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Exhibit 10.27
PRELIMINARY UNSUPPORTED SOFTWARE LICENSE AGREEMENT
This Agreement is made as of August 7th, 2000 between Fujitsu Siemens
Computers GmbH, a German company with offices at Otto Hahn Ring 6 81730 Munich,
Germany (hereinafter called "FSC") and Unisphere Solutions Inc., a Delaware
corporation having offices at One Executive Drive, Chelmsford,MA 01824
(hereinafter called "USI").
WHEREAS, USI wishes to have access to the source code ("Source Code")
for the RTP Software as described in technical specifications document entitled
"Source List RTP Version 1.0C" (the "Software") for the purpose specified in
Section 1.a.
NOW, THEREFORE, FSC and USI agree as follows:
1. LICENSE
a. FSC hereby grants USI a preliminary, fully paid and royalty free,
nonexclusive, nontransferable license, without right to
sublicense, to use, process, and reproduce copies of the Source
Code solely for the limited purpose of permitting USI to evaluate
the Software for an eventual development of certain hardware and
software products.
b. USI is not licensed to redistribute copies of the Source Code to
any third party.
c. The Source Code is provided as is and USI has full responsibility
for its installation, support and maintenance. FSC provides no
support or maintenance of this Source Code. USI will provide FSC
with information regarding any problems which occur during USI's
use, without expecting a response or correction of the problem
from FSC.
d. FSC will not be obligated in any way to provide updates to the
Source Code or any documentation or information regarding this
item.
e. FSC MAY, BUT IS NOT OBLIGATED TO, PROVIDE NEW VERSIONS OF THE
SOURCE CODE AD HOC WITHOUT ANY OBLIGATION WHATSOEVER TO PROVIDE
ADDITIONAL OR REGULAR UPDATES OR TO PROVIDE SUPPORT OF ANY KIND
FOR THE NEW VERSION, CONSISTENT WITH THE TERMS OF THIS AGREEMENT.
2. PROTECTION OF PROPRIETARY RIGHTS
a. USI recognizes that the Source Code (i) is considered by FSC to
be a trade secret, (ii) is furnished by FSC to USI in confidence,
and (iii) contains proprietary and
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confidential information. Title to, ownership of, and all
proprietary rights in the Source Code and all copies thereof are
reserved to and will at all times remain with FSC.
b. USI will hold the Source Code in confidence at least to the same
extent that it protects its own similar confidential information
and will take all reasonable precautions consistent with
generally accepted standards in the data processing industry to
safeguard the confidentiality of the Source Code. USI agrees to
limit the number of copies of the Source Code to the minimum
number of copies required by USI to perform its evaluation
activities in accordance with this Agreement. USI will properly
reproduce on each such copy all notices of FSC's or its
supplier's patent, copyright, trademark or trade secret rights in
such portion or Releases. USI agrees that it will under no
circumstances distribute or disseminate any information contained
in or disclosed by the Source Code, including but not limited to
any technical information, design concepts, processes,
procedures, formulae, or algorithms contrary to the express
provisions of this Agreement.
c. USI will not disclose, furnish, transfer or otherwise make
available any portion of the Source Code to any person except to
those of its employees, agents or contractors whose access is
necessary for USI's use as set forth above. USI will take
appropriate action by instruction or agreement with such
employees, agents or contractors to inform them of the trade
secret, proprietary and confidential nature of the Source Code
and to obtain their compliance with the terms of this Section 2.
USI will be liable for noncompliance by agents and contractors to
the same extent as it would be liable for noncompliance by its
employees.
d. Notwithstanding anything in this Section 2 to the contrary, USI
will have no obligation of confidentiality with respect to any
portion of the Source Code which (i) was known to USI prior to
its receipt from FSC unless covered by a separate Nondisclosure
Agreement, (ii) is lawfully obtained by USI from a third party
under no obligation of confidentiality, (iii) is or becomes
publicly available other than as a result of any act or failure
to act of USI, or (iv) is independently developed by USI without
use of the Source Code.
e. USI agrees to notify FSC promptly in the event of any breach of
its security under conditions in which it would appear that the
trade secrets represented by the Source Code and the ideas
expressed therein were prejudiced or exposed to loss. USI shall,
upon request from FSC, take all other reasonable steps necessary
to recover any compromised trade secrets disclosed to or placed
in the possession of USI by virtue of this Agreement. The cost of
taking such steps shall be borne solely by USI.
f. USI's obligations under this Section 2 will survive the
termination of the license granted hereunder.
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g. USI acknowledges and agrees that the Source Code and all the
information in whatever medium provided to USI in connection
therewith pursuant to the confidentiality provisions of this
Agreement are unique and commercially valuable, and that any
breach by USI of the terms of this Agreement with respect to the
disclosure, distribution of the Source Code or such information
would result in an irreparable and continuing injury to FSC for
which money damages would be inadequate. In the event of such a
breach or anticipated breach by USI, FSC shall be entitled to
seek immediate injunctive relief and to specifically enforce the
terms of this Agreement, in addition to any other remedy to which
FSC may be entitled at law or in equity.
3. USI USE OF SOURCE CODE
a. USI may use the Source Code only as necessary for the purpose
specified in Section 1.a.
b. USI agrees not to use the Source Code for any other purpose
without the prior express written permission of FSC.
4. WARRANTY
a. FSC warrants that it has the right to grant a license to use the
Source Code as contemplated hereunder. FSC makes no warranty with
respect to the Source Code.
b. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 4, FSC MAKES NO
WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO THE SOURCE CODE.
WITHOUT LIMITING THE FOREGOING, FSC MAKES NO WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY
THAT THE SOURCE CODE IS ERROR-FREE OR THAT ITS USE WILL BE
UNINTERRUPTED OR THAT THIRD PARTY RIGHTS ARE NOT INFRINGED.
5. TERM AND TERMINATION
a. This Agreement is determined to be a preliminary license
agreement subject to both parties efforts to conclude a final
License Agreement for the RTP Software until November 30, 2000
at the latest. Therefore this Agreement shall terminate
automatically on September 30th, whether or not such a final
License Agreement has been concluded by the parties. In case no
final License Agreement has been concluded at this time, USI
shall immediately stop using the RTP Software in any way, return
the Source Code of the RTP Software to FSC, destroy all copies or
modifications made from such Source Code and confirm such
destruction by a written document to be signed by the CEO of USI.
The provisions of this Agreement shall survive such termination.
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b. In the event USI is in breach of this Agreement and does not cure
the breach within thirty (30) days of receipt of written notice
of such breach from FSC, FSC shall have the right to terminate
this Agreement for cause. Upon the termination of this Agreement
for cause by FSC:
i. All licenses granted pursuant to Section 1 hereof will cease
and USI will immediately return the Source Code and all
portions thereto, to FSC together with all back-up copies
and modifications thereof. Section 5 a sentences 3 and 4
shall apply accordingly.
ii. USI will purge all copies of the Source Code from all
computer processors or storage media on which USI has
installed or permitted others to install such Source Code.
6. NO ASSIGNMENT
This Agreement may not be assigned by USI without the prior written
consent of FSC.
7. ENTIRE UNDERSTANDING
This Agreement sets forth the entire understanding between the parties
with respect to the matters set forth herein and supersedes all prior
representations, understandings or agreements, whether written or oral,
express or implied, with respect to this transaction.
8. GOVERNING LAW
This Agreement is governed by the laws of the Federal Republic of
Germany, excluding its conflict of laws rules.
9. DISPUTE RESOLUTION
Except as otherwise provided herein, any controversy between the
parties hereto involving the construction or application of any terms,
covenants or conditions of this or any claims arising out of or
relating to this Agreement or the breach thereof shall be settled by
the following procedure:
1. Representatives of each party directly responsible for
the matters underlying the controversy shall meet as
reasonably requested by the other party to resolve the
controversy.
2. If the controversy is not resolved by the
representatives by mutual agreement within twenty
business days after their initial meeting to discuss
the controversy, either party may at any time
thereafter provide the other party written notice
specifying the terms of such controversy in reasonable
detail. Upon receipt of such notice, the appropriate
senior
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executives shall meet at a mutually agreed upon
time and place within twenty business days of receipt
of such notice. They shall discuss the controversy and
negotiate for a period of up to twenty business days in
an effort to resolve the controversy.
3. If a dispute cannot be settled by the procedure of
Subsection 2 above, then such dispute shall be
determined by arbitration in accordance with the
Arbitration Rules of the International Chamber of
Commerce, Paris France. The number of arbitrators shall
be three; the place of arbitration shall be Munich,
Germany; and the language of arbitration shall be
English.
4. Nothing in this Agreement shall prevent any party from
seeking immediate injunctive relief in a court of
appropriate jurisdiction in order to protect its
interests under this Agreement.
USI FSC
By: Dr. Georg Haubs By: /s/ Dr. Barth Kellerer
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Name: /s/ Dr. Georg Haubs Name: B. Kellerer
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Title: VP Business Develop. Title: Director
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