<PAGE> 1
EXHIBIT 10.1
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
--------------------------------------------------------------------------------
MINI-OSS SOFTWARE LICENSE, DEVELOPMENT
AND DISTRIBUTION AGREEMENT
BY AND BETWEEN
DORADO SOFTWARE, INC.
AND
ACCELERATED NETWORKS, INC.
DATED
JULY 1, 2000
--------------------------------------------------------------------------------
<PAGE> 2
[DORADO LOGO]
DORADO SOFTWARE, INC.
MINIOSS SOFTWARE LICENSE, DEVELOPMENT AND DISTRIBUTION AGREEMENT
This miniOSS Distribution Agreement ("Agreement"), dated July1, 2000 ("Effective
Date") is made by and between DORADO SOFTWARE INC. ("Dorado"), having its
principal place of business at 5176 Hillsdale Circle, El Dorado Hills, CA. 95762
and ACCELERATED NETWORKS ("CUSTOMER"), having its principal offices at 301
Science Drive, Moorpark, CA 93021, agree as follows:
1 DEFINITIONS:
1.1 SOFTWARE PRODUCTS means the Dorado Software proprietary computer
software set forth in Schedule A including but not limited to
Oware [***] to RedCell SAC & RedCell SPC and Related Materials
(including all new releases to the foregoing provided hereunder).
1.2 OWARE(TM) - is Dorado Software's flagship software product for
creating, executing and managing distributed business
applications.
1.3 REDCELL(TM) MetaPolicy Management - is a Dorado Software Solution
Blade [***], built with Oware for management of network policies
to deliver differentiated class of service to users of IP network
resources such as QoS policy-based networking for intranets and
the Internet. It consists of [***], created with Oware.
1.4 REDCELL(TM) SERVICE ASSURANCE CENTER (SAC) - is a Dorado Software
Solution Blade, built with Oware for managing of Service-Level
Agreements, Network Faults and Customer information. It consists
of [***], created with Oware technology.
1.5 REDCELL(TM) SERVICE PROVISIONING CENTER (SPC) - is a Dorado
Software Solution Blade, built with Oware for provisioning and
activation of OSI Level 1 & 2 services. It consists of [***],
created with Oware technology.
1.6 CUSTOMER SOLUTION BLADE means any Customer proprietary computer
software (in Source Code or Object Code) and Related Materials
developed with or incorporating the Software Products (or portions
thereof) or any derivative works of the Software Products (or
portions thereof), [***] in accordance with the Specifications
relating to Customer equipment in the SOW and the terms and
conditions hereunder.
1.7 RELATED MATERIALS means all materials furnished by Dorado Software
for use with, or promotion of, the Software Products, including
operating and instructional manuals and information,
specifications, and release notes.
1.8 SOURCE CODE means the referenced software, in human readable or
encrypted machine-readable form.
1.9 OBJECT CODE means the referenced software in a format that can be
executed by the processing unit of a computer without further
modification licensed.
-------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 1
<PAGE> 3
1.10 ENHANCEMENTS means changes or additions to the Software Products
or Related Materials that add significant new functions or
substantially improved performance.
1.11 ERROR means any material problem caused by an incorrect operation
of the computer code in the Software Products or an incorrect
statement or diagrams in Related Materials that produces incorrect
results.
1.12 PRODUCT TRANSFER DATE means the contract date to be used for the
determination of warranty periods, any acceptance periods, or any
other event which is controlled by an agreed to start date. This
date shall coincide with the date the software is received by
Customer.
1.13 DELIVERABLE means any item, documentation, information, software
or other materials identified in a SOW to be delivered to
Customer.
1.14 PROPRIETARY RIGHTS means patent rights, copyrights, trademark
rights, trade secret rights, and all other intellectual or
industrial property and proprietary rights of any sort anywhere in
the world.
1.15 SOW means the Statement of Work detailing the development of the
Customer Solution Blade attached hereto as Schedule B and any
future Statements of Work duly executed by authorized
representatives of both parties and attached hereto.
1.16 SPECIFICATIONS means either the requirements and specifications
for any Deliverable as set forth in the applicable SOW for that
Deliverable or, for the Software Products, the requirements and
specifications set forth in the Related Materials and any other
published documentation relating to the Software Products.
2 RECITALS
2.1 This Agreement specifies the terms and conditions under which
Dorado will license and provide the Software Products and services
to Customer and will develop the Customer Solution Blade for
Customer. This Agreement also sets forth the terms and conditions
under which Customer and/or its qualified affiliates shall pay for
the Software Products, Customer Solution Blade and services from
Dorado defined herein. All prices contained in this Agreement are
stated in US dollars.
2.2 Customer may use Software Products to develop it's own Customer
Solution Blades.
2.3 Customer may use [***] Dorado's RedCell(TM)Service Assurance
Center (SAC) and RedCell(TM)Service --- Provisioning Center (SPC)
applications within its Customer Solution Blades.
2.4 Dorado shall deliver the Software Products to Customer to enable
Customer to [***] develop modified --- versions of the Customer
Solution Blade [***]. ---
2.5 Customer may reproduce and distribute the portions of Software
Products [***] or in any Customer Solution Blade that Customer
develops [***] on its own in a runtime environment under the terms
of this Agreement.
2.6 Utilizing the Software Products, Dorado and Customer will work
together to deliver the Customer Solution Blade in multiple Phases
as defined in Schedule B of this agreement.
3 LICENSE AND ASSIGNMENT:
3.1 Subject to Customer's compliance with the terms and conditions of
this Agreement, Dorado hereby grants to Customer a perpetual,
nonexclusive, fully paid-up, royalty-free, nontransferable (except
as set forth in Section 14.3), irrevocable (except as set forth in
Section 14.1) license to (or through its independent contractors):
(a) install, use, execute, modify and create derivative works of
the Software Products on the computer(s) used by Customer at its
facilities for purposes of developing, testing and manufacturing
Customer Solution Blades; and (b) use the Related Materials only
in conjunction with the Software Products.
-------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 2
<PAGE> 4
3.2 Subject to Customer's compliance with the terms and conditions of
this Agreement, Dorado hereby grants to Customer a perpetual,
fully paid-up, royalty-free, non-transferable (except as set forth
in Section 14.3), irrevocable (except as set forth in Section
14.1) license to reproduce, distribute and sublicense to
Customer's end user customers runtime versions of (a) the Oware
software for use in conjunction with Customer Solution Blades and
(b) any of the Software Products or portions thereof that are
incorporated into any Customer Solution Blade only for the
purposes of managing and controlling Customer's own products and
those products that Customer OEM's from third parties. Customer
shall have the right to sublicense the rights set forth in this
Section 3.2 to original equipment manufacturers (OEMs),
value-added resellers (VARs) and other entities in the chain of
distribution of Customer Solution Blades.
3.3 Except for the rights explicitly granted to Customer herein, all
rights, title, and interest in and to the Software Products (and
all derivative works thereof) are and shall remain with Dorado.
Customer acknowledges that no ownership right, title, or interest
(except for the rights explicitly granted to Customer herein) in
or to the Software Products is granted under this Agreement, and
no such assertion shall be made by Customer.
3.4 Customer (and its independent contractors) may use as many copies
of the Software Products as is required for Customer's internal
business [***].
3.5 Dorado also grants to Customer the rights to distribute runtime
versions of the Software Products and the applicable portions of
the Related Materials to be used only in support of Customer
Solution Blades to Customer's end-user customers. Customer shall
have the right to sublicense the rights set forth in this Section
3.5 to original equipment manufacturers (OEMs), value-added
resellers (VARs) and other entities in the chain of distribution
of Customer Solution Blades.
3.6 Dorado, as part of the Software Maintenance agreement, will
continue to update Oware and the Dorado standard versions of
RedCell SAC and RedCell SPC for Customer.
3.7 Customer can have Dorado or its own resources or a third party
continue the updates to the Customer Solution Blades to include
additional functionality and Customer device types, whether OEMed
or manufactured by Customer.
3.8 Dorado hereby grants to Customer an option to include the RedCell
MetaPolicy application into the terms of this Agreement by
incorporating RedCell MetaPolicy under the definition of Software
Products hereunder. Customer may exercise this option by (i)
providing Dorado written notice of its intent to exercise such
option in accordance with Section 14.6 below on or before October
1, 2000 ("Exercise Notice") and (ii) payment of a one-time license
fee of [***] U.S. Dollars to --- Dorado on or before October 1,
2000. If the option to include the RedCell MetaPolicy is properly
exercised by Customer according to this Section 3.8, Customer may
elect to include the RedCell MetaPolicy under the terms and
conditions of the Software Maintenance and Support Agreement
attached as Schedule D by providing Dorado written notice
simultaneously with or within thirty (30) days following the
Exercise Notice, and Dorado will invoice Customer based on an
additional annual maintenance fee of [***] U.S. Dollars (covering
the RedCell MetaPolicy product) in accordance with Section 4
of the Software Maintenance and Support Agreement, with such
maintenance and support coverage to begin upon receipt by Customer
of the RedCell MetaPolicy application.
4 DORADO DEVELOPMENT OF THE CUSTOMER SOLUTION BLADE
4.1 Development. Dorado agrees to undertake and complete development
of the each Deliverable (including, without limitation, the
developed Customer Solution Blade) in accordance with and on the
schedule specified in each SOW.
-------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 3
<PAGE> 5
4.2 Development Project Management. Customer and Dorado designate
the following Project Managers:
Customer Project Manager: Joanne Maccari
Phone Number: (805) 553-9680 Ext. 553
Fax Number: (805) 553-9690
email: [email protected]
Dorado Project Manager: Andrew Knight
Phone Number: (916) 939-8590 ext. 3087
Fax Number: (916) 939-8595
email: [email protected]
Either party may change its Project Managers at any time and from
time to time by giving the other party fifteen (15) calendar days
written notice. Each Project Manager will be responsible for (i)
monitoring the schedules and progress of work pursuant to this
Agreement and each SOW; (ii) receiving and submitting requests for
information and/or assistance; (iii) determining whether a request
he or she receives for information and/or assistance from the
other Project Manager is necessary for the other party to complete
a specific Deliverable; (iv) receiving and submitting
Deliverables; (v) cooperating with the other Project Manager to
implement acceptance testing; and (vi) supervising and recording
the exchange of Confidential Information pursuant to this
Agreement. The Project Managers will meet periodically as mutually
agreed upon by the Project Managers to discuss the progress of the
development effort and, if applicable, to exchange information and
Deliverables (with such meetings expected to occur weekly via
teleconference and bi-weekly via physical meetings in alternating
Dorado and Customer locations). Except as set forth in Section 4.3
below, neither party's Project Manager is authorized to amend,
alter or extend this Agreement in any manner. If the Project
Managers disagree on any issue, and cannot resolve it within five
(5) business days, either Project Manager may submit the problem
to the Executive Steering Committee ("ESC") The ESC shall consist
of the CEO and the V.P. of Sales/Business Development from Dorado
and Yogi Mistry and Fred Boyer from Customer and shall meet upon
the request of a Project Manager to review progress and to resolve
major issues. The Executive Steering Committee may take action
only by the unanimous written consent of all members identified
above ("ESC Action"). To the extent that the terms and conditions
of any such ESC Action conflict with the terms and conditions of
this Agreement, the terms and conditions of such ESC Action will
prevail. With the exception of interim equitable relief, neither
party shall institute legal proceedings regarding a dispute until
it has exercised good faith reasonable efforts to achieve
resolution through the foregoing procedure.
4.3 Change Orders. If Customer's Project Manager proposes a change to
a SOW, Dorado will reasonably and in good faith consider and
discuss the proposed change. Dorado agrees to accept any change
proposed by Customer where Customer agrees to bear any extra
expense to Dorado and pay (at mutually agreed time and materials
rates) for any additional work required by such change. Any
agreement to change a SOW shall be in writing signed by both
party's Project Managers ("Change Order"). Notwithstanding
anything else herein, to the extent that the terms and conditions
of any Change Order conflict with the terms and conditions of this
Agreement, the terms and conditions of this Agreement will
prevail. If the parties' Project Managers cannot agree upon a
Customer SOW change request, then either party's Project Manager
can submit the request to the ESC for resolution in accordance
with Section 4.2.
4.4 Acceptance and Rejection Procedure. When Dorado has appropriately
completed a Deliverable in accordance with the Specifications for
such Deliverable, Dorado will immediately deliver it to Customer
(even if such a delivery would occur before the
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 4
<PAGE> 6
scheduled date for such delivery as listed in the applicable SOW).
Customer may reject any Deliverable if such Deliverable fails in
some material respect to meet the Specifications therefore. Each
Deliverable shall be inspected by Customer upon delivery and will
be deemed accepted by Customer unless written notification of
non-compliance is sent to Dorado, defined herein, within fifteen
(15) business days following receipt of such Deliverable by
Customer. A written notice of rejection should provide a
description of any such non-conformities. Upon Customer's
rejection of any Deliverable, Dorado shall correct the
non-conformities specified in the rejection notice within fifteen
(15) business following receipt of such notice. When Dorado has
made the necessary corrections to conform such a rejected
Deliverable with the Specifications, Dorado will deliver the
corrected Deliverable to Customer and the
acceptance/rejection/correction provisions above shall be
reapplied until the Deliverable is accepted by Customer; provided,
however, that upon the third or any subsequent rejection or if the
corrections are not made within thirty (30) calendar days of the
initial rejection, the issue of the Deliverable's non-compliance
shall be submitted to the ESC for resolution. If an ESC Action is
not taken within fifteen (15) business days following such
submission, Customer may terminate this Agreement by providing
fifteen (15) calendar days written notice to Dorado, unless the
Deliverable is accepted by Customer during such notice period.
4.5. Ownership of Deliverables. As between the parties, Customer
exclusively shall have all right, title and interest in and to all
Deliverables (except for the Software Products or other "Dorado
Stock" defined in this Section 4.5); and all inventions,
works-of-authorship, ideas or information made or conceived or
reduced to practice by Dorado (independently or jointly with a
third party) or the parties jointly in the course of performance
under this Agreement ("Inventions") and all Proprietary Rights in
the foregoing, subject to Dorado's rights in any "Dorado Stock"
incorporated into any Deliverable. Dorado Stock means the Software
Products, as well as derivatives and modifications thereof;
[***]. Dorado Stock shall include developed functionality not
directly related to managing and controlling Customer's own
products and those products that Customer OEM's from third
parties. [***].
4.6 Cooperation. Dorado agrees to perform, during and after the term
of this Agreement, all acts deemed necessary or desirable by
Customer to permit and assist Customer, at Dorado's hourly rate as
set forth in the most recent SOW (or, if no hourly rate is
specified in such SOW, at such rate Company in its sole discretion
deems reasonable), in evidencing, perfecting, obtaining,
maintaining, defending and enforcing Customer's Proprietary Rights
in any Deliverables, Inventions and/or the licenses and
assignments granted to Customer herein. Such acts may include, but
are not limited to, execution of documents and assistance or
cooperation in legal proceedings. If after a reasonable written
request by Customer to Dorado, Customer is unable for any reason
whatsoever to secure Dorado's signature to any document Customer
is entitled to under this Section 4.6, Dorado hereby irrevocably
designates and appoints Customer and its duly authorized officers
and agents, as Dorado's agents and attorneys-in-fact, with full
power of substitution, to act for and in its behalf and instead of
Dorado, solely to execute and file any such document and to do all
other lawfully permitted acts solely to further the purposes of
the foregoing with the same legal force and effect as if executed
by Dorado.
4.7 Moral Rights. Any assignment of copyright hereunder includes all
rights of paternity, integrity, disclosure and withdrawal and any
other rights that may be known as or referred to as "moral rights"
(collectively "Moral Rights"). To the extent such Moral Rights
cannot be assigned under applicable law and to the extent the
following is allowed by the laws in
-------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 5
<PAGE> 7
the various countries where Moral Rights exist, Dorado hereby
ratifies and consents to any action consistent with the terms of
this Agreement that would violate such Moral Rights in the absence
of such ratification/consent. Dorado will confirm any such
ratifications and consents from time to time as requested by
Customer.
4.8 Reports. During the term of this Agreement, Dorado shall provide
weekly status reports to Customer. The content of such reports
shall be mutually agreed upon by the parties, but at a minimum
will include (i) a list of tasks completed during the week covered
by the report, (ii) open issues that remain to be completed and or
resolved, along with proposed time frames for such completion or
resolution, (iii) all work anticipated to be completed during the
following week, and (iv) any project related dependencies.
5 LIMITED WARRANTY, LIMITATION OF LIABILITY, AND INDEMNITY
5.1 Dorado represents and warrants to Customer that as of the
Effective Date: (i) Dorado has not assigned, transferred,
licensed, pledged or otherwise encumbered any Software Product or
underlying technology or intellectual property rights with respect
thereto in a manner inconsistent with the terms of this Agreement
or agreed to do so, (ii) Dorado is not aware of any material
questions or challenges (or any potential basis therefor) with
respect to the patentability or validity of any claims of any
existing patents or patent applications relating specifically to
the Software Products, (iii) neither Dorado's entering into nor
performing this Agreement will violate any right of or breach any
obligation to any third party under any agreement or arrangement
between Dorado and such third party, and (iv) no licenses,
permissions, assignments or releases of third party rights are
necessary to give full effect the licenses and assignments granted
to Customer herein, for Dorado's development of the Customer
Solution Blade, or Customer's development, production or
distribution of any Customer Solution Blade or any other currently
anticipated exercise of its rights hereunder.
5.2 Dorado represents and warrants that the Software Products, each
Deliverable (including, without limitation, the Customer Solution
Blade as finally accepted by Customer), Related Materials and any
modifications, derivative works or Enhancements of the foregoing
made by Dorado, as delivered to Customer do not and will not
infringe any third-party Proprietary Rights.
5.3 Dorado warrants, for the benefit only of Customer, that for a
period of [***] after the first-time installation of each
separate Software Product and Deliverable, such Software Product
and Deliverable shall conform in all material respects to the
applicable Specifications for such Software Products (except for
modifications made to any Software Product by Customer or by
Dorado at the request of Customer) and Deliverables. Dorado
assumes no responsibility for obsolescence of the Software
Products.
5.4 As the exclusive remedy of Customer for the limited warranty of
Section 5.3, Dorado shall promptly provide modifications to
conform such Software Products and Deliverables to the applicable
Specifications. However, Dorado shall not be obligated to correct,
cure, or otherwise remedy any non-conformity directly resulting
from any (1) modification of the Software Products by Customer,
(2) misuse or damage of the Software Products or Deliverables
other than by Dorado employees and contractors, or (3) failure of
Customer to notify Dorado of the existence and nature of such
nonconformity or defect promptly upon its discovery.
5.5 EXCEPT AS SPECIFICALLY SET FORTH HEREIN, DORADO MAKES NO
WARRANTIES, WHETHER EXPRESS OF IMPLIED, REGARDING OR RELATING TO
THE SOFTWARE PRODUCTS, RELATED MATERIALS, DELIVERABLES OR TO ANY
OTHER MATERIALS FURNISHED OR PROVIDED TO CUSTOMER HEREUNDER.
DORADO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
-------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 6
<PAGE> 8
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT
TO SAID SOFTWARE PRODUCTS OR THE USE THEREOF.
5.6 EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNITY OBLIGATIONS
HEREUNDER OR ITS BREACH OF SECTION 10, IN NO EVENT SHALL EITHER
PARTY BE LIABLE UNDER ANY CLAIM, DEMAND, OR ACTION ARISING OUT OF
OR RELATING TO ITS PERFORMANCE OR LACK THEREOF UNDER THIS
AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH CLAIM, DEMAND, OR ACTION. EXCEPT WITH
RESPECT TO EACH PARTY'S INDEMNITY OBLIGATIONS HEREUNDER OR ITS
BREACH OF SECTION 10, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER HEREUNDER FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO
DORADO HEREUNDER.
5.7 Customer shall and does hereby agree to defend, indemnify, hold
harmless, and save Dorado (its affiliates, directors and
employees) from liability against any claim, demand, loss, or
action (including, without limitation, attorneys' fees and expert
witness fees) (1) resulting from Customer's modification of the
Software Products, Deliverables, Customer Solution Blades or
Related Materials and (2) alleging that such modifications made by
Customer infringe any third-party rights respecting copyright,
trade secret, or patent to the extent that the alleged
infringement would not have occurred but for such modifications.
The foregoing indemnification is predicated upon Dorado fully
cooperating with Customer in the defense or settlement of such
actions and giving Customer prompt written notice of any claim,
demand, or action for which indemnification is sought.
5.8 Dorado shall and does hereby agree to defend, indemnify, hold
harmless, and save Customer (its affiliates, directors and
employees) from liability against any claim, demand, loss, or
action (including, without limitation, attorneys' fees and expert
witness fees) arising from or related to a breach by Dorado of
Sections 5.1 and 5.2. The foregoing indemnification is predicated
upon Customer fully cooperating with Dorado in the defense or
settlement of such actions and Customer providing Dorado with
prompt written notice(s) by fax/e-mail and/or postal/courier of
any claim, demand, or action for which indemnification is sought.
6 RESPONSIBILITIES OF DORADO
6.1 Dorado will provide the development services to Customer as set
forth in each SOW in accordance with the highest industry
standards.
6.2 Dorado will provide Software Maintenance & Support services as
defined in Schedule D to this Agreement.
7 RESPONSIBILITIES OF CUSTOMER
7.1 Customer agrees to pay Dorado for products and services according
to the Financials and Business Arrangements outlined in Schedule
C.
7.2 Customer agrees to provide the appropriate support to Dorado to
enable the development and testing of each Deliverable. As
Customer deems appropriate in its sole discretion, such support
may include: a) Access to Customer product documentation and
specifications b) Delivery of Customer products to Dorado's
offices for development and testing purposes, c) Access to a
Customer product "expert" to answer questions, provide feedback
and other misc. support requests - in a timely manner.
8 MISCELLANEOUS DELIVERABLES
Within thirty (30) business days of the execution of this
Agreement, Dorado and Customer will execute the Software Escrow
Agreement attached to this agreement as Schedule F. Customer
agrees to pay the annual escrow maintenance fees.
9 MARKETING & PRESS ANNOUNCEMENTS
9.1 Upon execution of this agreement, Dorado and Customer agree to a
public announcement of the relationship.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 7
<PAGE> 9
9.2 Dorado and Customer will mutually agree to the content of such a
press release.
9.3 [***]
10 PROPRIETARY PROTECTION OF MATERIALS
10.1 Confidential Information means information that each party (a
"Disclosing Party") may, from time to time, in connection with its
performance under this Agreement (or during the negotiation of
this Agreement), disclose to the other party (the "Receiving
Party") and that is marked "proprietary" or "confidential," or
when disclosed orally the Disclosing Party notifies the Receiving
Party in writing of its confidential nature within ten (10)
business days of disclosure. Notwithstanding the foregoing, all
information and materials disclosed to Dorado by Customer for use
in the development or creation of any Deliverable or Invention and
all information comprising or relating to any Deliverable or
Invention shall be deemed the Confidential Information of Customer
subject to the disclosure restrictions of this Section 10. Each
Receiving Party agrees not to use or to disclose to any third
party (other than for purposes contemplated by this Agreement),
and will use reasonable efforts to prevent the disclosure to third
parties of, any of the Disclosing Party's Confidential
Information. Notwithstanding any provision to the contrary set
forth in this Section 10, each Receiving Party shall have the
right to disclose the Disclosing Party's Confidential Information
to third-party consultants who need to know such Confidential
Information in order to perform services as contemplated
hereunder; provided, that such consultants have entered into
written confidentiality and nonuse agreements, of which the
Disclosing Party is a third-party beneficiary with rights of
direct enforcement, with terms and conditions protecting the
confidentiality of the Disclosing Party's Confidential Information
that are at least as stringent as those set forth in this
Agreement. The Receiving Party's confidentiality obligations
hereunder shall not apply to information that the Receiving Party
can document: (i) was in the Receiving Party's possession or known
by it without restriction prior to receipt from the Disclosing
Party; (ii) is or (through no fault of the Receiving Party or any
of its employees, contractors, agents or licensees) becomes
generally available to the public; (iii) is rightfully disclosed
to the Receiving Party by a third party having no obligations of
confidentiality to the Disclosing Party; provided, that the
Receiving Party complies with any restrictions imposed by such
third party; (iv) is independently developed by the Receiving
Party without use of or reference to the Disclosing Party's
Confidential Information; or (v) is required by law or regulation
to be disclosed (including, without limitation, in connection with
filings with the United States Securities and Exchange
Commission); provided, that the Receiving Party uses reasonable
efforts to restrict disclosure, to obtain confidential treatment
therefor, and to notify the Disclosing Party of the compelled
disclosure and to give the Disclosing Party the opportunity to
participate in proceedings contesting such disclosure or seeking a
protective order with respect thereto. Notwithstanding the
foregoing, all Deliverables and Inventions developed by or for
Dorado and designated as owned by or assigned to Customer
hereunder shall be deemed the Confidential Information of Customer
disclosed by Customer to Dorado, and exceptions (i) and (iv) above
will not be applicable thereto.
10.2 Each party acknowledges and agrees that, due to the unique nature
of the Disclosing Party's Confidential Information, there can be
no adequate remedy at law for any breach of its obligations under
this Section 10, that any such breach may allow the Receiving
Party or third parties to unfairly compete with the Disclosing
Party, resulting in irreparable harm to the Disclosing Party, and,
therefore, that upon any such breach or threat thereof, the
Disclosing Party shall be entitled to seek injunctive relief and
other appropriate equitable relief, without the necessity of
posting any bond, in addition to whatever remedies it may have
under this Agreement and at law, and to be indemnified by the
Receiving Party from any loss or harm (including, without
limitation, for attorneys' fees) in
-------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 8
<PAGE> 10
connection with any breach or enforcement of the Receiving Party's
obligations hereunder or the unauthorized use or release of any
Confidential Information. The Receiving Party will notify the
Disclosing Party in writing immediately upon the occurrence of any
such unauthorized release or other breach of which it is aware.
10.3 Customer further agrees not to reverse assemble or reverse
engineer the Software Products to acquire knowledge about the
logic, structure or sequence of Software Products or decode any
Software Products or to bypass or defeat protection methods
provided for preventing unauthorized uses of the Software Products
or to derive any Source Code or algorithms therefrom without prior
written permission from Dorado.
10.4 The provisions of this Section 10 ("Proprietary Protection of
Materials") shall survive termination of this Agreement for any
reason.
11 CHARGES AND PAYMENTS:
11.1 Customer shall pay Dorado for one-time license fees, annual
software maintenance, and professional services as set forth in
Schedule C to this Agreement. Dorado shall perform the services
described in Schedule B (Statement of Work) and its referenced
documents on a "fixed price" basis. Notwithstanding the fixed
price nature of the service engagement, any changes to the
requirements set forth in the SOW and related documents caused by
a) any changes requested by Customer or necessitated by Customer's
actions, b) any modifications to Customer's equipment and any
associated interfaces or operating systems, or c) any failure or
delay of Customer to provide deliverables according to the
agreed-upon project schedule(s) or as requested by Dorado, shall
be considered a change and shall be subject to the change order
process and additional charges as set forth in section 4.3 of this
Agreement. Any failure of Customer to provide qualified personnel
to assist Dorado as described under "resource assumptions" in
Schedule B shall result in additional charges on a time and
material basis.
11.2 Customer agrees to make payments to Dorado in accordance with the
Financials and Business Arrangements as set forth in Schedule C.
All payments are due thirty (30) days following either the
execution of this Agreement by both parties or a Deliverable
Milestone Event as set forth in Schedule C as the case may be. For
all amounts owed as a result of a Deliverable Milestone Event,
payments shall be due thirty (30) days following the acceptance of
such Deliverable by Customer in accordance with Section 4.
11.3 Annual software product maintenance and support services as
described in Schedule D shall become effective and shall be
invoiced by Dorado upon the earlier of a) delivery of the Phase 2
Beta Release to Customer, or b) deployment of the Customer
Solution Blade or any of the Software Products by Customer.
11.4 Customer agrees not to withhold payments from Dorado due to any
provision in this Agreement, except in the event of Dorado's
breach of the Agreement or as otherwise specifically allowed
herein.
11.5 Subject to Customer's prior approval of all expenses, Customer
will reimburse Dorado for reasonable travel, lodging, and meal
expenses and any other expenses incurred for travel to Customer's
facilities. Dorado may elect to suspend the provision of services
under any outstanding SOW during any period when Customer is over
sixty (60) days past due on any amount legally owing to Dorado
hereunder and which is not subject to a good faith dispute.
12 TAXES:
Customer agrees to pay any taxes or similar charges imposed by federal,
state, municipal, or other governmental entities on any charges under
this Agreement on the Software Products or Related Materials furnished
hereunder or their use. Notwithstanding the foregoing, Dorado shall be
responsible for payment of all taxes on its net income relating to this
agreement.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 9
<PAGE> 11
13 MARKETING & PRODUCT "BRANDING"
13.1 Dorado grants to Customer the right to "re-brand" and market its
Customer Solution Blades with Dorado's logo within the guidelines
defined in section 13.2.
13.2 Customer agrees to include on all product packaging, product
documentation and product marketing material for Customer Solution
Blades incorporating any portion of the Software Products (or
derivative works thereof) the tag line "Pieces of O". This tag
line shall substantially follow the style "guidelines" (or "look
and feel") as defined by Dorado in Schedule G.
14 MISCELLANEOUS
14.1 TERMINATION: (a) This Agreement shall commence on the Effective
Date and shall continue until terminated in accordance with the
terms hereof. (b) Either party may terminate this Agreement upon
thirty (30) days' written notice to the other party if the other
party commits a material breach of any term hereof and fails to
cure said breach within the 30-day period. Such notice shall set
forth the basis of termination. (c) Upon termination of this
Agreement due to Customer's uncured material breach of Sections
3.1, 3.2 or 3.5, Customer shall immediately cease use of, and
return immediately to Dorado Software, all copies or portions of
copies of the licensed Software Products and Related Materials.
Notwithstanding the foregoing, all licenses granted by Customer to
its customers for use of the Software Products and the derivative
works developed therefrom granted by Customer prior to the date of
termination, and consistent with the terms of this agreement,
shall remain in full force and effect; and, in addition, the
licenses granted to Customer under Sections 3.1, 3.2 and 3.5 above
shall continue to the extent reasonably necessary for Customer to
support its customers' use of the Software Products and their
derivative works.
14.2 ENTIRE AGREEMENT. This Agreement (together with all of the
attached schedules and any duly executed future SOWs, which are
all incorporated herein by reference) constitute the entire
agreement between the parties with respect to the subject matter
hereof and supersede all prior agreements, oral or written,
relating to the subject matter of this agreement. No amendment,
waiver or modification of any provision of this Agreement will be
effective unless such is in writing and is executed by both
parties hereto. The failure of either party to enforce its rights
under this Agreement at any time for any period shall not be
construed as a waiver of such rights.
14.3 NO ASSIGNMENT. Neither party shall sell, transfer or assign any
right or obligation hereunder without the prior written consent of
the other. Any attempt to do so shall be void and shall result in
termination of this Agreement. Notwithstanding the foregoing, in
the case a party or all or substantially all of its assets are
purchased by or merged into another entity, all rights and
responsibilities under this Agreement shall transfer to the new
controlling entity, provided that, for an assignment by Customer,
the original intent of the resulting Customer Solution Blades
remain materially the same. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of Dorado and Customer.
14.4 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California without regard to its conflict of laws
principles. In any action to enforce this Agreement the prevailing
party will be entitled to recover its costs and reasonable
attorneys' fees.
14.5 SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law, such
provision shall be limited or eliminated to the minimum extent
necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
14.6 RELATIONSHIP OF PARTIES. The parties hereto expressly understand
and agree that each party is an independent contractor in the
performance of each and every part of this Agreement, and is
solely responsible for all of its employees and agents and its
labor costs and expenses arising in connection therewith. Neither
party nor its agents or employees are the representatives of the
other party for any purpose and neither party has the power or
authority as agent, employee or any other capacity to represent,
act for,
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 10
<PAGE> 12
bind or otherwise create or assume any obligation on behalf of the
other party for any purpose whatsoever.
14.7 NOTICES. Notices under this Agreement shall be sufficient and
deemed effective upon receipt only if personally delivered,
delivered by a major commercial rapid delivery courier service
with tracing capability or mailed, postage or charges prepaid, by
certified or registered mail, return receipt requested, to a party
at its address set forth on the first page above or as amended by
notice pursuant to this Section 14.7. If not received sooner,
notice by mail shall be deemed received five (5) days after
deposit in the U.S. mails.
14.8 HEADINGS. Headings and captions are for convenience only and are
not to be used in the interpretation of this Agreement.
14.9 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but both of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, each party has executed this Agreement by a duly authorized
representative. The parties acknowledge that they have read, understood and
agreed to the terms of this Agreement.
DORADO SOFTWARE ACCELERATED NETWORKS, INC.
By: /s/ Tim Sebring By: /s/ Ronald L. Hughes
Name: Tim Sebring Name: Ronald L. Hughes
Title: President & CEO Title: Director of Contracts
6/30/00
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 11
<PAGE> 13
SCHEDULE A: DORADO SOFTWARE PRODUCTS
o OWARE(TM) 2.X - THE SOLUTION CREATION ENVIRONMENT
An integrated development environment for developing distributed networked
applications. Oware, provides capabilities to create and execute distributed
networked applications.
o REDCELL(TM) SERVICE ASSURANCE CENTER (SAC) 2.X
An application, built with Oware technology which includes network fault and
service level management, system configuration, reporting, and inventory and
device management capabilities.
o REDCELL(TM) SERVICE PROVISIONING CENTER (SPC) 1.X
An application, built with Oware technology which includes configuration
management and provisioning of service (OSI Level 1/2) capabilities.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 12
<PAGE> 14
SCHEDULE B: STATEMENT OF WORK
(DORADO PROFESSIONAL SERVICES DELIVERABLES)
[***]
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 13
<PAGE> 15
[***]
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 14
<PAGE> 16
SCHEDULE C: FINANCIALS & BUSINESS ARRANGEMENTS
[***]
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 15
<PAGE> 17
[***]
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 16
<PAGE> 18
SCHEDULE D:
DORADO SOFTWARE, INC.
SOFTWARE PRODUCT MAINTENANCE AND SUPPORT AGREEMENT
The parties to this Agreement ("Agreement"), dated July 1, 2000 Dorado Software
Inc. ("Dorado") whose principal place of business is 5176 Hillsdale Circle, El
Dorado Hills, CA. and; ACCELERATED NETWORKS ("CUSTOMER"), having its principal
offices at 301 Science Drive, Moorpark, CA 93021, agree as follows:
1.0 DEFINITIONS:
1.1 SEVERITY level "High" Problem means the Customer is experiencing a
serious problem with the product, which renders the product
un-usable and is causing significant performance degradation. Upon
occurrence of a problem of this severity, all available resources
are applied to resolve the problem during business hours.
1.2 SEVERITY level "Medium" Problem means that the Customer requires
technical advise or a solution, a workaround is available, and
there is some operational impact.
1.3 SEVERITY level "Low" Problem means that Customer requires
Technical Assistance as needed. The problem is a minor
non-disruptive error or function that has little or no operational
impact.
1.4 Response Time refers to the timeframe within which Dorado must
contact Customer once a problem has been notified.
1.5 Problem Resolution Time refers to the timeframe required to
resolve a problem fully or to develop a temporary work-around
followed by a durable solution.
1.6 "Error" means any material problem caused by an incorrect
operation of the computer code in the Software Products or an
incorrect statement or diagram in Related Materials that produces
incorrect results.
1.7 "Oware" is Dorado's software product for creating, executing and
managing distributed business applications.
1.8 "RedCell Service Assurance Center" (SAC) is a Dorado Solution
Blade, built with Oware for managing of Service-level Agreements,
Network Faults and Customer information. It consists of business
class definitions, business rules, events and GUI screens, created
with Oware technology.
1.9 "RedCell Service Provisioning Center" (SPC) is a Dorado Software
Solution Blade, built with Oware for provisioning services
(primarily Level 1 & Level 2 services in the OSI definition of
services). It consists of business class definitions, business
rules, events and GUI screens, created with Oware technology.
1.10 "Software Products" means the Dorado Software proprietary computer
software set forth in Schedule A including but not limited to
Oware (in Object Code) and the Source Code to RedCell SAC &
RedCell SPC and Related Materials, and Customer Solution Blades as
set forth in Section 2 herein.
1.11 "Product Transfer Date" means the contract date to be used for the
determination of warranty periods, any acceptance periods, or any
other event which is controlled by an agreed to start date. This
date shall coincide with the date the any Software Product is
received by Customer.
1.12 "Customer Solution Blade" means any Customer proprietary computer
software (in Source Code, or Object Code) and Related Materials
developed with or incorporating the Software Products (or portions
thereof) or any derivative works of the Software Products (or
portions thereof), [***].
2.0 SOFTWARE PRODUCTS SUPPORT AND MAINTENANCE FEES:
The annual support and maintenance fees for the Software Products as set forth
in this Schedule and depending on the level of support elected by Customer, are
as follows:
Selected Level [X]
-----
Support Level 1: Software Maint. and Normal Business Day Support: [***]
annually
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 17
<PAGE> 19
Selected Level _______
Support Level 2: Software Maintenance and 24x7 Support: $ __________
Software Products covered under this Schedule include:
o Oware(TM)
o RedCell(TM)SAC
o RedCell(TM)SPC
o Customer Solution Blades (as long as Dorado has primary development
responsibility of a particular Customer Solution Blade and, to the extent that
any Customer Solution Blade incorporates Software Products, such incorporated
Software Products)
3.0 Support and Maintenance
3.1 Dorado Software will provide full support and maintenance for
Software Products and Related Materials specified in Paragraph
2.0, as long as the annual maintenance fees specified in Paragraph
2.0 have been paid, and Customer is current on all license fees
and all other moneys owed to Dorado Software.
3.2 SERVICE COMMENCEMENT DATE: Is defined as the Date of Delivery by
Dorado to Customer of Software Products for Software Products and
Acceptance of Customer Solution Blade by Customer for Customer
Solution Blade.
3.3 Support Level 1 (Standard Support)
3.3.1 Standard software maintenance charges are computed at the
rates specified in Paragraph 2.0. Service under this
Agreement shall commence on the date designated by the
Customer in Paragraph 3.2(c) herein. This date becomes the
annual renewal date. Service charges for subsequent or
additional copies of the Software Products as specified in
Paragraph 2.0 are due at time of Product Transfer Date and
will be calculated on a pro-rata basis to coincide with the
annual renewal date.
3.3.2 Any additional Software Products not specified in Paragraph
2.0 can be added to this Agreement by issuance of the
appropriate purchase document with reference to this
Agreement plus a statement on the purchase document that
the products being added are not on the original contract.
The parties will amend this Agreement in a duly executed
writing to include the new product or services. Upon
receipt of a purchase order so designated, Dorado may
accept the purchase order by issuing an invoice at the then
current prices. Upon Customer's acceptance of such prices,
such purchase order and invoice shall constitute a valid
amendment to this agreement. To the extent that the terms
and conditions of either the Customer purchase order or the
Dorado invoice conflict with the terms and conditions of
this Agreement, the terms and conditions of this Agreement
will prevail.
3.3.3 Support for Software Products and Related Materials shall
only be provided on the most current version and last major
version of the Software Products and shall include release
updates, program maintenance, and reasonable telephone
support as set forth herein. Dorado will support a previous
major release of the Software Products for no more than
[***] from the release date of new Software Product
releases. Patch releases and customer specific releases
will be supported for a period of [***].
3.3.4 Telephone consultation services are available during normal
business hours, where "normal business hours" are from 8:30
am. to 5:30 p.m. Monday through Friday, Pacific Coast Time,
excluding federal holidays.
3.3.5 Problem Resolution - Dorado will use its best efforts to
resolve problems with the Software Products based on the
severity of the failure and the priority of resolving the
problems as mutually agreed to by Customer and Dorado. The
following matrix(s) shall apply:
----------------------------------------------------------
SEVERITY TIME-TO-RESOLUTION COMMENTS
----------------------------------------------------------
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 18
<PAGE> 20
----------------------------------------------------------
SEVERITY TIME-TO-RESOLUTION COMMENTS
----------------------------------------------------------
High Problem fixed in [***] To resolve a problem
of this severity,
Dorado will use its
best efforts and all
available resources
will be applied
during business
hours to resolve the
problem as long as
it is classified as
High.
----------------------------------------------------------
Medium Problem fixed in [***] Dorado will use
commercially
reasonable efforts
to solve the problem
as soon as possible.
----------------------------------------------------------
Low Problem fixed in next Resolved in next
major release of the major release of the
product. product.
----------------------------------------------------------
3.4 Support Level 2 (24x7 Support) (optional)
3.4.1 Should Customer elect to pay for Support Level 2, in
addition to the support provided in the Support Level 1
option, Dorado will provide (24x7) support for so long as
Customer pays the 24x7 support and maintenance fee. Dorado
will provide Customer with support and maintenance as
follows:
3.4.2 Dorado will make available a Technical Assistance Center
(TAC) engineer via pager on a 24x7 basis. Upon notification
that a Software Product has failed or malfunctioned, Dorado
will respond to the Customer within [***] of the
notification.
3.4.3 Once Dorado has responded, the following table will guide
the escalation process for resolving the problem based upon
the severity level. The Customer determines the severity
level to be assigned to each problem.
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------
Severity Time Frame Dorado Technical Level Dorado Management Level
----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
High [***] Level 3 Eng Dir. Customer Support
----------------------------------------------------------------------------------------------
[***] Action plan/Conf Call with Dir CustSupport, Eng. Mgr.
Customer
----------------------------------------------------------------------------------------------
Medium [***] TAC Eng Dir. Cust.Support, Eng. Mgr.
----------------------------------------------------------------------------------------------
Low [***] TAC Eng Dir. Cust. Support, Eng. Mgr.
----------------------------------------------------------------------------------------------
</TABLE>
3.4.4 Problem Resolution - Dorado will use its best efforts to
resolve problems with the Software Products based on the
severity of the failure as determined by Customer and the
priority of resolving the problems as mutually agreed to by
Customer and Dorado. The following matrix shall apply:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------
SEVERITY ESCALATION TIME-TO-RESOLUTION COMMENTS
TIME-FRAMES
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
High See table above Workaround in-place To resolve a problem of this
within [***]; Problem severity, all available resources
fixed in [***] will be applied to resolve the
problem as long as it is classified
as High
--------------------------------------------------------------------------------------------------
Medium See table above Workaround or solution To resolve a problem of this
in place within [***]. severity, resources will be applied to
Problem fixed in [***] resolve the problem as long as
it is classified as Medium
--------------------------------------------------------------------------------------------------
Low See table above Problem fixed in next Resolved in next major release of
major release of the the product.
product.
--------------------------------------------------------------------------------------------------
</TABLE>
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 19
<PAGE> 21
3.5 Dorado agrees to pay for normal business expenses related to
providing support services covered under this agreement.
3.6 The Customer agrees to pay expenses for actions initiated by
Customer that are beyond the scope of Dorado obligations under
this agreement or are for the convenience of Customer.
3.7 Subject to Customer's approval prior to the provision of on-site
services, Customer agrees to pay then-current time and material
charges for on-site service to support the Software Products.
4.0 CHARGES AND PAYMENTS:
4.1 Customer agrees not to withhold payments from Dorado due to any
provision in this Agreement, except in the event of Dorado's
breach of the Agreement or as otherwise specifically allowed
herein.
4.2 Customer agrees to make all payments to Dorado under this
Agreement within thirty (30) days upon receipt of an invoice from
Dorado.
4.3 Customer agrees to pay a monthly late payment charge computed at
the rate of [***], or the maximum late charge permitted by
applicable law, whichever is less, on any unpaid amount that is
not in dispute for each calendar month (or fraction thereof) that
such payment is overdue.
4.4 In the event Dorado must institute legal proceedings to collect
any amounts legally due hereunder, Customer agrees to pay the
costs of any collection or restitution, including reasonable
attorneys fees.
4.5 If Customer is past due by sixty (60) days or more on any amount
owed hereunder, Dorado may suspend its provision of maintenance
and support services until such amount (including late payment
charges as set forth in Section 4.4) is received by Dorado. Dorado
may, by written notice to Customer ninety (90) days prior to the
anniversary day, increase or decrease the annual maintenance fees
set forth in Section 2.0. Any increase in the amount of an annual
maintenance fee shall not exceed [***] of the previous year's fee.
5.0 TAXES: Customer agrees to pay any taxes or similar charges imposed by
federal, state, municipal, or other governmental entities on charges
under this Agreement on the Software Products, Related Materials and
services furnished hereunder or their use. Notwithstanding the foregoing,
Dorado shall be responsible for payment of all taxes on its net income
relating to this agreement.
6.0 MISCELLANEOUS
6.1 Term and Termination. This Agreement is effective as of the date
it is executed by the party last to sign, and subject to the terms
hereof, remains in force until terminated. Customer may by thirty
(30) days prior written notice terminate its maintenance service,
releasing Dorado from the terms and conditions under Paragraphs
3.1 through 3.8, while retaining the right to use the Software
Products, provided the licenses for such Software Products remain
in effect.
6.2 Force Majeure. Should either party be unable to perform any
obligation required of it under this Agreement other than the
payment of money, because of any cause beyond its control
(including, but not limited to war, insurrection, riot civil
commotion, shortages, strike, lockout fire, earthquake, calamity,
windstorm, flood, material shortages, failure of any suppliers,
freight handlers, transportation vendors or like activities, or
any other force majeure), then such party's performance of any
such obligation shall be suspended for such period as the party is
unable to perform such obligation.
6.3 Entire Agreement. The provisions herein constitute the entire
agreement between the parties with respect to the subject matter
hereof and supersede all prior agreements, oral or written,
relating to the subject matter of this agreement. No amendment,
waiver or modification of any provision of this Agreement will be
effective unless such is in writing and is executed by both
parties hereto. The failure of either party to enforce its rights
under this Agreement at any time for any period shall not be
construed as a waiver of such rights.
6.4 Assignment. Neither party shall sell, transfer or assign any right
or obligation hereunder without the prior written consent of the
other. Any attempt to do so shall be void and shall result in
termination of this Agreement. Notwithstanding the foregoing, in
the case a party or substantially all of its assets are purchased
by or merged into another entity, all rights and responsibilities
under this Agreement shall transfer to the new controlling entity.
Subject to the foregoing, this Agreement shall inure to the
benefit of and be binding upon the respective successors and
assigns of Dorado and Customer.
6.5 Governing Law. The validity and performance of this Agreement
shall be governed by the laws of the State of California without
regard to its conflict of laws principles.
-------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 20
<PAGE> 22
6.6 Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law, such
provision shall be limited or eliminated to the minimum extent
necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
6.7 Attorney's Fees. The parties agree that if either party has to
bring a lawsuit to enforce the terms of this agreement, the
prevailing party shall be entitled to reasonable attorney's fees
and costs
IN WITNESS WHEREOF, each party has executed this Agreement by a duly authorized
representative. The parties acknowledge that they have read, understood and
agreed to the terms of this Agreement.
DORADO SOFTWARE, INC. ACCELERATED NETWORKS, INC.
By:/s/ Tim Sebring By: Ronald L. Hughes
Name: Tim Sebring Name: Ronald L. Hughes
Title: President & CEO Title: Director of Contracts
6/30/00
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 21
<PAGE> 23
SCHEDULE E
[***]
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 22
<PAGE> 24
[***]
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 23
<PAGE> 25
[***]
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 24
<PAGE> 26
[***]
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 25
<PAGE> 27
[***]
---------------------
***Confidential treatment has been requested for certain redacted provisions of
this agreement. The redacted provisions are identified by three asterisks
enclosed by brackets and underlined. The confidential portion has been filed
separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 26
<PAGE> 28
SCHEDULE F
SOFTWARE ESCROW AGREEMENT
Account Number ______________________
This Software Escrow Agreement (the "Agreement") is made as of date of
the last dated signature (the "Effective Date"), by and among DSI TECHNOLOGY
ESCROW SERVICES, INC. ("DSI"), ACCELERATED NETWORKS, having its principal
offices at 301 Science Drive, Moorpark, CA 93021, ("Beneficiary"), and DORADO
SOFTWARE, INC., 5176 Hillsdale Circle, El Dorado Hills, California 95762
("Depositor").
WHEREAS Beneficiary and Depositor have entered into the miniOSS
Distribution Agreement (the "OSS Agreement") pursuant to which Depositor is to
license certain software to Beneficiary; and
WHEREAS the OSS Agreement provides that Beneficiary and Depositor will
enter into a source code escrow agreement among themselves and an escrow agent
which provides for Depositor to deposit with, and which enables Beneficiary to
obtain from, the escrow agent certain software source code and documentation
solely for the purposes specified in the OSS Agreement;
WHEREAS Depositor and Beneficiary desire to establish an escrow with DSI
to provide for the retention, administration and controlled access of the
deposited materials.
WHEREAS The parties desire this Agreement to be supplementary to the OSS
Agreement pursuant to Title 11, United States [Bankruptcy] Code, Section 365(n).
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and in consideration of the promises,
mutual covenants and conditions contained herein, the parties agree as follows:
ARTICLE 1 -- DEFINITIONS
Capitalized terms not otherwise defined herein shall have the meaning set
forth in the OSS Agreement. The following definitions shall apply to the terms
set forth in this Escrow Agreement:
1.1 "Deposit Materials" means one copy of the full source code from which
each of the Software Products and Customer Solution Blades was compiled on disk
or magnetic tape media, and all technical documentation required to allow a
reasonably skilled third party software developer to compile, understand,
prepare, replace, maintain, modify and enhance the Software Products and
Customer Solution Blades.
ARTICLE 2 -- DEPOSITS
2.1 Obligation to Make Deposit. Within ten (10) days of the Effective
Date, Depositor shall deliver the Deposit Materials to DSI.
2.2 Depositor's Representations. Depositor represents as follows:
2.2.1 Depositor lawfully possesses all of the Deposit Materials
deposited with DSI;
2.2.2 With respect to all of the Deposit Materials, Depositor has
the right and authority to grant to DSI and Beneficiary the
rights as provided in this Agreement;
2.2.3 The Deposit Materials are not subject to any lien or other
encumbrance;
2.2.4 The materials actually deposited will meet the definition
of Deposit Materials; and
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 27
<PAGE> 29
2.2.5 The Deposit Materials are readable and useable in their
current form.
2.3 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
Appendix A to this Agreement by listing each such tangible media by the item
label description, the type of media and the quantity. The Appendix A 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 3.2 below.
2.4 Acceptance of Deposit. When DSI receives the deposit materials and
Appendix A, 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 Appendix A. At the completion of the deposit
inspection, if DSI determines that the labeling of the tangible media matches
the item descriptions and quantity on Appendix A, DSI will date and sign
Appendix A and mail a copy thereof to Depositor and Beneficiary. If DSI
determines that the labeling does not match the item descriptions or quantity on
Appendix A, DSI will (i) note the discrepancies in writing on Appendix A, (ii)
date and sign Appendix A with the exceptions noted, and (iii) provide a copy of
Appendix A to Depositor and Beneficiary. DSI's acceptance of the deposit occurs
upon the signing of Appendix A by DSI.
2.5 Verification and Testing of Deposit Materials by Beneficiary.
Beneficiary shall have the right to appoint at its expense an independent,
professional computer-programming consultant mutually agreeable to Beneficiary
and Depositor to inspect, compile, test, and review the Deposit Materials
(subject to appropriate undertakings of confidentiality and restrictions on
subsequent use or disclosure) at any time, and DSI shall permit such inspections
and testing promptly upon written request. Such inspections and testing shall be
conducted at a mutually agreed upon location. If and only if such professional
determines that the deposited Deposit Materials are incorrect or incomplete,
then Depositor shall reimburse Beneficiary for the professional's reasonable
fees and expenses and shall correct such errors or omissions in the Deposit
Materials within fifteen (15) days after notification of such errors or
omissions. Depositor shall have the option to rebut or confirm the
professional's determination.
2.6 Deposit Updates. Unless otherwise provided by the OSS Agreement,
Depositor shall update the Deposit Materials within 60 days of release of each
Revision or New Version of the Software Products and Customer Solution Blade
which is the subject of the OSS Agreement ("Deposit Updates"). Such Deposit
Updates will be added to the existing deposit. All Deposit Updates shall be
listed on a new Appendix A and the new Appendix A shall be signed by Depositor.
Each Appendix A will be held and maintained separately within the escrow
account. An independent record will be created which will document the activity
for each Appendix A. The processing of all Deposit Updates shall be in
accordance with Sections 2.3 and 2.4 above. All references in this Agreement to
the Deposit Materials shall include the initial Deposit Materials and any
Deposit Updates.
2.7 Removal of Deposit Materials. The Deposit Materials may be removed
and/or exchanged only on written instructions signed by Depositor and
Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 3 -- CONFIDENTIALITY AND RECORD KEEPING
3.1 Confidentiality. DSI shall maintain the Deposit Materials in a
secure, environmentally safe, locked facility which 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
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 28
<PAGE> 30
immediately notify the parties to this Agreement. It shall be the
responsibility of Depositor and/or 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.
3.2 Status Reports. DSI will issue to Depositor and 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.
3.3 Audit Rights. Depositor and Beneficiary shall be entitled at
reasonable times during normal business hours and upon reasonable notice to the
DSI during the term of this Escrow Agreement to inspect the records of DSI with
respect to the Deposit Materials. Depositor and Beneficiary shall be entitled
upon reasonable notice to the DSI and during normal business hours to inspect
the facilities of the DSI with respect to the physical status and condition of
the Deposit Materials.
ARTICLE 4 -- GRANT OF RIGHTS TO DSI
4.1 Title to Media. Depositor hereby transfers to DSI the title to the
media upon which the Deposit Materials are written or stored. However, this
transfer does not include the ownership of the proprietary information and
materials contained on the media such as any copyright, trade secret, patent or
other intellectual property rights.
4.2 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.
4.3 Right to Transfer Upon Release. Depositor hereby grants to DSI the
right to transfer the Deposit Materials to Beneficiary upon any release of the
Deposit Materials for use by Beneficiary in accordance with Article 5. Except
upon such a release or as otherwise provided in this Agreement, DSI shall not
transfer the Deposit Materials.
ARTICLE 5 -- RELEASE OF DEPOSIT
5.1 Release Events. As used in this Agreement, "Release Event" shall
mean any of the following:
5.1.1 Depositor's failure to carry out obligations imposed on it
pursuant to the OSS Agreement or this Escrow Agreement and
fails to cure such breach within thirty (30) days of
receiving written notice of the breach from Beneficiary;
5.1.2 Depositor becomes insolvent or becomes the subject of a
voluntary or involuntary petition in bankruptcy or any
proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors,
which proceeding is not dismissed within sixty (60) days;
or
5.1.3 Depositor's failure to continue to do business in the
ordinary course.
5.2 Occurrence of Release Event. Upon the occurrence of one or more of
the Release Events, Beneficiary may give written notice to the DSI of the
occurrence of any such Release Event (a "Release Notice"), which notice will (i)
specify the nature of any such Release Event, and (ii) instruct DSI to deliver
the Deposit Materials to Beneficiary at a time specified by Beneficiary (but not
earlier than ten
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 29
<PAGE> 31
(10) working days after the Release Notice is sent by DSI to Depositor). Upon
receipt of a Release Notice, DSI shall immediately transmit a copy of the
Release Notice to Depositor by certified mail, return receipt requested, or by
commercial express mail. If, within ten (10) working days after DSI transmits
the Release Notice to Depositor, Depositor fails to notify DSI in writing that
Depositor disputes the Release Notice, DSI shall immediately deliver the Deposit
Materials to Beneficiary in accordance with the instructions of Beneficiary
contained in such Release Notice.
5.3 Dispute of Occurrence of Release Event. If Depositor disputes
Beneficiary's Release Notice, then within ten (10) working days of the date DSI
sent the Release Notice, Depositor must file concurrently with DSI and
Beneficiary a written notice executed by an authorized representative of
Depositor stating that no Release Event has occurred or that the Release Event
no longer exists, and specifying the facts in support of its position. If
Depositor fails to file such a written notice, then the DSI shall deliver the
Deposit Materials to Beneficiary in accordance with the instructions of
Beneficiary. If Depositor files a written notice disputing Beneficiary's claim
that a Release Event has occurred, then the DSI shall not deliver the Deposit
Materials to either Beneficiary or Depositor until directed to do so by
Depositor and Beneficiary jointly or by an arbitrator, or until the DSI receives
from Beneficiary a certified copy of a final order of an arbitrator or a court
of competent jurisdiction determining that a Release Event has occurred
entitling Beneficiary to receive delivery of the Deposit Materials.
5.4 Grant of License upon Release of Deposit Materials. Upon release of
the Deposit Materials in accordance with this Article 5, Beneficiary is granted
a fully-paid, royalty free, personal, non-exclusive and non-transferable (except
as set forth in Section 10.7) license to reproduce, modify and otherwise use the
Deposit Materials to maintain and support the Dorado Software Products and
Customer Solution Blades. Beneficiary shall be obligated to maintain the
confidentiality of the released Deposit Materials.
ARTICLE 6 -- ARBITRATION
6.1 Arbitration of Dispute over Occurrence of Release Event
6.1.1 Arbitration Procedure. If (i) Beneficiary receives a written
notice from Depositor stating that no Release Event has occurred or that
the Release Event no longer exists, and if Beneficiary desires to obtain
a release of the Deposit Materials as a result of the Release Event(s) in
dispute, or (ii) the DSI receives a Release Notice and the DSI is
uncertain whether the Release Notice was timely or otherwise effective,
Beneficiary or DSI shall file a demand for binding arbitration with the
American Arbitration Association ("AAA") in Santa Clara County. Any such
arbitration shall take place in Santa Clara County and be conducted by a
single arbitrator according to the then current Commercial Rules of the
AAA. Judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. 6.1.2 Scope of Arbitration. The
sole issue to be decided in an arbitration over the occurrence of a
Release Event shall be whether a Release Event existed at the time
Beneficiary gave notice to the DSI of such Release Event. The decision of
the arbitrator shall be in writing and made within thirty (30) days
following the conclusion of any evidentiary hearing. The arbitrator shall
have no power or authority to modify the agreements of the parties. The
arbitrator shall have no authority to award damages or to enter any form
of injunctive relief.
6.1.2 Scope of Arbitration. The sole issue to be decided in an
arbitration over the occurrence of a Release Event shall be whether a
Release Event existed at the time Beneficiary gave notice to the DSI of
such Release Event. The decision of the arbitrator shall be in writing
and made within thirty (30) days following the conclusion of any
evidentiary hearing. The arbitrator shall have no power or authority to
modify the agreements of the parties. The arbitrator shall have no
authority to award damages or to enter any form of injunctive relief.
6.1.3 Arbitration Expenses. If the arbitrator determines that a
Release Event existed at the time Beneficiary gave notice to DSI of such
Release Event and such Release Event still existed at the time of
Depositor's filing of a written notice disputing the existence of such
Release Event, Depositor shall pay all fees and costs incurred in
connection with such arbitration. If the arbitrator determines that a
Release Event did not exist at the time Beneficiary gave a Release Notice
to DSI of such Release Event, Beneficiary shall pay all fees and costs
incurred in connection with such arbitration. Such fees and costs may
include, without limitation, the
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 30
<PAGE> 32
reasonable attorney's fees and costs incurred by the prevailing party and
DSI's fees (if any) in connection with the arbitration proceeding.
6.2 Arbitration of Other Disputes. Any other dispute relating to or
arising from this Agreement shall be resolved by arbitration (separate from any
arbitration over the occurrence of a Release Event) under the then current
Commercial Rules of the AAA. The arbitration shall take place in Santa Clara
County, California. 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 not represented, to the party at the last
known business address. The prevailing party(ies) shall be entitled to an award
of costs and reasonable attorneys' fees.
6.3 Notice of Requested Order. If any party intends to obtain an order
from the arbitrator or any court of competent jurisdiction which may direct DSI
to take, or refrain from taking any action, that party shall (i) give DSI at
least two business days' prior notice of the hearing, (ii) 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 (iii) 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
duties.
ARTICLE 7 -- TERM AND TERMINATION
7.1 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 (i) Depositor and Beneficiary jointly instruct DSI in
writing that the Agreement is terminated; or (ii) the Agreement is terminated by
DSI for nonpayment in accordance with Section 7.2. 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.
7.2 Termination for Nonpayment. In the event of the nonpayment of fees
owed to DSI, DSI shall provide written notice of delinquency to all parties to
this Agreement. Any party to this Agreement 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 (1) month of the date of such notice, then DSI shall have
the right to terminate this Agreement at any time thereafter by sending written
notice of termination to all parties. DSI shall have no obligation to take any
action under this Agreement so long as any payment due to DSI remains unpaid.
7.3 Disposition of Deposit Materials Upon Termination. Upon termination
of this Agreement by joint instruction of Depositor and Beneficiary, DSI shall
destroy, return, or otherwise deliver the Deposit Materials in accordance with
Depositor's instructions. Upon termination for nonpayment, 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.
7.4 Survival of Terms Following Termination. Upon termination of this
Agreement, the following provisions of this Agreement shall survive: Section 2.2
("Depositor's Representations"), Section 3.1 ("Confidentiality"), Section 4.3
("Right to Transfer Upon Release"), Section 5.4 ("Right to Use Following
Release" if a release of the Deposit Materials has occurred prior to
termination), Article 8 ("DSI Fees") and any provisions in this Agreement which
specifically state they survive the termination or expiration of this Agreement.
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 31
<PAGE> 33
ARTICLE 8 -- DSI FEES
8.1 Fee Schedule. DSI is entitled to be paid its standard fees and
expenses applicable to the services provided. Beneficiary shall be responsible
for payment of DSI's fees. DSI shall notify Beneficiary 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.
8.2 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 7.2. 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 9 -- LIABILITY
9.1 Right to Rely on Instructions. DSI may act in reliance upon any
instruction, instrument, 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.
9.2 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. Depositor and 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 Agreement provided that (i)
DSI has acted in the manner stated in the preceding sentence, (ii) DSI promptly
gives Depositor and Beneficiary notice of any such claim or action; (iii)
Depositor and Beneficiary shall have joint authority to select defense counsel
and to control the defense and settlement of such claim; and (iv) DSI cooperates
as reasonably requested in such defense.
ARTICLE 10 -- GENERAL PROVISIONS
10.1 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.
10.2 Supplementary Agreement. The parties agree and acknowledge that this
Escrow Agreement is, and is intended to be, supplementary to the license
contained in the OSS Agreement, as the term "supplementary" is used in 11
U.S.C.ss. 365(n).
10.3 Entire Agreement. This Agreement embodies the entire understanding
among 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 OSS Agreement between Depositor and Beneficiary and has no
knowledge of any of the terms or provisions of any such OSS Agreement. DSI's
only obligations to Depositor or Beneficiary are as set forth in this Agreement.
No amendment or modification of this Agreement shall be valid or binding unless
signed by all the parties hereto, except that the Beneficiary need not sign
Appendix A.
10.4 Waiver. The failure of any party hereto to require performance by
another party of any provision hereof shall not affect the full right to require
such performance at any time thereafter nor shall the waiver of any party of a
breach of any provision hereof by any other party be taken or held to be a
waiver of the provision itself.
10.5 Notices. Any notice required or permitted to be given by either
party under this Agreement shall be in writing and shall be sent by express
carrier to the other party at the address first set
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 32
<PAGE> 34
forth below, or such new address and attention as may from time to time be
supplied hereunder by the parties hereto.
IF TO DORADO SOFTWARE: IF TO ACCELERATED NETWORKS:
Dorado Software, Inc. Accelerated Networks, Inc.
5176 Hillsdale Circle 301 Science Drive
Dorado Hills, CA 95762 Moorpark, CA 93021
Attention: President Attention: President
IF TO DSI:
DSI Technology Escrow Services, Inc.
9265 Sky Park Court, Suite 202
San Diego, CA 92123
Attention: Legal Department
10.6 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.
10.7 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 Beneficiary unless DSI receives clear, authoritative and
conclusive written evidence of the change of parties.
10.8 Counterparts. This Escrow Agreement may be executed in counterparts
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Depositor, Beneficiary and DSI hereby execute this
Software Escrow Agreement as of the date first above mentioned.
ACCELERATED NETWORKS, INC. DORADO SOFTWARE, INC.
By: By:
------------------------------- ------------------------------------
Name: Name:
----------------------------- ----------------------------------
Title: Title:
---------------------------- ---------------------------------
Date: Date:
----------------------------- ----------------------------------
DSI TECHNOLOGY ESCROW SERVICES, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 33
<PAGE> 35
APPENDIX A (NO. )
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 ______________________
Description
--------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Operating System
----------------------------------------------------------------
Hardware Platform
----------------------------------------------------------------
----------------------------------------------------------------
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 34
<PAGE> 36
[DORADO LOGO]
DEPOSIT COPYING INFORMATION:
Hardware required:
--------------------------------------------------------------
Software required:
--------------------------------------------------------------
I certify for DEPOSITOR that the above DSI has inspected and accepted
described Deposit Materials have been the above materials (any
transmitted to DSI. exceptions are noted above).
Signature Signature
---------------------------- ------------------------
Print Name Print Name
---------------------------- ------------------------
Date Date Accepted
---------------------------- ---------------------
Appendix A No.
-------------------
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 35
<PAGE> 37
[DORADO LOGO]
SCHEDULE G
BRANDING SPECIFICATIONS
OWARE BRANDING PROGRAM
In the Dorado Partner Program, the Pieces of O logo should be placed on all
product literature, including user manuals, training guides, datasheets, CDs and
product packaging for those Customer Solution Blades incorporating any portion
of the Software Products (or derivative works thereof).
PREFERRED PLACEMENT OF LOGO
User manuals, training guides, and product packaging
- Lower left-hand corner of front or back cover
- Preferably on the front cover whenever possible
- The logo should also appear on the title page within any product
documentation.
- Placement is the lower left-hand corner
Software CDs
- Left-hand side of the CD is preferable
Splash screens
- Lower, left-hand corner of splash screen
MINIMUM SIZES
Printed documentation size 3/4"x3/4"
Screen size 12 picas in width
CD artwork size 1/2"x1/2"
LOGOS
preferred logo
pieces of 0
use of logo in reverse
pieces of 0
Please contact Dorado if you have questions or if these specifications are
problematic with your design(s).
--------------------------------------------------------------------------------
Dorado Software, Inc. miniOSS Distribution Agreement Page 36
