered into a written confidentiality
agreement containing substantially the same protection as the confidentiality
provisions contained herein.
C. If Licensee receives a subpoena or other validly issued administrative or
judicial notice requesting the disclosure of Riverbed's Confidential
Information, Licensee will promptly notify Riverbed and, if so requested, will
provide reasonable cooperation to Riverbed in resisting the disclosure. Subject
to its obligations stated in the preceding sentence, Licensee will be entitled
to comply with any binding subpoena or other process to the extent required by
law, but will in doing so make every effort to limit the scope and secure
confidential treatment of any materials it is compelled to disclose.
D. Licensee agrees that if a court of competent jurisdiction determines that
Licensee has breached, or attempted or threatened to breach, its
confidentiality obligations to Riverbed or Riverbed's proprietary rights,
Riverbed will be entitled to obtain appropriate injunctive relief and other
measures restraining further or attempted or threatened breaches of such
obligations. Such relief or measures shall be in addition to, and not in lieu
of, any other rights and remedies available to Riverbed.
E. The provisions of this Section 5 shall remain in full force and effect and
otherwise survive the expiration or termination of this Agreement.
6. WARRANTIES
A. Riverbed shall promptly notify Licensee of the date on which the Software
is shipped ("Shipping Date"). Riverbed warrants that, during the period ending
sixty (60) days after the Shipping Date (the "Warranty Period"), performance of
the unmodified Software as delivered will conform in all material respects with
its then-current Documentation.
B. Riverbed warrants that, to its knowledge, neither the Software nor the
Documentation infringe upon any patent, copyright, trademark or trade secret of
any third party existing as of the Effective Date and arising or enforceable
under the laws of the United States.
C. Riverbed warrants that any Consulting, Maintenance or Support Services
provided under this Agreement will be performed in a workmanlike manner
consistent with reasonably applicable industry standards.
D. Notwithstanding the foregoing provisions of this Section 6, Riverbed does
not warrant the Software against material deviations from the Documentation or
claims of infringement caused by: (1) modifications made to the Software or any
portion of it by anyone other than Riverbed and its subcontractors; or (2) the
combination, operation or use of the Software with any software or equipment
that Riverbed did not supply to Licensee; or (3) Licensee's failure to use any
new or corrected versions of the Software or Documentation made available by
Riverbed.
E. Riverbed warrants that the Software will accurately process date/time
data, including calculating, comparing, and sequencing from, to, during, and
between the years 1999 and 2000 and correctly processing leap year
calculations, in accordance with the Documentation, provided that all
information technology products used in combination with the Software provide
unambiguous, error-free data and interoperate properly in effecting the
exchange of such data.
F. Riverbed will have no liability for, and expressly disclaims warranty with
regard to, the use of the Software in high-risk environments as specified in
Section 1.C.
G. 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, AND ANY IMPLIED
WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR
USAGE OF TRADE.
7. EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY; INDEMNITY
For any breach of the warranties contained in Section 6, Licensee's exclusive
remedy and the entire liability of Riverbed will be as follows:
A. If the Software does not perform as warranted in Sections 6.A or 6.E,
Riverbed's sole obligation will be to correct or modify the Software to make it
perform as warranted. If, after a reasonable opportunity to correct or modify
the Software, Riverbed is unable to make the Software perform as warranted,
Licensee will be entitled to recover Licensee's actual money damages subject to
the limitations set forth in Section 9. Riverbed may, at its option,
investigate and correct suspected nonconformities at Riverbed's offices to the
extent possible. If Riverbed's personnel travel to Licensee's place of business
at Licensee's direction to perform services that Riverbed could have performed
remotely and Riverbed notifies Licensee as soon as practicable after learning
that the services could be performed remotely, Licensee will pay Riverbed for
the actual travel time expended, reasonable travel and other out-of-pocket
expenses of Riverbed's personnel. If a suspected nonconformity is attributable
to a cause other than the unmodified Software as originally delivered by
Riverbed, then Licensee will pay for Riverbed's work on a time-and-materials
basis, plus reasonable travel and out-of-pocket expenses of Riverbed's
personnel.
B. If a third party brings an action against Licensee based upon a claimed
breach of the warranty given by Riverbed in Section 6.B (subject to Section
6.D), then Riverbed will, at its own expense, settle the claim or defend
Licensee in such proceeding and pay all settlements, costs, damages and legal
fees finally awarded, provided that Licensee promptly notifies Riverbed in
writing of the proceeding, provides Riverbed a copy of all information received
by Licensee with respect to the proceeding, and cooperates with Riverbed in
defending or settling the proceeding. Licensee shall allow Riverbed to control
the defense and settlement of the proceeding, including, without limitation,
the selection of attorneys; provided that, in any settlement, Riverbed shall
obtain a complete and unconditional release of Licensee. If such a proceeding
is brought or appears to Riverbed to be likely to be brought, Riverbed may, at
its sole option and expense, either obtain the right for Licensee to continue
using the allegedly infringing item(s) or replace or modify such item(s) to
resolve such proceeding. If such a proceeding is brought or appears to Riverbed
to be likely to be brought, Riverbed may, at its sole option and expense,
either obtain the right for Licensee to continue using the allegedly infringing
item(s) or replace or modify the item(s) to resolve such proceeding. If
Riverbed finds that neither of these alternatives is available to it on
commercially reasonable terms, Riverbed may require Licensee to return the
allegedly infringing item(s), in which case Licensee will receive a refund of
the amounts paid by it for the returned item(s), depreciated on a straight-line
basis over a five (5) year period commencing on the date the allegedly
infringing item(s) were delivered to Licensee by Riverbed. This Section 7.B
states Riverbed's entire obligation to Licensee and Licensee's sole remedy with
respect to any claim of infringement involving the Software.
C. In case of a breach of the warranty given in Section 6.C, Riverbed's sole
obligation will be to correct or re-perform any affected Consulting,
Maintenance or Support Services at no extra charge. If, after having a
reasonable opportunity, Riverbed fails to correct or re-perform any
non-conforming Consulting, Maintenance or Support Services, Licensee shall be
entitled to obtain a full refund of all fees corresponding to such
non-conforming Services.
D. Except for claims covered by Section 7.B, Licensee shall defend at its
expense, indemnify and hold Riverbed and its respective officers, directors,
shareholders, employees and agents (the "Indemnitees") harmless from all claims
or actions by third parties arising out of or relating to Licensee's use of or
inability to use the Software and
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Documentation and pay all settlements, costs and expenses (including, without
limitation, costs of investigation and reasonable legal fees and expenses),
damages, liabilities and awards provided that Riverbed promptly notifies
Licensee in writing of the claim, provides Licensee a copy of all information
received by Riverbed with respect to the claim or action, cooperates with
Licensee in defending or settling the claim or action, and allows Licensee to
control the defense and settlement of the claim or action, including, without
limitation, the selection of attorneys. The indemnitee shall have the right to
participate in the settlement or defense of any such claim or action at its own
expense. If, as a result of Licensee's negligence, Riverbed or Riverbed's
employees suffer personal injury or property damage, Licensee will reimburse
Riverbed for that portion of any claims Riverbed actually pays for which
Licensee is legally responsible.
E. The limitations of liability set forth in Section 9 will apply
notwithstanding the failure of any exclusive remedy set forth in this Section 7.
8. SOFTWARE MAINTENANCE AND SUPPORT SERVICES
A. At the expiration of the Warranty Period, Licensee may buy maintenance and
support services for the Software for an initial twelve (12) month period (a
"Maintenance Period") upon payment to Riverbed of the amount specified on the
Summary Page. At the expiration of the Initial Maintenance Period or any
subsequent Maintenance Period, Licensee may buy Maintenance and Support Services
for the Software for another Maintenance Period at Riverbed's then-current
prices: provided that: (i) Riverbed is still offering maintenance and support
Services for the Software; (ii) Licensee has paid the maintenance fees for all
prior Maintenance Periods; and (iii) Licensee incorporates into the Software
within 30 days of the issue date all enhancements and corrections to the
Software that Riverbed has made available to Licensee. Notwithstanding the
foregoing, Riverbed will provide Maintenance and Support Services for the
currently released version of the Software and the immediately prior version of
the Software.
B. Maintenance and Support consists of the following services: (i) Riverbed
will consult with Licensee for a reasonable amount of time by telephone during
Riverbed's normal business hours to assist Licensee in the use of the Software;
(ii) Riverbed will use its best efforts to supply computer program code to
correct any material nonconformities in the Software from the Documentation;
and (iii) Riverbed will provide Licensee with all fixes, workarounds, and
enhancements to the Software that Riverbed develops and generally makes
available at no charge to other licensees of the Software.
C. Riverbed may, at its option, investigate and correct suspected Errors at
Riverbed's offices to the extent possible. If Riverbed's personnel travel to
Licensee's place of business at Licensee's request to perform maintenance and
support services that Riverbed could have performed remotely, Licensee will pay
Riverbed for the actual travel time and reasonable travel and out-of-pocket
expenses of Riverbed's personnel. If Riverbed and Licensee mutually determine
that a suspected nonconformity is attributable to a cause other than the
unmodified Software as delivered by Riverbed, then Licensee will pay for
Riverbed's work on a time-and-materials basis, including reasonable travel and
out-of-pocket expenses of Riverbed's personnel. If no mutual determination can
be agreed upon, Licensee will pay for the reasonable travel and out-of-pocket
expenses of Riverbed's personnel only.
D. All enhancements and corrections to the Software provided by Riverbed
under this Section 8 will become a part of the Software for the purposes of
this Agreement at the time they are provided to Licensee and are hereby
included within the license grant, and subject to the provisions of, this
Agreement.
E. Except for the maintenance and support services provided pursuant to this
Section 8, this Agreement does not include any other professional services in
connection with Riverbed's provision of the Software. Additional Consulting
Services are offered to Licensee under the terms specified in Exhibit B.
9. LIMITATION OF LIABILITY
A. To the maximum extent permitted by applicable law, Riverbed's entire
liability and Licensee's exclusive remedy for damages from any event or claim
arising under or relating to this Agreement, for any cause whatsoever, and
regardless of the form of action, whether in contract or in tort (including,
without limitation, breach of warranty and negligence), will be limited as
follows:
(1) Riverbed will be liable for Licensee's direct damages only, in an amount
not to exceed, in the aggregate for all claims, the total amount of license
fees paid to Riverbed under this Agreement, except that in the case of claims
relating to any maintenance and support services provided under Section 8,
Riverbed's liability shall be limited to the total amount of maintenance fees
for the Maintenance Period in which the claim arose, and in the case of
Consulting Services provided pursuant to Exhibit B, Riverbed's liability shall
be limited to the cost of the Work Order under which the claim arose.
(2) IN NO EVENT WILL RIVERBED BE LIABLE FOR (A) ANY DAMAGES CAUSED BY A
PARTY'S FAILURE TO PERFORM ITS RESPONSIBILITIES; (B) ANY CLAIMS OR DEMANDS OF
THIRD PARTIES (OTHER THAN THOSE THIRD PARTY CLAIMS COVERED BY SECTION 7.B); OR
(C) ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOST SAVINGS OR OTHER
CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(3) Riverbed will not be held responsible, or to have failed to meet its
obligations under this Agreement, if it either delays performance or fails to
perform as a result of any cause beyond its reasonable control.
B. The foregoing limitations shall not apply to the payment of settlement
costs, damages and attorneys fees referred to in Section 7.B. The limitations
of liability set forth in this Section 9 will survive the expiration or
termination of this Agreement.
10. THIRD PARTY PRODUCTS
Licensee acknowledges that the Software requires the third party products
specified in the documentation identified on the Summary Page (the "Third Party
Products") in order to be operable. Prior to using the Software, Licensee must
obtain the Third Party Products (or a license to use the Third Party Products,
as applicable) from the applicable third party suppliers. Changes in the
Software which Riverbed may make from time to time may make it necessary for
Licensee to acquire, at its own expense, updated versions of the Third Party
Products or additional third party products. Riverbed shall have no warranty or
maintenance obligations for any Third Party Products.
11. TERMINATION
A. Either party may terminate this Agreement and the license granted by this
Agreement upon thirty (30) days' prior written notice if the other has
materially failed to comply with any of the terms and conditions of this
Agreement and fails to cure its non-compliance within such 30-day period.
Notwithstanding the foregoing, if Licensee breaches the terms of Section 1.B or
its nondisclosure obligations under Section 5, Riverbed shall have the right,
without affecting any other rights and remedies Riverbed may have, to terminate
this Agreement immediately upon written notice to Licensee. Termination of this
Agreement will be in addition to, and not in lieu of, other remedies available
to the terminating party under this Agreement.
B. Within fifteen (15) business days after the expiration or termination of
this Agreement for any reason, Licensee must, at Riverbed's option, either
deliver to Riverbed or destroy the original and all copies (including partial
copies) of the Software, the Documentation, all Riverbed Confidential
Information, and any other materials provided by Riverbed under this Agreement,
and certify in writing to Riverbed that Licensee has fully performed its
obligations under this paragraph.
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12. LAW AND DISPUTES
A. Any unresolved dispute relating to or arising from this Agreement shall be
resolved exclusively by a three (3) person arbitration panel, with such
arbitration proceeding conducted in accordance the Commercial Rules of the
American Arbitration Association then in effect. The arbitration panel shall be
composed of one arbitrator selected by each party and a third arbitrator
selected by the other two arbitrators. The arbitrators shall not have the
authority to add to, detract from, or modify any provision hereof nor to award
punitive damages to any injured party. A decision by a majority of the
arbitration panel shall be final and binding. Judgment may be entered on the
arbitrators' award in any court having jurisdiction. Unless otherwise agreed by
Riverbed and Licensee, arbitration will take place in Fairfax County, Virginia.
Notwithstanding the foregoing, the parties shall be entitled to seek injunctive
or other equitable relief from any court of competent jurisdiction, without the
need to resort to arbitration. Service of a petition to confirm the arbitration
award may be made by First Class mail or by overnight delivery service by a
nationally recognized carrier to the attorney for the party or, if
unrepresented, to the party at the last known business address.
B. The validity, construction and interpretation of this Agreement, and the
rights and duties of the parties, shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia, excluding its choice
of law rules, and excluding any application of the United Nations Convention on
Contracts for the International Sale of Goods. The parties hereto consent to
the jurisdiction of the state and federal courts of the United States serving
Fairfax County, Virginia, in connection with any controversy arising out of the
operation of this Agreement and agree not to bring any action in any other
jurisdiction.
C. Licensee agrees to comply fully with all applicable export control laws
and regulations, including those of the United States. Licensee agrees
specifically not to export, re-export or transmit, directly or indirectly, the
Software or Documentation or any technical data or service that is the direct
product of the Software or Documentation, to any country for which the U.S.
Export Administration Act, as currently amended, or its regulations, legally
requires Licensee to obtain prior U.S. government authorization, unless such
prior U.S. government authorization is obtained.
D. No proceeding, regardless of form, arising out of or in connection with
the transactions covered by this Agreement may be brought by either party more
than (2) years after the accrual of the cause of action, except that
proceedings related to violation of a party's proprietary rights or any duty to
protect Confidential Information may be brought at any time within the
applicable statute of limitations.
13. GENERAL TERMS AND CONDITIONS
A. Any notice or other communication required or permitted to be made or
given by either party pursuant to this Agreement will be in writing, in
English, and will be deemed to have been duly given: (i) five (5) business days
after the date of mailing if sent by registered or U.S. certified mail, postage
prepaid, with return receipt requested; (ii) when transmitted if sent by
facsimile, provided a confirmation of transmission is produced by the sending
machine and a copy of such facsimile is promptly sent by another means
specified in this Section 13.A; or (iii) when delivered if delivered personally
or sent by express courier service. All notices will be sent to the other party
at its address as set forth on the Summary Page to this Agreement or at such
other address as such party will have specified in a notice given in accordance
with this Section 13.A.
B. Neither party may assign or otherwise transfer any right or obligation set
forth in this Agreement without the other party's prior written consent, except
that either party may assign any right or obligation set forth in this Agreement
in connection with a merger, consolidation or sale of the party's business or
all or substantially all of its stock or assets. Any purported assignment in
violation of the preceding sentence will be null and void. This Agreement will
be binding upon the parties and their respective successors and permitted
assigns.
C. There are no intended third party beneficiaries of any provision of this
Agreement.
D. Riverbed is and will remain an independent contractor with respect to all
performance rendered pursuant to this Agreement. Neither Riverbed nor any
employee or agent of Riverbed will be considered an employee or agent of
Licensee for any purpose. Neither party, nor its employees, will have any
authority to bind or make commitments on behalf of the other party for any
purpose, nor will it or they hold itself or themselves out as having such
authority. Each party will be solely responsible for supervising, providing
daily direction and control, paying the salaries (including withholding of
income taxes and social security), worker's compensation, and disability
benefits of its personnel.
E. Each party acknowledges to the other that it has no current intention to
employ any person employed by the other party. Each party agrees not to solicit
for employment by such party or any of its affiliates, directly or indirectly,
until at least twelve (12) months after this Agreement terminates, any person
employed by the other party or any of its affiliates with whom such party had
contact in the course of performance of this Agreement during the preceding
twelve (12) months.
F. This Agreement (consisting of the Summary Page, these Terms and Conditions
and the Exhibits attached hereto, all of which are incorporated by reference
herein) constitutes the entire agreement between the parties, and supersedes
all other prior or contemporaneous communications between the parties (whether
written or oral), and all other communications relating to the subject matter
of this Agreement. In the event of any conflict among the various parts of this
Agreement, the terms of the Summary Page will supersede and take precedence
over the Exhibits and these Terms and Conditions, and the Exhibits will
supersede and take precedence over these Terms and Conditions. This Agreement
may be modified or amended solely in a writing signed by both parties. Any
terms contained in Licensee's purchase orders, acknowledgments, shipping
instructions, or other forms, that are inconsistent with or different from the
terms of this Agreement will be void and of no effect.
G. The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any one or more of its provisions shall not
affect the validity or enforceability of any of the other provisions. In
addition, if any provision of this Agreement, for any reason, is declared to be
invalid or unenforceable, the parties shall substitute a valid and enforceable
provision that, to the maximum extent possible in accordance with applicable
law, preserves the original intentions and economic positions of the parties.
H. No failure or delay by either party in exercising any right, power or
remedy will operate as a waiver of any such right, power or remedy, and no
waiver will be effective unless it is in writing and signed by the party waiving
its right, power or remedy. If either party waives any right it has under this
Agreement, such waiver will not waive any successive or other right the party
may have under this Agreement.
I. Sections 5, 7, 9, 12, 13 and any provisions of this Agreement that by
their sense and context contemplate continued performance or observance by one
or both parties following the expiration or termination for any reason of this
Agreement will survive any such expiration or termination.
J. Headings used in this Agreement are for convenience of reference only, and
will not be used to interpret or construe this Agreement.
K. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.
4 Confidential and Proprietary
(12/10/99)
<PAGE> 6
EXHIBIT A
TO SCOUTIT SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN RIVERBED TECHNOLOGIES, INC. AND OMNISKY CORP.
CO-MARKETING TERMS
Riverbed and Licensee agree to the following co-marketing terms.
1. Riverbed and Licensee agree to deploy and maintain reciprocal
internet "links" on their respective "Partner Websites" utilizing
each party's respective corporate logo, with such artwork and
message to be agreed upon and provided in an industry standard
electronic format. Each party shall obtain the written consent of
the other party prior to each form of use by a party of the other
party's logo, trademarks, service marks or other marks or symbols
used to identify the products or services of the other party.
2. Riverbed and Licensee agree to collaborate on and jointly prepare
a press release pertaining to this agreement, including statement
from a senior representative of each Party. The content and
timing of such releases shall be mutually agreed. Each Party
shall obtain the other Party's prior written consent before
releasing any information concerning that Party.
3. Each party agrees to use reasonable efforts to introduce the
other party to its business partners that may reasonably be in a
position to make use of the other party's products or services.
5 Confidential and Proprietary
(12/10/99)
<PAGE> 7
EXHIBIT B
TO SCOUTIT SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN RIVERBED TECHNOLOGIES, INC. AND OMNISKY CORP.
CONSULTING SERVICES
Riverbed agrees to provide Consulting Services to Licensee under the following
terms:
1. All Consulting Services will be specified, in writing, in a mutually
agreed work order (the "Work Order").
2. Unless otherwise specified in a Work Order, the hourly rate for
Consulting Services performed is subject to Riverbed's then-current
standard hourly rates (currently $165 per hour).
3. As necessary to facilitate the performance of Riverbed's
responsibilities under this Exhibit B, Licensee will arrange for
Riverbed personnel to have timely access to appropriate Licensee
facilities and personnel, and will arrange for Riverbed personnel to
have suitable and safe access to Licensee's facilities and systems.
Licensee will also provide commercially reasonable suitable office
space and associated resources for Riverbed personnel working on-site,
including all necessary computing and office support resources, and
will promptly respond to Riverbed's requests to provide direction,
information and approvals.
4. Upon termination of the Agreement pursuant to Section 11 of the Terms
and Conditions, this Exhibit B, and any Work Orders executed
hereunder, will also terminate. Riverbed will pay Licensee for all
services provided through the effective date of the termination, in
accordance with the provisions this Exhibit B.
5. The terms of this Agreement and the Exhibits shall take precedence
over the terms of any Work Orders.
6 Confidential and Proprietary
(12/10/99)
<PAGE> 8
EXHIBIT C
TO SCOUTIT SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN RIVERBED TECHNOLOGIES, INC. AND OMNISKY CORP.
PRICING AND REPORTING
This proposal is valid until December 31, 1999.
SOFTWARE PRICING:
ScoutIT(TM) Server Licenses: 3 Enterprise Licenses for $60,000.00
SUBSCRIBER FEES:
ScoutIT(TM) Subscriber Fees 1 to 5,000 $0.00 per Subscriber
5,001 to 50,000 $5.00 per Subscriber
50,001 to 100,000 $3.00 per Subscriber
100,001+ $2.00 per Subscriber
Subscriber Fees are due for each new customer on a one-time basis in the
quarter in which they initially begin service with Licensee. Subscriber Fees
are due net 30 days from the end of each calendar quarter.
TERM:
This Agreement shall commence on the Effective Date of this Agreement and shall
continue in full force and effect for an initial term ending on December 31,
2001. Thereafter, it shall automatically renew for successive one (1) year
terms, unless earlier terminated in accordance with the termination provisions
of this Agreement in Section 11.
REPORTING, RECORDS AND REVIEWS:
QUARTERLY REPORTS. Licensee shall, within thirty (30) days following the end of
each calendar quarter during the term of this Agreement, provide Riverbed with
a report of Licensee's number of new subscribers under this Agreement during
the immediately preceding quarter in a form and format to be mutually agreed
upon. For purposes of this agreement, a quarter shall be defined as the end of
March, June, September and December of each calendar year.
BOOKS AND RECORDS. Licensee shall prepare and maintain on a current basis
complete and accurate books and records concerning and documenting the
subscription of the Licensed Products in accordance with the standards of
accounting practice generally recognized as commercially reasonable.
AUDIT. Throughout the term of this Agreement, and for two years following its
expiration or termination, a third party accountant shall, on ten (10) days
prior written notice, have commercially-reasonable access during business hours
to inspect and review the books and records of Licensee that pertain to this
Agreement, and shall have the right pursuant to (and subject to Section 5 of)
this Agreement to make copies of, or extracts from, such books and records in
order to ascertain Licensee's compliance with all of the terms and provisions
of this Agreement. If such inspection should reveal that Licensee's actual
payments to Riverbed during the calendar year period covered by the inspection
were less than ninety-five percent (95%) of the amount which should have
been paid by Licensee to Riverbed during such period, Licensee shall, in
addition to paying all fees and expenses of Riverbed in connection with such
inspection and any interest on overdue amounts as provided for in this
Agreement, remit to Riverbed the balance of the unpaid amount plus an
additional amount equal to fifty (50%) of the unpaid amount, as a genuine
estimate of the damages incurred by Riverbed from Licensee's failure to remit
the appropriate amounts on a timely basis. Such payments shall constitute
Riverbed's sole and exclusive remedy for any such underpayment by Licensee.
Such audits shall take place not more frequently than one each calendar year.
7 Confidential and Proprietary
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<PAGE> 9
EXHIBIT D
MASTER PREFERRED ESCROW AGREEMENT
Master Number____________
This Agreement is effective December __, 1999 among DSI Technology Escrow
Services, Inc. ("DSI"), Riverbed Technologies, Inc. ("Depositor") and any
additional party signing the Acceptance Form attached to this Agreement
("Preferred Beneficiary"), who collectively may be referred to in this
Agreement as "the parties."
A. Depositor and Preferred Beneficiary have entered or will enter into a
license agreement, development agreement, and/or other agreement regarding
certain proprietary technology of Depositor (referred to in this Agreement as
"the License Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology except
under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical to
Preferred Beneficiary in the conduct of its business and, therefore, Preferred
Beneficiary needs access to the proprietary technology under certain limited
circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with DSI
to provide for the retention, administration and controlled access of certain
proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to 11 United States [Bankruptcy] Code, Section 365(n).
ARTICLE 1 - DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
parties, including the signing of the Acceptance Form, Depositor shall deliver
to DSI the proprietary technology and other materials ("Deposit Materials")
required to be deposited by the License Agreement or, if the License Agreement
does not identify the materials to be deposited with DSI, then such materials
will be identified on an Exhibit A. If Exhibit A is applicable, it is to be
prepared and signed by Depositor and Preferred Beneficiary. DSI shall have no
obligation with respect to the preparation, signing or delivery of Exhibit A.
1.2 Identification of Tangible Media. Prior to the delivery of the Deposit
materials to DSI, Depositor shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the
Deposit Materials are written or stored. Additionally, Depositor shall complete
Exhibit B to this Agreement by listing each such tangible media by the item
label description, the type of media and the quality. The Exhibit B must be
signed by Depositor and delivered to DSI with the Deposit Materials. Unless and
until Depositor makes the initial deposit with DSI, DSI shall have no
obligation with respect to this Agreement, except the obligation to notify the
parties regarding the status of the deposit account as required in Section 2.2
below.
1.3 Deposit Inspection. When DSI receives the Deposit Materials and the
Exhibit B, DSI will conduct a deposit inspection by visually matching the
labeling of the tangible media containing the Deposit Materials to the item
descriptions and quantity listed on the Exhibit B. In addition to the deposit
inspection, Preferred Beneficiary may elect to cause a verification of the
Deposit Materials in accordance with Section 1.6 below.
1.4 Acceptance of Deposit. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item
descriptions and quantity on Exhibit B, DSI will date and sign the Exhibit B
and mail a copy thereof to Depositor and Preferred Beneficiary. IF DSI
determines that the labeling does not match the item descriptions or quantity
on the Exhibit B, DSI will (a) note the discrepancies in writing on the Exhibit
B; (b) date and sign the Exhibit B with the exceptions noted; and (c) mail a
copy of the Exhibit B to Depositor and Preferred Beneficiary. DSI's acceptance
of the deposit occurs upon the signing of the Exhibit B by DSI. Delivery of the
signed Exhibit B to Preferred Beneficiary is Preferred Beneficiary's notice
that the Deposit Materials have been received and accepted by DSI.
1.5 Depositor's Representations. Depositor represents as follows:
a. Depositor lawfully possesses all of the Deposit Materials deposited
with DSI;
b. With respect to all of the Deposit Materials, Depositor has the right
and authority to grant to DSI and Preferred Beneficiary the rights as
provided in this Agreement;
c. The Deposit Materials are not subject to any lien or other
encumbrance;
d. The Deposit Materials consist of the proprietary technology and other
materials identified either in the License Agreement or Exhibit A, as
the case may be; and
e. The Deposit Materials are readable and usable in their current form
or, if the Deposit Materials are encrypted, the decryption tools and
decryption keys have also been deposited.
1.6 Verification. Preferred Beneficiary shall have the right, at Preferred
Beneficiary's expense, to cause a verification of any Deposit Materials. A
verification determines, in different levels of detail, the accuracy,
completeness, sufficiency and quality of the Deposit Materials. If a
verification is elected after the Deposit Materials have been delivered to DSI,
then only DSI, or at DSI's election an independent person or company selected
and supervised by DSI, may perform the verification.
1.7 Deposit Updates. Unless otherwise provided by the License Agreement,
Depositor shall update the Deposit Materials within 90 days of each release of
a new version of the product that is subject to the License Agreement. Such
updates will be added to the existing deposit. All deposit updates shall be
listed on a new Exhibit B and the new Exhibit B shall be signed by Depositor.
Each Exhibit B will be held and maintained separately within the escrow account.
An independent record will be created which will document the activity for each
Exhibit B. The processing of all deposit
8 Confidential and Proprietary
(12/10/99)
<PAGE> 10
updates shall be in accordance with Sections 1.2 through 1.6 above. All
references in this Agreement to the Deposit Materials shall include the initial
Deposit Materials and any updates.
1.8 Removal of Deposit Materials. The Deposit Materials may be removed
and/or exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. DSI shall maintain the Deposit Materials in a secure,
environmentally safe, locked facility that is accessible only to authorized
representatives of DSI. DSI shall have the obligation to reasonably protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement,
DSI shall not disclose, transfer, make available, or use the Deposit Materials.
DSI shall not disclose the content of this Agreement to any third party. If DSI
receives a subpoena or other order of a court or other judicial tribunal
pertaining to the disclosure or release of the Deposit Materials, DSI will
immediately notify the parties to this Agreement. It shall be the responsibility
of Depositor and/or Preferred Beneficiary to challenge any such order; provided,
however, that DSI does not waive its rights to present its position with respect
to any such order. DSI will not be required to disobey any court or other
judicial tribunal order. (See Section 7.5 below for notices of requested
orders.)
2.2 Status Reports. DSI will issue to Depositor and Preferred Beneficiary a
report profiling the account history at least semi-annually. DSI may provide
copies of the account history pertaining to this Agreement upon the request of
any party to this Agreement.
2.3 Audit Rights. During the term of this Agreement, Depositor and Preferred
Beneficiary shall each have the right to inspect the written records of DSI
pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI
3.1 Title to Media. Depositor hereby transfers to DSI the title to the media
upon which the proprietary technology and materials are written or stored.
However, this transfer does not include the ownership of the proprietary
technology and materials contained on the media such as any copyright, trade
secret, patent or other intellectual property rights.
3.2 Right to Make Copies. DSI shall have the right to make copies of the
Deposit Materials as reasonably necessary to perform this Agreement. DSI shall
copy all copyright, nondisclosure, and other proprietary notices and titles
contained on the Deposit Materials onto any copies made by DSI. With all Deposit
Materials submitted to DSI, Depositor shall provide any and all instructions as
may be necessary to duplicate the Deposit Materials including but not limited to
the hardware and/or software needed.
3.3 Right to Transfer Upon Release. Depositor hereby grants to DSI the right
to transfer Deposit Materials to Preferred Beneficiary upon any release of the
Deposit Materials for use by Preferred Beneficiary in accordance with Section
4.5. Except upon such a release or as otherwise provided in this Agreement, DSI
shall not transfer the Deposit Materials.
ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 Release Conditions. The occurrence of a "Release Condition" shall be
determined in accordance with Section 8.G. of the License Agreement.
4.2 Filing For Release. If a Release Condition has occurred, Preferred
Beneficiary may provide to DSI written notice of the occurrence of the Release
Condition and a request for the release of the Deposit Materials. Upon receipt
of such notice, DSI shall provide a copy of the notice to Depositor by
commercial express mail.
4.3 Contrary Instructions. From the date DSI mails the notice requesting
release of the Deposit Materials, Depositor shall have ten business days to
deliver to DSI Contrary Instructions. "Contrary Instructions" shall mean the
written representation by Depositor that a Release Condition has not occurred or
has been cured. Upon receipt of Contrary Instructions, DSI shall send a copy to
Preferred Beneficiary by commercial express mail. Additionally, DSI shall notify
both Depositor and Preferred Beneficiary that there is a dispute to be resolved
pursuant to Sections 8.G. and 12.A. of the License Agreement. Subject to Section
5.2, DSI will continue to store the Deposit Materials without release pending
(a) joint instructions from Depositor and Preferred Beneficiary; (b) notice of
resolution pursuant to Section 8.G. of the License Agreement; or (c) order of a
court.
4.4 Release of Deposit. If DSI does not receive Contrary Instructions from
the Depositor, DSI is authorized to release the Deposit Materials to the
Preferred Beneficiary or, if more than one beneficiary is registered to the
deposit, to release copy of the Deposit Materials to the Preferred Beneficiary.
However, DSI is entitled to receive any fees due DSI before making the release.
Any copying expense in excess of $300 will be chargeable to Preferred
Beneficiary. Upon any such release, the escrow arrangement will terminate as it
relates to the Depositor and Preferred Beneficiary involved in the release.
4.5 Right to Use Following Release. Unless otherwise provided in the License
Agreement, upon release of the Deposit Materials in accordance with this Article
4, Preferred Beneficiary shall have the right to use the Deposit Materials for
the sole purpose of continuing the benefits afforded to Preferred Beneficiary by
the License Agreement. The Preferred Beneficiary may not use, transfer or
disclose the Deposit Materials for any purpose outside the scope of the License
Agreement. Preferred Beneficiary shall be obligated to maintain the
confidentiality of the released Deposit Materials.
ARTICLE 5 -- TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is for a period of
one year. Thereafter, this Agreement shall automatically renew from year-to-year
unless (a) Depositor and Preferred Beneficiary jointly instruct DSI in writing
that the Agreement is terminated; (b) Preferred Beneficiary instructs DSI in
writing that the Agreement is terminated as it relates to Preferred Beneficiary;
or (c) the Agreement is terminated by DSI for nonpayment in accordance with
Section 5.2. If the Acceptance Form has been signed at a date later than this
Agreement, the initial term of the Acceptance Form will be for one year with
subsequent terms to be adjusted to match the anniversary date of this Agreement.
If the Deposit Materials are subject to another escrow agreement with DSI, DSI
reserves the right, after the initial one year term, to adjust the anniversary
date of this Agreement to match the then prevailing anniversary date of such
other escrow arrangements.
9 Confidential and Proprietary
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<PAGE> 11
5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed to
DSI, DSI shall provide written notice of delinquency to the parties to this
Agreement affected by such delinquency. Any such party shall have the right to
make the payment to DSI to cure the default. If the past due payment is not
received in full by DSI within one month of the date of such notice, then at
any time thereafter DSI shall have the right to terminate this Agreement to the
extent it relates to the delinquent party by sending written notice of
termination to such affected parties. DSI shall have no obligation to take any
action under this Agreement so long as any payment due to DSI remains unpaid.
5.3 Disposition of Deposit Materials Upon Termination. Upon termination of
this Agreement, DSI shall destroy, return, or otherwise deliver the Deposit
Materials in accordance with Depositor's instructions. If there are no
instructions, DSI may, at its sole discretion, destroy the Deposit Materials or
return them to Depositor. DSI shall have no obligation to return or destroy the
Deposit Materials if the Deposit Materials are subject to another escrow
agreement with DSI.
5.4 Survival of Terms Following Termination. Upon termination of this
Agreement, the following provisions of this Agreement shall survive:
a. Depositor's Representations (Section 1.5);
b. The obligations of confidentiality with respect to the Deposit
Materials;
c. The rights granted in the sections entitled Right to Transfer Upon
Release (Section 3.3) and Right to Use Following Release (Section 4.5),
if a release of the Deposit Materials has occurred prior to termination;
d. The obligation to pay DSI any fees and expenses due;
e. The provisions of Article 7; and
f. Any provisions in this Agreement which specifically state they survive
the termination or expiration of this Agreement.
ARTICLE 6 - DSI'S FEES
6.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses
applicable to the services provided. DSI shall notify the party responsible for
payment of DSI's fees at least 90 days prior to any increase in fees. For any
service not listed on DSI's standard fee schedule, DSI will provide a quote
prior to rendering the service, if requested.
6.2 Payment Terms. DSI shall not be required to perform any service unless the
payment for such service and any outstanding balances owed to DSI are paid in
full. Fees are due upon receipt of a signed contract or receipt of the Deposit
Materials whichever is earliest. If invoiced fees are not paid, DSI may
terminate this Agreement in accordance with Section 5.2. Late fees on past due
amounts shall accrue interest at the rate of one and one-half percent per month
(18% per annum) from the date of the invoice.
ARTICLE 7 - LIABILITY AND DISPUTES
7.1 Right to Rely on Instructions. DSI may act in reliance upon any
instruction, or signature reasonably believed by DSI to be genuine. DSI may
assume that any employee of a party to this Agreement who gives any written
notice, request, or instruction has the authority to do so. DSI shall not be
responsible for failure to act as a result of causes beyond the reasonable
control of DSI.
7.2 Indemnification. DSI shall be responsible to perform its obligations under
this Agreement and to act in a reasonable and prudent manner with regard to
this escrow arrangement. Provided DSI has acted in the manner stated in the
preceding sentence, Depositor and Preferred Beneficiary each agree to
indemnify, defend and hold harmless DSI from any and all claims, actions,
damages, arbitration fees and expenses, costs, attorney's fees and other
liabilities incurred by DSI relating in any way to this escrow arrangement.
7.3 Dispute Resolution. Except for disputes related to the occurrence of a
Release Condition, any dispute relating to or arising from this Agreement shall
be resolved by arbitration under the Commercial Rules of the American
Arbitration Association. Unless otherwise agreed by Depositor and Preferred
Beneficiary, arbitration will take place in San Diego, California, USA. Any
court having jurisdiction over the matter may enter judgment on the award of
the arbitrator(s). Service of a petition to confirm the arbitration award may
be made by First Class mail or by commercial express mail, to the attorney for
the party or, if unrepresented, to the party at the last known business address.
7.4 Controlling Law. This Agreement is to be governed and construed in
accordance with the laws of the State of California, without regard to its
conflict of law provisions.
7.5 Notice of Requested Order. If any party intends to obtain an order from
the arbitrator or any court of competent jurisdiction that may direct DSI to
take, or refrain from taking any action, that party shall:
a. Give DSI at least two business days' prior notice of the hearing;
b. Include in any such order that, as a precondition to DSI's obligation,
DSI be paid in full for any past due fees and be paid for the
reasonable value of the services to be rendered pursuant to such
order; and
c. Ensure that DSI not be required to deliver the original (as opposed to
a copy) of the Deposit Materials if DSI may need to retain the
original in its possession to fulfill any of its other escrow duties.
ARTICLE 8 - GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, which includes the Acceptance Form and
the Exhibits described herein, embodies the entire understanding among all of
the parties with respect to its subject matter and supersedes all previous
communications, representations or understandings, either oral or written. DSI
is not a party to the License Agreement between Depositor and Preferred
Beneficiary and has no knowledge of any of the terms or provisions of any such
License Agreement. DSI's only obligations to Depositor or Preferred Beneficiary
are as set forth in this
10 Confidential and Proprietary
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<PAGE> 12
Agreement. No amendment or modification of this Agreement shall be valid or
binding unless signed by all the parties hereto, except that Exhibit A need not
be signed by DSI, Exhibit B need not be signed by Preferred Beneficiary and the
Acceptance Form need only be signed by the parties identified therein.
8.2 Notices. All notices, invoices, payments, deposits and other documents and
communications shall be given to the parties at the addresses specified in the
attached Exhibit C and Acceptance Form. It shall be the responsibility of the
parties to notify each other as provided in this Section in the event of a
change of address. The parties shall have the right to rely on the last known
address of the other parties. Unless otherwise provided in this Agreement, all
documents and communications may be delivered by First Class mail.
8.3 Severability. In the event any provision of this Agreement is found to be
invalid, voidable or unenforceable, the parties agree that unless it materially
affects the entire intent and purpose of this Agreement, such invalidity,
voidability or unenforceability shall affect neither the validity of this
Agreement nor the remaining provisions herein, and the provision in question
shall be deemed to be replaced with a valid and enforceable provision most
closely reflecting the intent and purpose of the original provision.
8.4 Successors. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties. However, DSI shall have
no obligation in performing this Agreement to recognize any successor or assign
of Depositor or Preferred Beneficiary unless DSI receives clear, authoritative
and conclusive written evidence of the change of parties.
8.5 Regulations. Depositor and Preferred Beneficiary are responsible for and
warrant compliance with all applicable laws, rules and regulations, including
but not limited to customs laws, import, export, and re-export laws and
government regulations of any country from or to which the Deposit Materials
may be delivered in accordance with the provisions of this Agreement.
Depositor
RIVERBED TECHNOLOGIES, INC. DSI TECHNOLOGY ESCROW SERVICES, INC.
By:____________________________ By:____________________________________
Name:__________________________ Name:__________________________________
Title:_________________________ Title:_________________________________
Date:__________________________ Date:__________________________________
11 Confidential and Proprietary
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PREFERRED BENEFICIARY
ACCEPTANCE FORM
Account Number____________
Depositor, Preferred Beneficiary and DSI Technology Escrow Services, Inc.
("DSI"), hereby acknowledge that ____________ is the Preferred Beneficiary
referred to in the Master Preferred Escrow Agreement effective ____________,
1999 with DSI as the escrow agent and Riverbed Technologies, Inc. as the
Depositor. Preferred Beneficiary hereby agrees to be bound by all provisions of
such Agreement.
Depositor hereby enrolls Preferred Beneficiary to the following account(s):
<TABLE>
<S> <C>
Account Name Account Number
------------------------------------ -------------------------------
------------------------------------ -------------------------------
------------------------------------ -------------------------------
Notices and communications to Preferred Beneficiary
should be address to: Invoices should be addressed to:
Company Name:
----------------------- -------------------------------
Address:
---------------------------- -------------------------------
---------------------------- -------------------------------
---------------------------- -------------------------------
Designated Contact: Contact:
----------------- -----------------------
Telephone:
-------------------------- -------------------------------
Facsimile: P.O.#, IF REQUIRED:
-------------------------- ------------
------------------------------------ -------------------------------
Preferred Beneficiary Depositor
By: By:
--------------------------------- ----------------------------
Name: Name:
------------------------------- --------------------------
Title: Title:
------------------------------ -------------------------
Date: Date:
------------------------------- --------------------------
DSI Technology Escrow Services, Inc.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
</TABLE>
12 Confidential and Proprietary
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<PAGE> 14
[DSI TECHNOLOGY ESCROW SERVICES LOGO]
Fee & Services Schedule
<TABLE>
<CAPTION>
NEW ESCROW AGREEMENT ANNUAL FEE SETUP FEE
<S> <C> <C>
Comprehensive Preferred $2,150 $1,050
-------------------------------------------------------------------------------
Master Preferred $1,350 $2,050
-------------------------------------------------------------------------------
Reseller $1,350 $2,050
-------------------------------------------------------------------------------
Preferred $1,350 $1,050
-------------------------------------------------------------------------------
FlexSAFE $1,250 $350
-------------------------------------------------------------------------------
SAFE $1,250 $350
-------------------------------------------------------------------------------
Technology Protection $700 No Fee
-------------------------------------------------------------------------------
ADDITIONAL BENEFICIARY
-------------------------------------------------------------------------------
Preferred $650/ea. $1,000
-------------------------------------------------------------------------------
Master Preferred $650/ea. No Fee
-------------------------------------------------------------------------------
FlexSAFE $200/ea. No Fee
-------------------------------------------------------------------------------
SAFE $50/ea. No Fee
-------------------------------------------------------------------------------
ADDITIONAL DEPOSIT ACCOUNT
-------------------------------------------------------------------------------
Master Preferred $700 No Fee
-------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
SERVICE OPTIONS FEES
-------------------------------------------------------------------------------
<S> <C>
Unlimited deposit or replacement plus
one additional storage unit $300/yr.(1)
-------------------------------------------------------------------------------
Individual deposit updates or replacements $200/ea.
-------------------------------------------------------------------------------
DeposiTrack updates $300/ea.(1)
-------------------------------------------------------------------------------
Remote vaulting $500/yr.
-------------------------------------------------------------------------------
Release filing fee No Fee(2)
-------------------------------------------------------------------------------
Custom contracts No Fee(3)
-------------------------------------------------------------------------------
Additional storage units $100/ea.
-------------------------------------------------------------------------------
Technical verification (estimates based on $200/hr.)
Verification Level I $800(1) $1,2
------------------------------------------------------
Verification Level II 00-$1,600
------------------------------------------------------
Verification Level III $3,200-$6,400
-------------------------------------------------------------------------------
</TABLE>
------------
(1) Included in the Comprehensive Preferred annual fee.
(2) Copying expenses in excess of $300 will be chargeable.
(3) A one-time fee of $500 may be assessed for contract modifications that
change DSI's standard processes.
17 Confidential and Proprietary
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<PAGE> 15
EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number ________________
Depositor represents to Preferred Beneficiary that Deposit Materials delivered
to DSI shall consist of the following:
Riverbed Technologies, Inc.
Depositor Preferred Beneficiary
By: _________________________________ By: _________________________________
Name: _______________________________ Name: _______________________________
Title: ______________________________ Title: ______________________________
Date: _______________________________ Date: _______________________________
13 Confidential and Proprietary
(12/10/99)
<PAGE> 16
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name
---------------------------------------------------------
Account Number
-----------------------------------------------------------------
Product Name Version
-------------------------------------------- --------------
(Product Name will appear on Account History report)
DEPOSIT MATERIAL DESCRIPTION
Quantity Media Type & Size Label Description of Each Separate Item
(Please use other side if additional space is needed
Disk 3.5" or
-------- ---
DAT tape mm
-------- ----
CD-ROM
--------
Data cartridge tape
-------- ----
TK 70 or tape
-------- ----
Magnetic tape
-------- ----
Documentation
--------
Other
-------- ------------------
PRODUCT DESCRIPTION:
Operating System
---------------------------------------------------------------
Hardware Platform
--------------------------------------------------------------
DEPOSIT COPYING INFORMATION:
Is the media encrypted? Yes / No If yes, please include any passwords and the
decryption tools.
Encryption tool name Version
--------------------------- -----------------------
Hardware required
--------------------------------------------------------------
Software required
--------------------------------------------------------------
I certify for DEPOSITOR that the above DSI has inspected and accepted the
described Deposit Materials have been above materials (any exceptions are
transmitted to DSI: noted above):
Signature Signature
---------------------------- ---------------------------
Print Name Print Name
--------------------------- --------------------------
Date Accepted:
-----------------------
Date Exhibit B#
--------------------------------- --------------------------
Send materials to: DSI, 9265 Sky Park Court, #202, San Diego, CA 92123
(858) 499-1600
14 Confidential and Proprietary
(12/10/99)
<PAGE> 17
EXHIBIT C
DESIGNATED CONTACT
Master Number ____________
Notices and communications
should be addressed to: Invoices should be addressed to:
Company Name:______________________ ___________________________________
Address: __________________________ ___________________________________
__________________________ ___________________________________
__________________________ ___________________________________
Designated Contact: _______________ Contact: __________________________
Telephone: ________________________ ___________________________________
Facsimile: ________________________ P.O. #, if required: ______________
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee.
Contracts, Deposit Materials and Invoice inquiries and fee remittances
notices to DSI should be to DSI should be addressed to:
addressed to:
DSI DSI
Contract Administration Accounts Receivable
Suite 202 Suite 1450
9265 Sky Park Court 425 California Street
San Diego, CA 92123 San Francisco, CA 94104
Telephone: (858) 499-1600 (415) 398-7900
Facsimile: (858) 694-1919 (415) 398-7914
Date: ______________________
15 Confidential and Proprietary
(12/10/99)
<PAGE> 18
ADDITIONAL ESCROW ACCOUNT AMENDMENT
TO MASTER PREFERRED ESCROW AGREEMENT
Master Number ____________
New Account Number ____________
Riverbed Technologies, Inc. ("Depositor") has entered into a Master Preferred
Escrow Agreement with DSI Technology Escrow Services, Inc. ("DSI"). Pursuant to
that Agreement, Depositor may deposit certain Deposit Materials with DSI.
Depositor desires that new Deposit Materials be held in a separate account and
be maintained separately from the existing account. By execution of this
Amendment, DSI will establish a separate account for the new Deposit Materials.
The new account will be referenced by the following name: ____________________.
Depositor hereby agrees that all terms and conditions of the existing Master
Preferred Escrow Agreement previously entered into by Depositor and DSI will
govern this account. The termination or expiration of any other account of
Depositor will not affect this account.
Riverbed Technologies, Inc. DSI Technology Escrow Services, Inc.
By: _______________________________ By: _________________________________
Name: _____________________________ Name: _______________________________
Title: ____________________________ Title: ______________________________
Date: _____________________________ Date: _______________________________
16 Confidential and Proprietary
(12/10/99)
<PAGE> 19
ADDENDUM TO
SCOUTIT SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN RIVERBED TECHNOLOGIES, INC. AND OMNISKY CORP.
This Addendum is attached to and forms part of a software license and services
agreement dated as of November 15, 1999 (the "Agreement") between Riverbed
Technologies, Inc. ("Riverbed") and OmniSky Corp. ("Licensee").
In the event of any inconsistency between the terms of this Addendum and any
terms set out in the Terms and Conditions, the terms of this Addendum shall
govern. Notwithstanding the terms contained in the Agreement, including this
Addendum, the parties may mutually agree, at a future date, to supersede this
Agreement with a master strategic license and services agreement to govern the
provision of various products and services from Riverbed to Licensee.
1. SECTION 1.A IS AMENDED TO ADD THE FOLLOWING TO THE END OF SECTION 1.A:
Licensee may sub-license the ScoutIT Software client application to
its direct subscribers ("Subscribers") and reproduce that application
as necessary to distribute it to such Subscribers. Licensee or its
agents shall reproduce the ScoutIT Software client application in
accordance with industry best practices to ensure high quality
reproduction.
2. SECTION 6.A IS AMENDED TO READ AS FOLLOWS:
"Riverbed shall promptly notify Licensee of the date on which the
Software is shipped ("Shipping Date"). Riverbed warrants that, during
the period ending sixty (60) days after the Shipping Date (the
"Warranty Period"), performance of the unmodified Software as
delivered will perform in all material respects according to its
then-current Documentation when property installed on and used with
the Microsoft Windows CE or Palm operating systems, in the form in
which such systems exist as of the Effective Date."
3. SECTION 6.D IS AMENDED TO READ AS FOLLOWS:
"Notwithstanding the foregoing provisions of this Section 6, Riverbed
does not warrant the Software against material deviations from the
Documentation or claims of infringement caused by: (1) modifications
made to the Software or any portion of it by anyone other than
Riverbed and its subcontractors; (2) the combination, operation or
use of the Software with any software or equipment not supplied by
Riverbed to Licensee other than with the Microsoft Windows CE or
Palm operating systems as set forth in Section 6.A above; or (3)
Licensee's failure to use any new or corrected versions of the
Software or Documentation made available by Riverbed."
4. SECTION 7.D IS AMENDED TO READ AS FOLLOWS:
"Except for claims caused by a breach of Riverbed's warranties
contained in Section 6 of the Agreement (but only to the extent such
beach caused the claim) and claims covered by Section 7.B, Licensee
shall defend at its expense, indemnify and hold Riverbed harmless
from all claims or actions by third parties arising out of Licensee's
acts or omissions in connection its use of the Software and
Documentation and pay all settlements, costs and expenses (including,
without limitation, costs of investigation and reasonable legal fees
and expenses), damages, liabilities and awards provided that Riverbed
promptly notifies Licensee in writing of the claim, provides Licensee
a copy of all information received by Riverbed with respect to the
claim or action, cooperates with Licensee in defending or settling the
claim or action, and allows Licensee to control the defense and
settlement of the claim or action, including, without limitation, the
selection of attorneys; provided that, in any settlement, Licensee
shall obtain a complete and unconditional release of Riverbed.
Riverbed shall have the right to participate in the settlement or
defense of any such claim or action at its own expense. If, as a
result of Licensee's negligence, Riverbed or Riverbed's employees
suffer personal injury or property damage, Licensee will reimburse
Riverbed for that portion of any claims Riverbed actually pays for
which Licensee is legally responsible."
5. SECTION 8.C. IS AMENDED TO READ AS FOLLOWS:
"Riverbed may, at its option, investigate and correct suspected
Errors at Riverbed's offices to the extent possible. If Riverbed's
personnel travel to Licensee's place of business at Licensee's
request to perform maintenance and support services that Riverbed
could have performed remotely and Riverbed notifies Licensee as soon
as practicable after learning that such services could be performed
remotely, Licensee will pay Riverbed for the actual travel time and
reasonable travel and out-of-pocket expenses of Riverbed's personnel.
If Riverbed and Licensee mutually determine that a suspected
nonconformity is attributable to a cause other than the unmodified
Software as delivered by Riverbed, then Licensee will pay for
Riverbed's work on a time-and-materials basis, including reasonable
travel and out-of-pocket expenses of Riverbed's personnel. If no
mutual determination can be agreed upon, Licensee will pay only for
the reasonable travel and out-of-pocket expenses of Riverbed's
personnel."
6. A NEW SECTION 8.F. HEREBY IS ADDED TO THE AGREEMENT AS FOLLOWS:
"Copies of the Software in programming source code along with
necessary documentation for installing, maintaining or modifying the
Software ("Deposit Materials") have been deposited with Data
Securities International, Inc. of San Diego, California (or other
escrow agent mutually agreed upon by the parties), under a deposit
agreement, substantially in the form attached to the Agreement as
Exhibit D (the "Deposit Agreement"). Riverbed shall maintain the
Deposit Agreement in good force for each the first three
Maintenance Periods hereunder, provided that Licensee shall pay the
cost of maintaining Licensee as a Preferred Beneficiary under such
Deposit Agreement. Riverbed shall update the Deposit Materials within
90 days of each release of a new version of Software and such updates
will be added to the existing Deposit Materials. Riverbed shall not
cancel or modify such Deposit Agreement without thirty days notice to
Licensee. Licensee shall be entitled to access the Deposit Materials
if a Release Condition as set forth in Section 8.G of the Agreement
has occurred."
18 Confidential and Proprietary
(12/10/99)
<PAGE> 20
7. A NEW SECTION 8.G. HEREBY IS ADDED TO THE AGREEMENT AS FOLLOWS:
"If, during any of the first three annual Maintenance Periods, Riverbed,
its successors or assigns
(i) fails in any material respect to provide support for or maintain the
Software licensed by Licensee in accordance with the terms of this
Agreement during the term hereof; or
(ii) fails to continue to do business in the ordinary course and no
successor or assignee of Riverbed is obligated to support or maintain the
Software in accordance with this Agreement during the term hereof,
then, Licensee shall provide written notice of such failure (the "Notice")
to Riverbed. Within thirty (30) days of receipt of the Notice, Riverbed
shall cure such failure or mutually agree with Licensee on a plan to cure
such failure and in good faith, implement such plan (each of the foregoing,
a "Cure"). If the parties agree that Riverbed has failed to Cure, then,
subject to Section 12.A of the Agreement, a "Release Condition" shall be
deemed to have occurred and Licensee shall be entitled to (a) a prorated
refund of the prepaid Software maintenance fees for the remainder of the
Maintenance Period in which the Notice is received; and (b) the use the
source code of the Software in accordance with the Deposit Agreement to
continue to provide maintenance services to maintain and fix errors in the
Software for Licensee's continued use of the Software. All dispute under
this Section 8.G. that are unresolved by the parties (including, without
limitation, whether a failure to provide support or maintenance has
occurred or whether a Release condition has occurred) shall be resolved in
accordance with Section 12.A of the Agreement, and the arbitrators'
determination of whether a Release Condition has occurred shall be final
and binding upon the parties and enforceable in any court of competent
jurisdiction. The parties agree that they shall utilize the cure mechanism
provided herein prior to informing DSI that a release condition has
occurred."
8. SECTION 9.A.1. IS AMENDED TO READ AS FOLLOWS:
"Riverbed will be liable for Licensee's direct damages only, in an amount
not to exceed, in the aggregate for all claims, the total amount of license
fees paid to Riverbed under this Agreement, except that (a) in the case of
claims relating to any maintenance and support services provided under
Section 8, Riverbed's liability shall be limited to the total amount of
maintenance fees for the Maintenance Period in which the claim arose, (b)
in the case of Consulting Services provided pursuant to Exhibit B,
Riverbed's liability shall be limited to the cost of the Work Order under
which the claim arose, and (c) in the case of claims involving personal
injury, Riverbed's liability shall not be limited to the total amount of
fees paid by Licensee."
9. SECTION 9.A.2. IS AMENDED TO READ AS FOLLOWS:
"EXCEPT FOR CLAIMS INVOLVING PERSONAL INJURY, IN NO EVENT WILL EITHER PARTY
BE LIABLE FOR (A) ANY DAMAGES CAUSED BY A PARTY'S FAILURE TO PERFORM ITS
RESPONSIBILITIES; (B) ANY CLAIMS OR DEMANDS OF THIRD PARTIES (OTHER THAN
THOSE THIRD PARTY CLAIMS COVERED BY SECTION 7.B); OR (C) ANY LOST PROFITS,
LOSS OF BUSINESS, LOSS OF USE, LOST SAVINGS OR OTHER CONSEQUENTIAL,
SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR CLAIMS INVOLVING PERSONAL
INJURY, NEITHER PARTY'S LIABILITY SHALL EXCEED $1,000,000."
10. SECTION 11.B. IS AMENDED TO READ AS FOLLOWS:
"Within thirty (30) days after the expiration or termination of this
Agreement for any reason, Licensee must, at Riverbed's option, either
deliver to Riverbed or destroy the original and all copies (including
partial copies) of the Software, the Documentation, all Riverbed
Confidential Information, and any other materials provided by Riverbed
under this Agreement, and certify in writing to Riverbed that Licensee has
fully performed its obligations under this paragraph."
11. SECTION 13.E IS AMENDED TO READ AS FOLLOWS:
"Each party acknowledges to the other that it has no current intention to
employ any person employed by the other party. Each party agrees not to
solicit for employment by such party or any of its affiliates, directly or
indirectly, until at least twelve (12) months after this Agreement
terminates, any person employed by the other party or any of its affiliates
with whom such party had contact in the course of performance of this
Agreement during the preceding twelve (12) months. However, this provision
shall not be construed to prohibit either party or its affiliates from
hiring any such person provided that the hiring party or its affiliates do
not solicit such person for employment."
19 Confidential and Proprietary
(12/10/99)
<PAGE> 21
SECOND ADDENDUM TO
SCOUTIT(TM) SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN AETHER SOFTWARE, INC. AND OMNISKY CORPORATION
This Second Addendum is attached to and forms part of a software license and
services agreement dated as of November 15, 1999, as amended by that certain
Addendum dated December 10, 1999 (the "Initial Agreement") between Aether
Software, Inc. (formerly Riverbed Technologies, Inc., hereinafter referred to
as "Aether") and OmniSky Corporation ("Licensee"). Any reference in the Initial
Agreement to "Aether" shall now refer to "Aether".
In the event of any inconsistency between the terms of this Second Addendum and
any terms set out in the Terms and Conditions of the Initial Agreement, the
terms of this Second Addendum shall govern. Notwithstanding the terms contained
in the Agreement, to the extent not replaced by terms included in this Second
Addendum, the terms and conditions of the Initial Agreement remain in full
force and effect. The parties may mutually agree, at a future date, to
supersede this Agreement with a master strategic license and services agreement
to govern the provision of various products and services from Aether to
Licensee.
1. THE SUMMARY PAGE TO THE INITIAL AGREEMENT IS DELETED IN ITS ENTIRETY
AND A NEW "SCOUTWARE(TM) SOFTWARE LICENSE AND SERVICES AGREEMENT"
SUMMARY PAGE ("REPLACEMENT SUMMARY PAGE") IS ATTACHED IN PLACE
THEREOF.
2. EXHIBIT C TO THE INITIAL AGREEMENT IS DELETED IN ITS ENTIRETY AND A
NEW EXHIBIT C IS ATTACHED IN PLACE THEREOF.
3. SECTION 1.A OF THE INITIAL AGREEMENT IS DELETED IN ITS ENTIRETY AND
IS REPLACED WITH THE FOLLOWING:
(ii) SCOUTSYNC and SCOUTIT: Aether hereby grants to Licensee for the
three (3) year term of this Agreement, a worldwide, limited,
non-exclusive, non-transferable, right and license to use the
computer software components (the "ScoutSync and ScoutIT Software")
and documentation (the "ScoutSync and ScoutIT Documentation") listed
as ScoutSync and ScoutIT on the Summary Page according to the terms
and conditions of this Agreement. All terms and conditions of this
Agreement are material terms of the license granted by this
Agreement. Aether will provide Licensee with a single copy of the
ScoutSync and ScoutIT Software on machine-readable media. Licensee
may use the ScoutSync and ScoutIT Software and ScoutSync and ScoutIT
Documentation only on the terms set forth on the Summary Page, only
for the conduct of Licensee's own business or the business of a
Subsidiary, and only to service Licensee's own customers or customers
of a Subsidiary accessing Licensee's services. Licensee may not use
the Software or Documentation as part of a commercial time-sharing or
service bureau operation or in any other resale capacity apart from
Licensee's service, as of the effective date of this agreement.
Licensee may not transfer, rent, lease or otherwise transfer
possession of the Software to a third party, except for the
redistribution to end users of the client portion of the Software
through the re-sale channel. Licensee may sub-license the ScoutSync
and ScoutIT Software client application to its direct subscribers
("Subscribers") through the resale channel and reproduce the client
application as necessary to distribute it through the resale channel
to such Subscribers. Licensee or its agents shall reproduce the
ScoutSync and ScoutIT Software client application in accordance with
industry best practices to ensure high quality reproduction. In no
event shall Licensee sublicense or transfer the server application of
the Software, except in accordance with Section 13.B. of this
Agreement. For purposes of this Agreement the term "Subsidiary" shall
include only entities in which Licensee maintains more than
twenty-five percent (25%) ownership interest.
4. SECTION 1 IS FURTHER AMENDED TO ADD THE FOLLOWING NEW SUBSECTION E TO
THE END OF SECTION 1:
Currently Aether is in the process of developing data encryption
support to the Software. To the extent that encryption becomes
available during the term of this Agreement and provided Licensee is
current on payments required under this Agreement, such product
update will be sent without additional cost to Licensee when
commercially available upon its GA release.
5. SECTION 6.A IS AMENDED TO ADD THE FOLLOWING TO THE END OF SECTION 6.A:
Currently, Aether provides Licensee with Software to be used on
Microsoft Windows NT with Palm device operating systems. Should
Aether generally release a version of the Software to be used on
other device operating systems, Aether warrants that the performance
of such releases, if any, of such Software as delivered by Aether,
and unmodified by any other party, will conform in all material
respects with its then-current Documentation applicable to such
operating system and release.
Dated as of May 31, 2000.
AETHER SOFTWARE, INC., OmniSky Corporation,
a Delaware corporation: a Delaware Corporation:
By: /s/ LARRY ROSHFELD By: /s/ BARAK BERKOWITZ
---------------------------- ---------------------------------------
Name/Title: Larry Roshfeld, SVP Name/Title: Barak Berkowitz, President
<PAGE> 22
SCOUTWARE(TM) SOFTWARE LICENSE AND SERVICES AGREEMENT
This SCOUTWARE(TM) SOFTWARE LICENSE AND SERVICES AGREEMENT (this
"Agreement") is effective as of November 15, 1999 (the "Effective Date") between
Aether Software, Inc., a Delaware corporation with offices located at 8229 Boone
Boulevard, Vienna, Virginia 22182 ("Aether"), and OmniSky Corporation, a
Delaware corporation ("Licensee").
REPLACEMENT SUMMARY PAGE
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------
LICENSEE INFORMATION:
-----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Company Name: OmniSky Corporation Business Contact Information: Technical Contact Information:
Address: 1001 Elwell Court Name: Barak Berkowitz Name: Dave Arruda
Palo Alto, CA 94303
Telephone: 650-969-7700 Telephone: 650-962-4330 Telephone: 650-962-4330
Fax: 650-962-4500 Fax: 650-962-4500 Fax: 650-962-4500
Web address: www.omnisky.com e-mail: [email protected] e-mail: [email protected]
-----------------------------------------------------------------------------------------------------------
</TABLE>
LICENSEE AGREES TO BUY AND ACCEPT DELIVERY OF THE FOLLOWING:
SOFTWARE PRODUCTS(1): UNITS: SUBTOTAL:
ScoutSync and ScoutIT(TM) 36 month subscription $1,800,000.00
MAINTENANCE AND SUPPORT SERVICES FEES: Included in fee above
TOTAL: $1,800,000.00(2)
NOTES:
(1) The Software Products granted hereunder may be used by Licensee on a
worldwide basis, subject to the terms of this Agreement. Licensee may
request GA released versions of the ScoutSync and ScoutIT Software Products
utilizing other device operating systems, if, and when available, and such
products shall be made available to Licensee at no additional charge during
the term of this Agreement.
(2) $69,000.00 credit from initial order to be applied to payment schedule
below.
TERM: From June 1, 2000 to May 30, 2003.
PAYMENT TERMS:
Unless noted otherwise, Payments are due net 30 days from the following invoice
date(s):
Software and Maintenance Fees:
Invoice Dates:
1) June 30, 2000 (due net 60 days) $150,000.00 - $69,000.00 $81,000.00
2) Due in 33 equal monthly payments, beginning on July 15, 2000 $50,000.00
ALL PAYMENTS ARE IN US DOLLARS AND DO NOT INCLUDE APPLICABLE TAXES OR TARIFFS
This Summary Page, the attached Terms and Conditions and the attached Exhibits
together form the complete agreement between Aether and the Licensee with
respect to the subject matter hereof. Aether and Licensee agree to be bound by
the terms and conditions on this Agreement. Prices are valid until May 31, 2000.
AETHER SOFTWARE, INC. a OmniSky Corporation
Delaware corporation: a Delaware corporation:
By: /s/ LARRY ROSHFELD By: /s/ BARAK BERKOWITZ
----------------------------- -----------------------------------
Name/Title: SVP Name/Title: Barak Berkowitz, President
-------------------- ---------------------------
<PAGE> 23
EXHIBIT C
SCOUTWARE(TM) SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN AETHER SOFTWARE, INC. AND OMNISKY CORPORATION
REPORTING
REPORTING, RECORDS AND REVIEWS:
QUARTERLY REPORTS. Licensee shall, within thirty (30) days following the end of
each calendar quarter during the term of this Agreement, provide Aether with a
report of Licensee's number of new subscribers under this Agreement during the
immediately preceding quarter in a form and format to be mutually agreed upon.
The report for the first quarter shall be a good-faith estimate of new
subscribers with a reconciliation provided at the end of the second quarter.
For purposes of this agreement, a quarter shall be defined as the end of March,
June, September and December of each calendar year.
BOOKS AND RECORDS. Licensee shall prepare and maintain on a current basis books
and records concerning and documenting the subscription of the Licensed
Products in accordance with the standards of accounting practice generally
recognized as commercially reasonable.
AUDIT. Throughout the term of this Agreement, and for six months following its
expiration or termination, a third party accountant, satisfactory to Licensee,
which consent shall be unreasonably withheld shall, on ten (10) business days
prior written notice, have commercially-reasonable access, subject to
appropriate confidentiality arrangements, during normal business hours to
inspect and review the books and records of License that pertain to this
Agreement, and shall have the right pursuant to (and subject to Section 5 of)
this Agreement to make copies of, or extracts from, such books and records
solely in order to ascertain Licensee's compliance with all of the terms and
provisions of this Agreement. If such inspection should reveal that Licensee's
actual payments to Aether during the calendar year period covered by the
inspection were less than ninety-five percent (95%) of the amount which should
have been paid by Licensee to Aether during such period, Licensee shall, in
addition to paying all fees and expenses of Aether in connection with such
inspection and any interest on overdue amounts as provided for in this
Agreement, remit to Aether the balance of the unpaid amount plus an additional
amount equal to twenty-five (25%) of the unpaid amount, as a genuine estimate
of the damages incurred by Aether from Licensee's failure to remit the
appropriate amounts on a timely basis. Such payments shall constitute Aether's
sole and exclusive remedy for any such underpayment by Licensee. Such audits
shall take place not more frequently than once each calendar year and must be
completed within thirty (30) days after commencement.
<PAGE> 24
PREFERRED BENEFICIARY
ACCEPTANCE FORM
Account Number 0105022
Depositor, Preferred Beneficiary and DSI Technology Escrow Services, Inc.
("DSI"), hereby acknowledges that OmniSky Corporation is the Preferred
Beneficiary referred to in the Master Preferred Escrow Agreement effective May
19, 2000 with DSI as the escrow agent and Aether Software, Inc. as the
Depositor. Preferred Beneficiary hereby agrees to be bound by all provisions of
such Agreement.
Depositor hereby enrolls Preferred Beneficiary to the following account(s):
Account Name Account Number
------------ --------------
ScoutSync 0105022-00001
----------------------------------- ------------------------------------
----------------------------------- ------------------------------------
----------------------------------- ------------------------------------
Notices and communications to Preferred Invoices should be addressed to:
Beneficiary should be addressed to: (if blank, same as information to the
left)
Company Name: OmniSky Corporation Company Name: OmniSky Corporation
---------------------- -----------------------
Address: 1001 Elwell Court Address: 1001 Elwell Court
---------------------- -----------------------
Address: Palo Alto, CA 94303 Address: Palo Alto, CA 94303
---------------------- -----------------------
Contact: Contact: Accounts Payable
---------------------- -----------------------
Telephone: 650-962-7720 Telephone: 650-962-7700
---------------------- -----------------------
Facsimile: Facsimile:
---------------------- -----------------------
P.O. #, if
required:
-----------------------
OmniSky Corporation Aether Software, Inc.
Preferred Beneficiary Depositor
By: /s/ BARAK BERKOWITZ By:
----------------------------- ------------------------------
Name: Barak Berkowitz Name:
----------------------------- ------------------------------
Title: President Title:
----------------------------- ------------------------------
Date: Date:
----------------------------- ------------------------------
DSI Technology Escrow Services, Inc.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
Date:
-----------------------------
<PAGE> 25
[DSI TECHNOLOGY ESCROW SERVICES LOGO]
Fee & Services Schedule
<TABLE>
<CAPTION>
------------------------------------------------------------------------------
NEW ESCROW AGREEMENT ANNUAL FEE SETUP FEE
------------------------------------------------------------------------------
<S> <C> <C>
Comprehensive Preferred $2,150 $1,050
------------------------------------------------------------------------------
Master Preferred $1,350 $2,050
------------------------------------------------------------------------------
Reseller $1,350 $2,050
------------------------------------------------------------------------------
Preferred $1,350 $1,050
------------------------------------------------------------------------------
FlexSAFE $1,250 $ 350
------------------------------------------------------------------------------
SAFE $1,250 $ 350
------------------------------------------------------------------------------
Technology Protection $ 700 No Fee
------------------------------------------------------------------------------
ADDITIONAL BENEFICIARY
------------------------------------------------------------------------------
Preferred $650/ea. $1,000
------------------------------------------------------------------------------
Master Preferred $650/ea. No Fee
------------------------------------------------------------------------------
FlexSAFE $200/ea. No Fee
------------------------------------------------------------------------------
SAFE $ 50/ea. No Fee
------------------------------------------------------------------------------
ADDITIONAL DEPOSIT ACCOUNT
------------------------------------------------------------------------------
Master Preferred $ 700 No Fee
------------------------------------------------------------------------------
------------------------------------------------------------------------------
SERVICE OPTIONS FEES
------------------------------------------------------------------------------
Unlimited deposit or replacement plus
one additional storage unit $300/yr.(1)
------------------------------------------------------------------------------
Individual deposit updates or replacements $200/ea.
------------------------------------------------------------------------------
DeposiTrack updates $300/ea.(1)
------------------------------------------------------------------------------
Remote vaulting $500/yr.
------------------------------------------------------------------------------
Release filing fee No Fee(2)
------------------------------------------------------------------------------
Custom contracts No Fee(3)
------------------------------------------------------------------------------
Additional storage units $100/ea.
------------------------------------------------------------------------------
Technical verification (estimates based on $200/hr.)
Verification Level I $800(1)
Verification Level II $1,200-$1,600
Verification Level III $3,200-$6,400
------------------------------------------------------------------------------
</TABLE>
------------
(1) Included in the Comprehensive Preferred annual fee.
(2) Copying expenses in excess of $300 will be chargeable.
(3) A one-time fee of $500 may be assessed for contract modifications that
change DSI's standard processes.
