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EXHIBIT 10.15
[AETHER LOGO]
SCOUTWEB(TM) SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS SCOUTWEB(TM) SOFTWARE LICENSE AND SERVICES AGREEMENT (this
"Agreement") is made effective as of July 7, 2000 ("Effective Date") as set
forth below between Aether Software, Inc., a Delaware corporation, with offices
located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Aether"), and
OmniSky Corporation, a Delaware corporation ("Licensee").
SUMMARY PAGE
_________________________________________________________________________________________________________
LICENSEE INFORMATION:
__________________________________________________________________________________________________________
Company Name: OmniSky Corporation Business Contact Information: Technical Contact Information:
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Web address: ▇▇▇.▇▇▇▇▇▇▇.▇▇▇ e-mail: ▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ e-mail: ▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
__________________________________________________________________________________________________________
LICENSEE AGREES TO BUY AND ACCEPT DELIVERY OF THE FOLLOWING:
SOFTWARE PRODUCT(1): UNITS: PER UNIT PRICE: SUBTOTAL:
ScoutWeb(TM) Dual CPU 30 servers $1,350,000.00
MAINTENANCE AND SUPPORT SERVICES FEES:
Annual Fees $ 121,500.00
Maintenance and support begins upon Effective Date and is calculated at 9% of List license fees.
NOTES:
(1) From the Effective Date through June 30, 2003, Licensee is entitled to purchase ScoutWeb Licenses
in excess of the thirty (30) service licenses purchased above at the price of $15,000.00 per license.
Notwithstanding the foregoing, if ScoutWeb is re-engineered to no longer require certain third
party software licenses, the per unit price of additional ScoutWeb licenses, after GA of
re-engineered product, shall be $7,500.00 per license.
__________________________________________________________________________________________________________
TOTAL: $1,471,500.00
__________________________________________________________________________________________________________
PAYMENT TERMS:
Due upon delivery of initial eleven (11) ScoutWeb licenses, but no later than July 15, 2000, net
30 days:
Software: $495,000.00
Annual Maintenance and Support Service fees: $ 44,550.00
Due upon delivery of nineteen (19) ScoutWeb licenses, but no later than October 15, 2000, net
30 days:
Software: $855,000.00
Annual Maintenance and Support Service fees: $ 76,550.00
ALL PAYMENTS ARE IN US DOLLARS AND DO NOT INCLUDE APPLICABLE TAXES OR TARIFFS.
This Summary Page, the attached Terms and Conditions and the attached Exhibits together form the complete
agreement between Aether and the Licensee with respect to the subject matter hereof. Aether and Licensee
agree to be bound by the terms and condition of this Agreement. Prices are valid until July 15, 2000.
__________________________________________________________________________________________________________
AETHER SOFTWARE, INC., a Delaware corporation: OmniSky Corporation, a Delaware corporation:
__________________________________________________________________________________________________________
By: [SIGNATURE ILLEGIBLE] By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
__________________________________________________________________________________________________________
Name/Title: Name/Title: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
__________________________________________________________________________________________________________
Confidential and Proprietary
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TERMS AND CONDITIONS OF
SCOUTWEB SOFTWARE LICENSE AND SERVICES AGREEMENT
1. LICENSE
A. Aether hereby grants to Licensee a perpetual (subject to Section 11),
worldwide, limited, non-exclusive, non-transferable, right and license to use
the computer software components (the "Software") and documentation (the
"Documentation") listed on the Summary Page on the terms and conditions of this
Agreement. All terms and conditions of this Agreement are material terms of the
license granted by this Agreement. Aether will provide Licensee with a single
copy of the Software on machine-readable media. Licensee may use the Software
and Documentation only on the terms set forth on the Summary Page, only for the
conduct of Licensee's own business, or the business of a Subsidiary, and only
to service Licensee's own customers or customers of a Subsidiary accessing
Licensee's services. Licensee may not use the Software or Documentation (i) to
provide services other than Licensee's current consumer service offering
defined as wireless service allowing users to securely access primary e-mail,
extract content from the Internet and corporate intranets, and share schedules
remotely; (ii) as part of a commercial time-sharing or service bureau operation
or (iii) in any other resale capacity apart from Licensee's service, as of the
effective date of this agreement. Licensee may not transfer, rent, lease or
otherwise transfer possession of the Software to a third party. For purposes of
this Agreement the term "Subsidiary" shall include only entities in which
Licensee maintains more than twenty-five percent (25%) ownership interest.
B. Licensee acknowledges and agrees that the Software and Documentation
are owned by, and shall remain the sole property of, Aether, that the Software
and Documentation contain, embody and are based upon patented or patentable
inventions, trade secrets, copyrights and other intellectual property rights
(collectively, "Intellectual Property Rights") owned or controlled by Aether,
and that Aether shall continue to be the sole owner of all Intellectual
Property Rights in and to Software and Documentation including, without
limitation, any derivative works of Software and Documentation produced by
Aether. This Agreement does not convey to Licensee title or ownership of the
Software or Documentation, but only a right of limited use in accordance with
this Agreement. Licensee's agreements with its customers or subscribers shall
be no less protective of Aether's Intellectual Property Rights than the terms
contained herein. Licensee shall not remove, replace or obscure Aether's marks
or proprietary notices contained in or displayed by the Software.
C. Notwithstanding anything to the contrary in this Agreement, Licensee
may not use the Software in any high risk environment, including without
limitation: (i) online air traffic or aircraft navigation control; (ii) the
design, construction, operation, or maintenance of any nuclear facility; (iii)
life support systems; or (iv) the design, construction, operation, or
production of weapons or weapon systems.
D. Aether reserves all rights not expressly granted under this Agreement.
2. LICENSE AND MAINTENANCE FEES
A. As compensation for the license and the maintenance and support
services provided under this Agreement, Licensee will pay to Aether the fees
specified on the Summary Page.
B. Licensee will pay all taxes, duties, assessments, import and export
fees and withholdings arising out of this Agreement except taxes based upon the
net income of Aether.
C. All payments will be paid to Aether in US Dollars. License fees will be
due on the Effective Date of this Agreement, except as otherwise specified on
the Summary Page. Unless otherwise specified on the Summary Page, maintenance
fees for any Maintenance Period will be due at least thirty (30) days prior to
the start of the Maintenance Period, and Aether shall invoice Licensee at least
thirty (30) days before such Maintenance fees are due. Fees for Professional
Services (if applicable, the scope of such services to be defined in an Appendix
2 attached hereto and incorporated herein by reference) will be invoiced
monthly, based on the number of hours of Professional Services provided during
the preceding month, and are due and payable thirty (30) days from date of
invoice. Any payment not made by Licensee when due under this Agreement (other
than a payment, which is the subject of a bona fide dispute which is resolved in
favor of Licensee) will be subject to interest from the date such payment was
due through the date paid, at the rate of one and one-half percent (1 1/2%) per
month, or the maximum rate allowable at law, if less.
3. PERMISSION TO COPY OR MODIFY THE SOFTWARE
A. Licensee may copy the Software only for Licensee's own use in
accordance with the terms of this Agreement for back-up and archival purposes.
Licensee may copy the Documentation for Licensee's own use of the Software in
accordance with this Agreement. Any copies that Licensee makes of the Software
and Documentation, in whole or in part, shall be and remain Aether's sole
property. Licensee agrees to reproduce and include Aether's copyright,
trademark, and other proprietary rights notices on any copies of the Software
and Documentation, including, without limitation, partial copies.
B. Licensee acknowledges and agrees that, except as specifically set forth
in this Agreement, it does not acquire under this Agreement any rights of use
or ownership with respect to any trade names, trade dress, trademarks, service
marks, commercial symbols, copyrightable material, designs, logos and/or any
other intellectual property of Aether.
C. Licensee agrees not to modify, create derivative works of, translate,
reverse engineer, decompile, dissemble or otherwise recreate or gain access to
the source code of the Software.
4. CO-MARKETING
A. In connection with entering into this Agreement, the parties may agree
to promote each other and each other's products and services (if applicable,
the scope of such promotion to be defined in an Appendix 3 attached hereto and
incorporated herein by reference).
5. NONDISCLOSURE
A. "Confidential Information" means any and all information which is of a
confidential, proprietary or trade secret nature, whether or not marked as
confidential, that is furnished or disclosed by either Party ("Disclosing
Party") to the other party ("Receiving Party") under this Agreement, including
the specific business terms of this Agreement, business plans, technical data,
performance data, programs, methods of operation, contracts, client lists,
financial information, sales and marketing plans business information, and any
other information that is marked as "Confidential," "Proprietary," "Trade
Secret" or in some other manner to indicate its confidential, proprietary or
trade secret nature. Confidential Information of Aether includes, without
limitation, the Software and the Documentation. Confidential Information
excludes any particular information that, as evidenced by written
documentation: (i) is or becomes publicly known without violation of this
Agreement; (ii) is already known to the Receiving Party without restrictions as
of the time of its disclosure; (iii) is independently developed by the
Receiving Party without reference to the Confidential Information; or (iv)
after its disclosure, is made known to the Receiving Party without restrictions
by a third party having the right to do so.
B. Confidential Information will remain the property of the Disclosing
Party, and the Receiving Party will not be deemed by virtue of this Agreement or
any access to Confidential Information to have acquired any right or interest in
or to any such Confidential Information. The Receiving Party shall, with respect
to each item of Confidential Information: (i) hold the Confidential Information
in strict confidence and not disclose any such Confidential Information to any
third party (except as provided below); (ii) use the Confidential Information
solely and exclusively in accordance with the terms of this Agreement in order
to carry out its obligations and/or exercise its rights under this Agreement;
and (iii) notify the Disclosing Party promptly of any unauthorized use or
disclosure of the Confidential Information and cooperate with and assist the
Disclosing Party in every reasonable way to stop or minimize such unauthorized
use or disclosure. The Receiving Party shall not disclose or permit the
disclosure of Confidential Information to employees, consultants and other
third parties unless such parties have a reasonable need to know such
information in connection with the Receiving Party's rights, duties and
obligations under this Agreement and each such party has entered into a written
confidentiality agreement containing substantially the same protection as the
confidentiality provisions contained herein.
C. If Licensee receives a subpoena or other validly issued administrative
or judicial notice requesting the disclosure of Aether's
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Confidential Information, Licensee will promptly notify Aether and, if so
requested, will provide reasonable cooperation to Aether in resisting the
disclosure. Subject to its obligations stated in the preceding sentence,
Licensee will be entitled to comply with any binding subpoena or other process
to the extent required by law, but will in doing so make commercially reasonable
effort to limit the scope and secure confidential treatment of any materials it
is compelled to disclose.
D. Licensee agrees that if a court of competent jurisdiction determines
that Licensee has breached, or attempted or threatened to breach, its
confidentiality obligations to Aether or Aether's proprietary rights, Aether
will be entitled to obtain appropriate injunctive relief and other measures
restraining further or attempted or threatened breaches of such obligations.
Such relief or measures shall be in addition to, and not in lieu of, any other
rights and remedies available to Aether, including without limitation,
accounting and repayment of all profits, compensation, commissions, remuneration
or other benefits which the breaching party directly or indirectly receives
and/or may receive as a result of the violation of any restrictions or
obligation created by this Agreement.
E. The provisions of this Section 5 shall remain in full force and
effect and otherwise survive the expiration or termination of this Agreement.
The Receiving Party acknowledges and agrees that the covenants contained herein
are necessary for the protection of legitimate business interests and are
reasonable in scope and content.
6. WARRANTIES
A. Aether warrants that, during the period ending ninety (90) days after
the date the Software is received by Licensee (the "Warranty Period"),
performance of the unmodified Software as delivered will conform in all
material respects with its then-current Documentation.
B. As of the Effective Date of this Agreement. Aether warrants that it
neither has knowledge of nor has there been an actual claim that the Software
or the Documentation infringe upon any patent, copyright, trademark or trade
secret of any third party, arising or enforceable, under the laws of the United
States.
C. Aether warrants that any Professional Services, Maintenance or
Support Services provided under this Agreement will be performed in a
workmanlike manner consistent with reasonable applicable industry standards.
D. Notwithstanding the foregoing provisions of this Section 6, Aether
does not warrant the Software against material deviations in performance from
the Documentation or claims of infringement caused by: (i) modifications made
to the Software or any portion of it by anyone other than Aether or an
authorized agent; (ii) the combination, operation or use of the Software with
any software or equipment other than the Third Party Products; or (iii)
Licensee's failure to use any new or corrected versions of the Software or
Documentation made available by Aether. AETHER SHALL HAVE NO LIABILITY FOR, AND
EXPRESSLY DISCLAIMS WARRANTY WITH REGARD TO, THE USE OF THE SOFTWARE IN HIGH
RISK ENVIRONMENTS AS SPECIFIED IN SECTION 1.C.
E. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED
WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR
USAGE OF TRADE.
7. EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY; INDEMNITY
A. FOR ANY BREACH OF THE WARRANTIES CONTAINED IN SECTION 6, LICENSEE'S
EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF AETHER WILL BE AS FOLLOWS:
i. If the Software does not perform as warranted in Sections 6.A
Aether's sole obligation will be to correct or modify the Software to make it
perform as warranted. If, after a reasonable opportunity to correct or modify
the Software, Aether is unable to make the Software perform as warranted,
Licensee will be entitled to terminate this Agreement and receive a refund of
the amounts paid by it for the returned item(s), depreciated on a straight-line
basis over a three (3) year period commencing on the Shipping Date of the
Software. Aether shall provide its warranty correction services remotely. If a
suspected nonconformity is attributable to a cause other than the unmodified
Software as originally delivered by Aether, then Licensee will pay for Aether's
work on a time-and-materials basis. If Licensee requests that Aether travel to
Licensee's location to perform such investigation, then Licensee shall
reimburse Aether for the reasonable travel and out-of-pocket expenses of
Aether's personnel.
ii. If a third party brings an action against Licensee based upon a
claimed breach of the warranty given by Aether in Section 6.B (subject to
Section 6.D), then Aether will, at its own expense, settle the claim or defend
Licensee in such proceeding and pay all settlements, costs, damages and legal
fees finally awarded, provided that Licensee promptly notifies Aether in
writing of the proceeding, provides Aether a copy of all information received
by Licensee with respect to the proceeding, and cooperates with Aether in
defending or settling the proceeding. Licensee shall allow Aether to control
the defense and settlement of the proceeding, including, without limitation,
the selection of attorneys. In any settlement, Aether shall obtain a complete
and unconditional release of Licensee. If such a proceeding is brought or
appears to Aether to be likely to be brought, Aether may, at its sole option
and expense, either obtain the right for Licensee to continue using the
allegedly infringing item(s) or replace or modify such item(s). If Aether finds
that neither of these alternatives is available to it on commercially
reasonable terms, Aether may terminate this Agreement and require Licensee to
return the allegedly infringing item(s), in which case Licensee will receive a
refund of the amounts paid by it for the returned item(s), depreciated on a
straight-line basis over a three (3) year period commencing on the Shipping
Date of the allegedly infringing item(s). SUBJECT TO SECTION 9, THIS SECTION 7A
STATES AETHER'S ENTIRE OBLIGATION TO LICENSEE AND LICENSEE'S SOLE REMEDY WITH
RESPECT TO ANY CLAIM OF INFRINGEMENT INVOLVING THE SOFTWARE.
iii. In case of a breach of the warranty given in Section 6.C
Aether's sole obligation will be to correct or re-perform any affected
Professional Services, Maintenance or Support Services at no extra charge and
if after having a reasonable opportunity, Aether fails to correct or re-perform
any non-conforming Professional Services, Maintenance or Support Services,
Licensee shall be entitled to obtain a full refund or all fees corresponding to
such non-conforming Services.
B. Except for claims covered by Section 7.B and claims arising from a
breach of Aether's warranties contained in Section 6 hereof (but only to the
extent that such breach caused a claim), Licensee shall defend at its expense,
indemnify and hold Aether harmless from all claims or actions by third parties
arising out of or relating to Licensee's use of or inability to use the Software
and Documentation and pay all settlements, costs and expenses (including,
without limitation, costs of investigation and reasonable legal fees and
expenses), damages, liabilities and awards provided that Aether promptly
notifies Licensee in writing of the claim, provides Licensee a copy of all
information received by Aether with respect to the claim or action, cooperates
with Licensee in defending or settling the claim or action, and allows Licensee
to control the defense and settlement of the claim or action, including, without
limitation, the selection of attorneys; provided that, in any settlement,
Licensee shall obtain a complete and unconditional release of Aether. Aether
shall have the right to participate in the settlement or defense of any such
claim or action at its own expense. If, as a result of Licensee's negligence,
Aether or Aether's employees suffer personal injury or property damage, Licensee
will reimburse Aether for that portion of any claims Aether actually pays for
which Licensee is legally responsible.
C. THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 9 WILL APPLY
NOTWITHSTANDING THE FAILURE OF ANY EXCLUSIVE REMEDY SET FORTH IN THIS SECTION 7.
D. Except for claims caused by a breach of Aether's warranties contained
in Section 6 of the Agreement (but only to the extent such breach caused the
claim) and claims covered by Section 7.B, Licensee shall defend at its expense,
indemnify and hold Aether harmless from all claims or actions by third parties
arising out of Licensee's acts or omissions in connection its use of the
Software and Documentation and pay all settlements, costs and expenses
(including, without limitation, costs of investigation and reasonable legal
fees and expenses), damages, liabilities and awards provided that Aether
promptly notifies Licensee in writing of the claim, provides Licensee a copy of
all information received by Aether with respect to the claim or action,
cooperates with Licensee in defending or settling the claim or action, and
allows Licensee to control the defense and settlement of the claim or action,
including, without limitation, the selection of attorneys; provided that, in
any settlement, Licensee shall obtain a complete and unconditional release of
Aether. Aether shall have the right to participate in the settlement or defense
of any such claim or action at its own expense. If, as a result of Licensee's
negligence, Aether or Aether's employees suffer personal injury or property
damage, Licensee will reimburse Aether for that portion of any claims Aether
actually pays for which Licensee is legally responsible.
8. SOFTWARE MAINTENANCE AND SUPPORT SERVICES
A. If provided on the Summary Page, Licensee is enrolled in the optional
maintenance and support services for the Software ("Maintenance and Support
Services") for the initial twelve (12) month period (a "Maintenance Period")
according to the fees specified on the Summary Page. At the expiration of the
initial Maintenance Period or any
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subsequent Maintenance Period, Licensee may buy Maintenance and Support
Services for the Software for another Maintenance Period at Aether's
then-current prices; provided that: (i) Aether is still offering Maintenance
and Support Services for the Software; (ii) Licensee has paid the maintenance
fees for all prior Maintenance Periods; and (iii) Licensee incorporates into
the Software within thirty (30) days of the issue date all enhancements and
corrections to the Software that Aether has made available to Licensee.
Notwithstanding the foregoing, Aether will provide Maintenance and Support
Services for the currently released version of the Software and the immediately
prior version of the Software.
B. Maintenance and Support consists of the following services: (i)
Aether will supply electronic product support via the internet; (ii) Aether
will consult with Licensee for a reasonable amount of time by telephone during
Aether's normal business hours to assist Licensee in the use of the Software;
(iii) Aether will use reasonable efforts to supply computer program code to
correct any material nonconformities in the Software from the Documentation; and
(iv) Aether will provide Licensee with all fixes, workarounds, and enhancements
to the Software that Aether develops and generally makes available at no charge
to other licensees of the Software.
C. Aether may, at its option, investigate and correct suspected Errors at
Aether's offices to the extent possible. If Aether's personnel travel to
Licensee's place of business at Licensee's request to perform maintenance and
support services that Aether could have performed remotely and Aether notifies
Licensee as soon as practicable after learning that such services could be
performed remotely, Licensee will pay Aether for the actual travel time and
reasonable travel and out-of-pocket expenses of Aether's personnel. If Aether
and Licensee mutually determine that a suspected nonconformity is attributable
to a cause other than the unmodified Software as delivered by Aether, then
Licensee will pay for Aether's work on a time-and-materials basis, including
reasonable travel and out-of-pocket expenses of Aether's personnel. If no mutual
determination can be agreed upon, Licensee will pay only for the reasonable
travel and out-of-pocket expenses of Aether's personnel.
D. All enhancements and corrections to the Software provided by Aether
under this Section 8 will become a part of the Software for the purposes of this
Agreement at the time they are provided to Licensee and are hereby included
within the license grant, and subject to the provisions of, this Agreement.
E. This Agreement does not include any other professional services in
connection with Aether's provision of the Software except for (i) the warranty
obligations set forth in Section 6; (ii) the maintenance and support services
provided pursuant to this Section 8; and (iii) any additional Professional
Services which may be set forth in an appendix (which if executed shall be
designated Appendix 2 and incorporated herein by this reference).
F. Copies of the Software in programming source code along with
necessary documentation for installing, maintaining or modifying the Software
("Deposit Materials") have been deposited with DSI Escrow Services, (or other
escrow agent mutually agreed upon by the parties), under a deposit agreement,
substantially in the form attached to the Agreement as Exhibit B (the "Deposit
Agreement"). Aether shall maintain the Deposit Agreement in good force for each
of the first three Maintenance Periods hereunder, provided that Licensee shall
pay the costs of maintaining Licensee as a Preferred Beneficiary under such
Deposit Agreement. Aether shall update the Deposit Materials within ninety (90)
days of each release of a new version of Software and such updates will be added
to the existing Deposit Materials. Aether shall not cancel or modify such
Deposit Agreement without thirty (30) days notice to Licensee. Licensee shall be
entitled to access the Deposit Materials if a Release Condition as set forth in
Section 8.G of the Deposit Agreement has occurred.
G. If, during any of the first three annual Maintenance Periods, Aether,
its successors or assigns
i. fails in any material respect to provide support for or maintain
the Software licensed by Licensee in accordance with the terms of this
Agreement during the term hereof; or
ii. fails to continue to do business in the ordinary course and no
successor or assignee of Aether is obligated to support or maintain the
Software in accordance with this Agreement during the term hereof,
then, Licensee shall provide written notice of such failure (the "Notice") to
Aether. Within thirty (30) days of receipt of the Notice, Aether shall cure such
failure or mutually agree with Licensee on a plan to cure such failure and in
good faith, implement such plan (each of the foregoing, a "Cure"). If the
parties agree that Aether has failed to Cure, then, subject to Section 12.A of
the Agreement, a "Release Condition" shall be deemed to have occurred and
Licensee shall be entitled to (a) a prorated refund of the prepaid Software
maintenance fees for the remainder of the Maintenance Period in which the Notice
is received; and (b) the use of the source code of the Software for the duration
of the Maintenance Period in accordance with the Deposit Agreement solely to
continue to provide maintenance services to maintain and fix errors in the
Software for Licensee's continued use of the Software and for no other purposes.
All disputes under this Section 8.G that are unresolved by the parties
(including, without limitation, whether a failure to provide support or
maintenance has occurred or whether a Release condition has occurred) shall be
resolved in accordance with Section 12.A of the Agreement, and the arbitrators'
determination of whether a Release Condition has occurred shall be final and
binding upon the parties and enforceable in any court of competent jurisdiction.
The parties agree that they shall utilize the cure mechanism provided herein
prior to informing DSI that a release condition has occurred. Throughout the
duration of any use of the Software source code pursuant to this Section 8.G
Licensee expressly reaffirms all provisions of this Agreement relating to the
protection of Confidential Information and intellectual property rights of
Aether.
9. LIMITATION OF LIABILITY
A. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AETHER'S ENTIRE
LIABILITY AND LICENSEE'S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY EVENT OR CLAIM
ARISING UNDER OR RELATING TO THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, AND
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING
WITHOUT LIMITATION, BREACH OF WARRANTY AND NEGLIGENCE), WILL BE LIMITED AS
FOLLOWS:
i. Aether will be liable for Licensee's direct damages only, in an
amount not to exceed, in the aggregate for all claims, the total amount of
license fees paid to Aether under this Agreement, except that (a) in the case
of claims relating to any maintenance and support services provided under
Section 8, Aether's liability shall be limited to the total amount of
maintenance fees for the Maintenance Period in which the claim arose, (b) in
the case of Consulting Services provided pursuant to an attached Work Order,
Aether's liability shall be limited to the cost of the Work Order under which
the claim arose, and (c) subject to Section 9.A.2 in the case of claims
involving personal injury, Aether's liability shall not be limited to the total
amount of fees paid by Licensee."
ii. EXCEPT FOR CLAIMS INVOLVING PERSONAL INJURY, IN NO EVENT WILL
EITHER PARTY BE LIABLE FOR (A) ANY DAMAGES CAUSED BY ANOTHER PARTY'S FAILURE TO
PERFORM ITS RESPONSIBILITIES (OTHER THAN AN AUTHORIZED AGENT OF THE OTHER); (B)
ANY CLAIMS OR DEMANDS OF THIRD PARTIES (OTHER THAN THOSE THIRD PARTY CLAIMS
COVERED BY SECTION 7.B); OR (C) ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF
USE, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT,
EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. FOR CLAIMS INVOLVING PERSONAL INJURY, NEITHER PARTY'S LIABILITY SHALL
EXCEED $1,000,000.
B. Aether will not be held responsible for any failure, delay or
interruption in the performance of any of the terms or conditions contained in
this Agreement due to causes beyond its reasonable control, including, without
limiting the generality of the foregoing, strikes, boycotts, labor disputes,
embargoes, acts of God, acts of public enemy, acts of governmental authority,
floods, riots or rebellion.
C. The limitations of liability set forth in this Section 9 will survive
the expiration or termination of this Agreement.
10. THIRD PARTY PRODUCTS
A. Licensee acknowledges that the Software requires the then-current
version of the third party products specified in the Documentation (the "Third
Party Products") in order to be operable. Prior to using the Software, Licensee
must obtain the Third Party Products (or a license to use the Third Party
Products, as applicable) from the applicable third party suppliers. Changes in
the Software which Aether may make from time to time may make it necessary for
Licensee to acquire, at its own expense, updated versions of the Third Party
Products or additional third party products. Aether shall have no warranty,
maintenance or other obligations with respect to any Third Party Products.
11. TERMINATION
A. Either party may terminate this Agreement upon thirty (30) days' prior
written notice if the other has materially failed to comply with any of the
terms and conditions of this Agreement and fails to cure its non-compliance
within such thirty (30) day period. Such termination of this Agreement under
this Section 11.A shall not affect the licenses granted to Licensee in
Section 1.A.
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B. Notwithstanding the foregoing, if Licensee materially breaches the
terms of Section 1 or its nondisclosure obligations under Section 5, Aether
shall have the right upon seven (7) days notice during which time Licensee will
attempt to cure such breach to Aether's sole satisfaction, without affecting any
other rights and remedies Aether may have, to terminate this Agreement
(including, without limitation, termination of the license for the Software
granted in Section 1.A). Termination of this Agreement will be in addition to,
and not in lieu of, other remedies available to the terminating party under this
Agreement.
C. Within thirty (30) days after the expiration or termination of this
Agreement for any reason, Licensee must, at Aether's option, either deliver to
Aether or destroy the original and all copies (including partial copies) of the
Software, the Documentation, all Aether Confidential Information, and any other
materials provided by Aether under this Agreement, and certify in writing to
Aether that Licensee has fully performed its obligations under this Section.
12. LAW AND DISPUTES
A. Any unresolved dispute relating to or arising from this Agreement
shall be resolved exclusively by a three (3) person arbitration panel, with such
arbitration proceeding conducted in accordance the Commercial Rules of the
American Arbitration Association then in effect. The arbitration panel shall be
composed of one arbitrator selected by each party and a third arbitrator
selected by the other two arbitrators. The parties agree that the arbitrators
shall not have the authority to add to, detract from, or modify any provision
hereof nor to award punitive damages to any injured party. A decision by a
majority of the arbitration panel shall be final and binding. Judgment may be
entered on the arbitrators' award in any court having jurisdiction. Unless
otherwise agreed by Aether and Licensee, arbitration will take place in Fairfax
County, Virginia. Notwithstanding the foregoing, the parties shall be entitled
to seek injunctive or other equitable relief from any court of competent
jurisdiction, without the need to resort to arbitration. Service of a petition
to confirm the arbitration award may be made by First Class mail or by overnight
delivery service by a nationally recognized carrier to the attorney for the
party or, if unrepresented, to the party at the last known business address.
B. The validity, construction and interpretation of this Agreement, and the
rights and duties of the parties, shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia, excluding its choice
of law rules, and excluding any application of the United Nations Convention on
Contracts for the International Sale of Goods. The parties hereto consent to the
jurisdiction of the state and Federal courts of the United States serving
Fairfax County, Virginia, in connection with any controversy arising out of the
operation of this Agreement and agree not to bring any action in any other
jurisdiction.
C. Licensee agrees to comply fully with all applicable export control
laws and regulations, including those of the United States. Licensee agrees
specifically not to export, re-export or transmit, directly or indirectly, the
Software or Documentation or any technical data or service that is the direct
product of the Software or Documentation, to any country as to which the U.S.
Export Administration Act, as currently amended, or its regulations (the "Export
Act"), prohibits export or as to which the Export Act requires Licensee to
obtain prior U.S. government authorization, unless such prior U.S. government
authorization is obtained.
D. No proceeding, regardless of form, arising out of or in connection
with the transactions covered by this Agreement may be brought by either party
more than two (2) years after the accrual of the cause of action, except that
proceedings related to violation of a party's proprietary rights or any duty to
protect Confidential Information may be brought at any time within the
applicable statute of limitations.
13. GENERAL TERMS AND CONDITIONS
A. Any notice or other communication required or permitted to be made or
given by either party pursuant to this Agreement will be in writing, in English,
and will be deemed to have been duly given: (i) five (5) business days after the
date of mailing if sent by registered or U.S. certified mail, postage prepaid,
with return receipt requested; (ii) when transmitted if sent by facsimile,
provided a confirmation of transmission is produced by the sending machine and a
copy of such facsimile is promptly sent by another means specified in this
Section 13.A; or (iii) when delivered if delivered personally or sent by express
courier service. All notices will be sent to the other party at its address as
set forth on the Summary Page to this Agreement or at such other address as such
party will have specified in a notice given in accordance with this Section
13.A.
B. Licensee may not assign (directly or by operation of law) or otherwise
transfer any right or obligation set forth in this Agreement without Aether's
prior written consent. Any purported assignment in violation of the preceding
sentence will be null and void. Notwithstanding the foregoing, Licensee shall
be permitted to assign this Agreement to the purchaser of all or substantially
all of the assets or capital stock of Licensee without prior written consent of
Aether. This Agreement will be binding upon the parties and their respective
successors and permitted assigns. For purposes of this Agreement a merger, sale
or other change in control shall be deemed to be an assignment.
C. There are no intended third party beneficiaries of any provision of
this Agreement.
D. Aether is and will remain an independent contractor with respect to
all performance rendered pursuant to this Agreement. Neither Aether nor any
employee or agent of Aether will be considered an employee or agent of Licensee
for any purpose. Neither party, nor its employees, will have any authority to
bind or make commitments on behalf of the other party for any purpose, nor will
it or they hold itself or themselves out as having such authority. Each party
will be solely responsible for supervising, providing daily direction and
control, paying the salaries (including withholding of income taxes and social
security), worker's compensation, and disability benefits of its personnel.
E. Each party acknowledges to the other that it has no current intention
to employ any person employed by the other party. Each party agrees not to
solicit for employment by such party or any of its affiliates, directly or
indirectly, until at least twelve (12) months after this Agreement terminates,
any person employed by the other party or any of its affiliates with whom such
party had contact in the course of performance of this Agreement during the
preceding twelve (12) months. However, this provision shall not be construed to
prohibit either party or its affiliates from hiring any such person provided
that the hiring party or its affiliates do not solicit such person for
employment.
F. This Agreement (consisting of the Summary Page, these Terms and
Conditions and the Appendices attached hereto, all of which are incorporated by
reference herein) constitutes the entire agreement between the parties, and
supersedes all other prior or contemporaneous communications between the parties
(whether written or oral), and all other communications, including without
limitation, materials contained on the Aether website, relating to the subject
matter of this Agreement. In the event of any conflict among the various parts
of this Agreement, the terms of the Summary Page will supersede and take
precedence over the Appendices and these Terms and Conditions, and the
Appendices will supersede and take precedence over these Terms and Conditions.
This Agreement may be modified or amended solely in a writing signed by both
parties. Any terms contained in Licensee's purchase orders, acknowledgments,
shipping instructions, or other forms, that are inconsistent with or different
from the terms of this Agreement will be void and of no effect.
G. The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any one or more of its provisions shall not
affect the validity or enforceability of any of the other provisions. In
addition, if any provision of this Agreement, for any reason, is declared to be
invalid or unenforceable, the parties shall substitute a valid and enforceable
provision that, to the maximum extent possible in accordance with applicable
law, preserves the original intentions and economic positions of the parties.
H. No failure or delay by either party in exercising any right, power or
remedy will operate as a waiver of any such right, power or remedy, and no
waiver will be effective unless it is in writing and signed by the party waiving
its right, power or remedy. If either party waives any right it has under this
Agreement, such waiver will not waive any successive or other right the party
may have under this Agreement.
I. Sections 1.B, 5, 7, 9, 11.B, and 12, and any provisions of this
Agreement that by their sense and context contemplate continued performance or
observance by one or both parties following the expiration or termination for
any reason of this Agreement will survive any such expiration or termination.
J. Headings used in this Agreement are for convenience of reference only,
and will not be used to interpret or construe this Agreement. The English
language version of this Agreement shall control over any alternative language
version hereof.
K. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
4 Confidential and Proprietary
6
EXHIBIT A
TO SCOUTWEB SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN AETHER SOFTWARE, INC. AND OMNISKY CORPORATION
PRICING AND REPORTING
This proposal is valid until July 15, 2000.
SOFTWARE PRICING:
SOFTWARE PRODUCT: UNITS: SUBTOTAL:
ScoutWeb(TM) Dual CPU 30 servers $1,350,000.00
MAINTENANCE AND SUPPORT SERVICES FEES:
Annual Fees $ 121,500.00
Maintenance and support begins upon Effective Date and is calculated
at 9% of List license fees.
NOTES:
From the Effective Date through June 30, 2003, Licensee is entitled to purchase
ScoutWeb licenses in excess of the thirty (30) server licenses purchased above
at the price of $15,000.00 per license. Notwithstanding the foregoing, if
ScoutWeb is re-engineered to no longer require certain third party software
licenses, the per unit price of additional ScoutWeb licenses, after GA of
re-engineered product, shall be $7,500.00 per license.
5 Confidential and Proprietary
7
EXHIBIT B
PREFERRED BENEFICIARY
ACCEPTANCE FORM
Account Number ▇▇▇▇▇▇▇
Depositor, Preferred Beneficiary and DSI Technology Escrow Services, Inc.
("DSI"), hereby acknowledge that OmniSky Corporation is the Preferred
Beneficiary referred to in the Master Preferred Escrow Agreement effective
May 19, 2000 with DSI as the escrow agent and Aether Software, Inc. as the
Depositor. Preferred Beneficiary hereby agrees to be bound by all provisions of
such Agreement.
Depositor hereby enrolls Preferred Beneficiary to the following account(s):
Account Name Account Number
------------ --------------
ScoutWeb 0105022-00003
----------------------------------------- ---------------------------------------
----------------------------------------- ---------------------------------------
----------------------------------------- ---------------------------------------
Notices and communications to Preferred Invoices should be addressed to:
Beneficiary should be addressed to: (if blank, same as information to the left)
Company Name: OmniSky Corporation Company Name: OmniSky Corporation
--------------------------- ---------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------- ---------------------------
Address: ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------- ---------------------------
Contact: Contact: Accounts Payable
--------------------------- ---------------------------
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------- ---------------------------
Facsimile: Facsimile:
--------------------------- ---------------------------
P.O. #, if
required
---------------------------
OmniSky Corporation Aether Software, Inc.
Preferred Beneficiary Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By:
------------------------------ ------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name:
------------------------------ ------------------------------
Title: President Title:
------------------------------ ------------------------------
Date: Date:
------------------------------ ------------------------------
DSI Technology Escrow Services, Inc.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Date:
-----------------------------------
6 Confidential and Proprietary
8
[DSI TECHNOLOGY ESCROW SERVICES LOGO]
Fee & Services Schedule
------------------------------------------------------------------------------
NEW ESCROW AGREEMENT ANNUAL FEE SETUP FEE
------------------------------------------------------------------------------
Comprehensive Preferred $2,150 $1,050
------------------------------------------------------------------------------
Master Preferred $1,350 $2,050
------------------------------------------------------------------------------
Reseller $1,350 $2,050
------------------------------------------------------------------------------
Preferred $1,350 $1,050
------------------------------------------------------------------------------
FlexSAFE $1,250 $ 350
------------------------------------------------------------------------------
SAFE $1,250 $ 350
------------------------------------------------------------------------------
Technology Protection $ 700 No Fee
------------------------------------------------------------------------------
ADDITIONAL BENEFICIARY
------------------------------------------------------------------------------
Preferred $650/ea. $1,000
------------------------------------------------------------------------------
Master Preferred $650/ea. No Fee
------------------------------------------------------------------------------
FlexSAFE $200/ea. No Fee
------------------------------------------------------------------------------
SAFE $ 50/ea. No Fee
------------------------------------------------------------------------------
ADDITIONAL DEPOSIT ACCOUNT
------------------------------------------------------------------------------
Master Preferred $ 700 No Fee
------------------------------------------------------------------------------
------------------------------------------------------------------------------
SERVICE OPTIONS FEES
------------------------------------------------------------------------------
Unlimited deposit or replacement plus
one additional storage unit $300/yr.(1)
------------------------------------------------------------------------------
Individual deposit updates or replacements $200/ea.
------------------------------------------------------------------------------
DeposiTrack updates $300/ea.(1)
------------------------------------------------------------------------------
Remote vaulting $500/yr.
------------------------------------------------------------------------------
Release filing fee No Fee(2)
------------------------------------------------------------------------------
Custom contracts No Fee(3)
------------------------------------------------------------------------------
Additional storage units $100/ea.
------------------------------------------------------------------------------
Technical verification (estimates based on $200/hr.)
Verification Level I $800(1)
Verification Level II $1,200-$1,600
Verification Level III $3,200-$6,400
------------------------------------------------------------------------------
------------
(1) Included in the Comprehensive Preferred annual fee.
(2) Copying expenses in excess of $300 will be chargeable.
(3) A one-time fee of $500 may be assessed for contract modifications that
change DSI's standard processes.
7 Confidential and Proprietary