Exhibit 10.10
CISCO SYSTEMS, INC.
PROJECT DEVELOPMENT AND LICENSE AGREEMENT
This Project Development and License Agreement ("Agreement") is made in
California as of July 13, 1994, by and between Cisco Systems, Inc., a
California corporation having its principal place of business at ▇▇▇▇ ▇'▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇, ("Cisco"), and Frontier Software Development, Inc.
("Frontier"), a Delaware corporation having its principal place of business at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
The parties hereto agree as follows:
1. Definitions.
"Derivative Work" means the incremental work constituting enhancements and
modifications to the Software and/or works based on the source code developed as
a result of a porting the Software to Cisco platforms.
"Software" shall mean Frontier's RMON software and Derivative Work, in machine
readable binary and source code form, and all related documentation and tools
necessary to use the software listed in Exhibit A.
"RMON Extensions" shall mean Frontier's proprietary RMON extensions in machine
readable binary and source code form, and all related documentation and tools
necessary to use the software listed in Exhibit A.
"NETscout Manager" shall mean Frontier's network management application software
in machine readable binary form, and all documentation and tools necessary to
use the network management application software listed in Exhibit A.
2. Scope Of Work.
Frontier agrees to use commercially reasonable efforts to develop the Derivative
Work for Cisco's platforms and modify the NETscout Manager to incorporate
Cisco's OEM labeling requirements in accordance with the Specification and
Project Plan ("Specifications") attached hereto as Exhibit A and the Project
Schedule set forth in Exhibit B. Material changes in the Project Schedule or the
Specifications may be agreed to by both of the Project Managers in writing from
time to time during the port of the Software and RMON Extensions. Each party
agrees to negotiate in good faith and in a reasonable manner to reach agreement
for such changes or modifications. Frontier shall provide Cisco with periodic
updates of the status of the development effort in such form as Frontier and
Cisco deem appropriate.
Frontier designates ▇▇▇▇ ▇▇▇▇▇▇▇▇ as the Project Manager and Cisco designates
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as the Project Manager for this Agreement. Frontier designates
▇▇▇▇ ▇▇▇▇▇▇▇▇ as the Marketing Manager and Cisco designates ▇▇▇▇ ▇▇▇▇▇▇ as the
Marketing Manager for
this Agreement. The Project Managers, or their representatives, shall meet on a
regular basis throughout the development phase of this Agreement for the purpose
of joint progress reporting and relationship/program management.
The parties agree to use commercially reasonable efforts to provide appropriate
test equipment and engineering assistance to the other party for development of
the Software. Test equipment shall be returned upon request of the loaning
party.
3. Acceptance Testing.
From the date of delivery of each development milestone for the Software and
RMON Extensions, Cisco will have [*] to perform the acceptance tests specified
in the Specifications on the products. If the Software and RMON Extensions do
not conform to the Specifications, or do not otherwise pass the acceptance
tests, Frontier must deliver a detailed plan of how and when the error will be
corrected within [*] and must execute the plan if approved by Cisco. At each
delivery until such products pass the final acceptance tests, Cisco may re-test
the Software and RMON Extensions and Frontier agrees to best efforts cure the
defects.
4. License.
Subject to the terms and conditions hereof including payment, Frontier grants to
Cisco a worldwide, irrevocable (except for breach of the terms of this license
grant), perpetual, and non-exclusive license to use, modify, copy, market,
distribute or otherwise dispose of the Software and RMON Extensions. The license
granted hereunder shall include rights under any applicable patents, copyrights
or trade secrets necessary to use the Software and RMON Extensions.
Frontier also grants Cisco a worldwide, non-exclusive license to market and
distribute NETscout Manager under Cisco's label. The license granted hereunder
shall include rights under any applicable patents, copyrights or trade secrets
necessary to use the NETscout Manager.
5. Restrictions.
In consideration of the License granted herein and a material inducement for
Cisco's entering into this Agreement and paying the amounts required to be paid
hereunder, Frontier agrees, that it will not, directly or indirectly, publicly
announce or disclose any
[*]INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
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agreement or undertaking relating to license or port of the Software or RMON
Extensions or resale of NETscout Manager with the Cisco competitor's listed in
Exhibit C. The foregoing restriction shall commence upon the execution date of
this Amendment and continue for a period ending on the later of [*] after
execution of this Agreement or [*] from delivery of beta Software and RMON
Extensions that meets a mutually agreed upon test suite.
Cisco shall have no right to sublicense or cross license the Software and RMON
Extensions as a standalone product. Subject to payment of the Software License
Fees set forth in Exhibit D, Cisco shall full right to sublicense, cross-license
or otherwise transfer Cisco protocols that incorporate the Software and RMON
Extensions to any third party; provided however, such third party is restricted
from extracting the Software and RMON Extensions from the Cisco protocols or
otherwise using the Software and RMON Extensions apart from its use with Cisco's
protocol without obtaining a license from Frontier.
6. Title.
Title and full ownership rights to the RMON software and RMON Extensions shall
remain solely with Frontier.
Title and full ownership rights to the Derivative Work developed hereunder shall
vest solely with Cisco.
All rights, whether now existing or hereafter arising, which are not
specifically granted to the receiving party hereunder are retained by their
respective holders.
7. Price/Delivery.
Upon execution of this Agreement, Frontier shall deliver to Cisco one (1) copy
of the Software and RMON Extensions in the format requested by Cisco.
In consideration of the development efforts and rights and licenses granted
herein by Frontier, Cisco's shall pay to Frontier the license fees set forth in
Exhibit D hereto.
All payments required by this Agreement are exclusive of sales, use, rental
receipt, personal property or other taxes or excise taxes which may be levied or
assessed in connection with this Agreement, and Cisco agrees to bear and be
responsible for the payment of all such taxes, except taxes based on Frontier's
income.
[*]INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
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8. Support/Consulting.
During the first year of this Agreement, Frontier shall provide to Cisco
maintenance, in the form of telephone hotline support, updates, revisions, bug
fixes and new releases to the Software and RMON Extensions shall be provided at
no charge. Thereafter, Cisco may purchase annual maintenance services for an
annual maintenance fee of [*]. All updates, revisions, bug fixes and new
releases provided to Cisco by Frontier shall be subject to the terms and
conditions of this Agreement.
9. Warranty.
Frontier warrants that the Software and the port of the RMON Extensions wild be
designed in accordance with Specifications. Frontier warrants for a period of
ninety days that the software modified or delivered by it will conform to the
Specifications for the Software. In the event that Cisco reports a defect to
Frontier, Frontier will use its best efforts to cure the defect within the
reasonable time periods requested by Cisco.
Frontier warrants that it has and shall throughout the term of the Agreement
have sufficient right, title and interest in the Software and RMON Extensions
provided to the Cisco to enter into this Agreement and to grant the rights it
has under this Agreement. Further, Frontier warrants that no additional rights
or licenses will be necessary to exercise the rights granted hereunder.
EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, FRONTIER MAKES NO
ADDITIONAL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER
WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
10. Confidential Information.
Cisco acknowledges Frontier's representation that the Software and RMON
Extensions and the design thereof constitutes a valuable trade secret to
Frontier and agrees that the Software and RMON Extensions and the design thereof
are provided in confidence as proprietary to Frontier, and such Software and
RMON Extensions is provided solely for Cisco's and Cisco's sublicensees'
nonexclusive use subject to the terms of this
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HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
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Agreement. Cisco agrees to employ the same degree of care, but not less than
reasonable care, to protect the Software and RMON Extensions and RMON Extensions
from unauthorized disclosure or use as Cisco uses to protect its own proprietary
information of a similar kind and importance.
Cisco agrees that prior to disclosure of the Software, RMON Extensions or design
thereof to any consultant or sublicensee it shall secure that third party's
agreement to treat the Software and RMON Extensions as confidential information
under restrictions at least as protective as the provisions of this Agreement.
Cisco agrees that it will take appropriate action with its employees,
consultants, and sublicensees by agreement or otherwise, to ensure that they
will take appropriate steps to comply with their obligations with respect to
use, copying, transference, protection and security of the Software and RMON
Extensions.'
Cisco's obligations to hold the Software and RMON Extensions in confidence shall
not apply to any part of the Software or RMON Extensions which:
a. is, or becomes, available to the public other than by breach of any
obligation herein assumed by Cisco; or
b. is furnished to a third party by Frontier without restriction of the
third party's right to disseminate the Software or RMON Extensions; or
c. is independently developed by Cisco without use or access to the
Software, RMON Extensions and the design thereof, or
d. is disclosed to Cisco by a third party having the right to make such
disclosure.
11. Publicity.
Neither party shall disclose, advertise or publish the existence nor the terms
or conditions of this Agreement, except to auditors, counsel, financing sources
and in connection with a merger or sale of all or substantially all of such
parties assets, without the prior written consent of the other party.
12. Term and Termination.
This development portion of this Agreement shall commence on the date first set
forth above and continue until a period of three (3) years. Either party may
terminate this Agreement in the event the other party breaches any term or
condition of this Agreement, and the breaching party fails to cure such breach
within [*] of receipt of
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HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
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notice from the nonbreaching party. Except as expressly set forth below,
Sections 4, 5, 6, 7, 8, 10, 11, 13, 16 and Exhibit B shall survive any
termination or expiration of this Agreement.
Solely in the event Frontier terminates this Agreement as a result of Cisco's
unsecured breach of Section 4, 5 or Exhibit D, Cisco shall cease distributing
and return the RMON Extensions and any copies thereof to Frontier within [*] of
the effective date of termination. Cisco may retain a reasonable number of
copies of the RMON Extensions for support purposes.
In no event shall termination or expiration of this Agreement affect Cisco's
customers or partners sublicense rights in the Software and RMON Extensions.
13. Intellectual Property Indemnification
Frontier warrants that it owns all rights to the Software and RMON Extensions
and that the Software and RMON Extensions does not infringe upon or violate any
patent, copyright or trade secret of any third party. If any claim of
infringement is made by any third party against Cisco or its customers, Cisco
shall promptly notify Frontier, and Frontier shall indemnify, defend, and hold
Cisco harmless against any and all liability, losses, claims, expenses
(including reasonable attorneys' fees), demands of any kind arising out of any
such claim, whether or not that claim is successful, provided that Cisco (i)
gives Frontier notice of such claim, (ii) cooperates with Frontier, at
Frontier's expense, in the defense of such claim, and (iii) gives Frontier the
right to control the defense and settlement of any such claim, except that
Frontier shall not enter into any settlement that affects Cisco's rights or
interest without Cisco's prior written approval. Cisco shall have no authority
to settle any claim on behalf of Frontier.
If by reason of such infringement claim any patent, copyright or trade secret of
any third party, Cisco or its customers shall be prevented or is likely to be
prevented by legal means from selling or using the Software and RMON Extensions,
or if, in Frontier's opinion, such claim is likely to occur, Frontier will use
its best efforts, at its expense, to: (i) obtain all rights required to permit
the sale or use of the Software and RMON Extensions by Cisco and its customers;
or (ii) modify or replace such Software and RMON Extensions to make them
noninfringing (and extend this indemnity thereto), provided that any such
replacement or modified Software and RMON Extensions are satisfactory to Cisco.
If Frontier using its best efforts, is unable to achieve either of the options
set forth above within a reasonable period of time after the issuance of the
injunction, Frontier shall promptly refund to Cisco all fees paid hereunder.
[*]INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
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The foregoing indemnification shall not extend to any claim based solely upon
the combination, operation or use of the Software or RMON Extensions supplied
hereunder with equipment, devices or software not supplied by Frontier, or any
alteration or modification of the Software and RMON Extensions supplied
hereunder.
THE FOREGOING STATES THE ENTIRE OBLIGATION OF FRONTIER WITH RESPECT TO
INFRINGEMENT OF PATENTS, COPYRIGHTS AND TRADE SECRETS.
14. General.
No waiver of rights under this agreement by either party shall constitute a
subsequent waiver of this or any other right under this Agreement.
Neither party shall be liable for any delay or failure in performance due to
such acts of God, earthquake, labor disputes, riots, war, fire, epidemics, or
transportation difficulties. The obligations and rights of the excused party
shall be extended on a day to day basis for the time period equal to the period
of the excusable delay.
Neither this Agreement nor any rights under this Agreement, other than monies
due or to become due, shall be assigned or otherwise transferred by either party
without the prior written consent of the other party. This Agreement may be
transferred or otherwise assigned to any company or other entity which acquires
all or substantially all of the assets of such party.
In the event that any of the terms of this Agreement become or are declared to
be illegal by any Court or tribunal of competent jurisdiction, such term or
terms shall be null and void and shall be deemed deleted from this Agreement.
All the remaining terms of this Agreement shall remain in full force and effect
provided, however, that if this paragraph becomes applicable and if the effect
thereof is to substantially impair the value of this Agreement to either party,
then the affected party may terminate this Agreement by written notice to the
other.
This Agreement (including the Exhibits hereto) constitutes the entire Agreement
between the parties hereto concerning the subject matter of this Agreement; and
there are no conditions, understandings, agreements, representations, or
warranties, expressed or implied, which are not specified herein. This Agreement
may only be modified by a written document executed by the parties thereto.
Neither party has the right or authority to, and shall not, assume or create any
obligation of any nature whatsoever on behalf of the other party or bind the
other party in any respect whatsoever.
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This Agreement shall bind and insure to the benefit of the successors and
permitted assigns of the parties.
This Agreement shall be interpreted and construed and legal relations created
shall be determined in accordance with the Laws of the State of California.
15. Joint Marketing
The parties agree to explore in good faith and, upon mutual consent of the
parties, participate in appropriate marketing and sales activities to leverage
each parties products. Such activities may include, but are not limited to,
trade shows, product training, sales training and product literature.
16. Notice.
Any notice which may be given by a party under this Agreement shall be in
writing and shall be either delivered in person, U.S. Mailed, First Class,
postage prepaid, air courier, or telex or facsimile to the party to be notified,
at the address set forth below.
If to Cisco:
Cisco Systems, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President - Bus Dev
If to Frontier.
Frontier Software Development, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Attn: President
17. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE, EXCEPT FOR CLAIMS ARISING UNDER
SECTION 13 INTELLECTUAL PROPERTY INDEMNIFICATION OR CLAIMS OF PERSONAL INJURY OR
DAMAGE TO TANGIBLE PERSONAL PROPERTY RESULTING FROM HE NEGLIGENT ACTS OR
OMISSIONS OF EITHER PARTY, FOR AN AMOUNT WHICH EXCEEDS [*].
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HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
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IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, OR ANY OTHER INDIRECT DAMAGES
EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first written above.
CISCO SYSTEMS, INC. FRONTIER SOFTWARE
DEVELOPMENT, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------- ------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------- --------------------------------
Title: V.P. WBU Title: President
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Exhibit A
[Insert list of deliverables/code lists]
Statement of Work
(This section supports Exhibit A&B)
[*]
[*]INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
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Exhibit B
[Insert Software Specifications]
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Exhibit C
[*]
[*]INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
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Exhibit D
1. Software License Fees.
Cisco agrees to pay to Frontier a Software License Fee for object code copies of
the Frontier's Proprietary RMON Extensions distributed to any third party
coincident with the sale of Cisco technology in accordance with the following
schedule:
CHASSIS type LICENSE fee
[*] [*]per card running Frontier's Proprietary RMON
Extensions (Not to exceed ([*] per chassis)
All other Cisco platforms [*] per chassis running Frontier's Proprietary
RMON Extensions
2. NETscout Manager License Fees.
Frontier agrees that Cisco shall receive a [*] Frontier's published list price
for NETscout Manager sold to any third party.
3. License Fees Payment Terms.
Cisco shall provide Frontier with report which shall be sufficient to allow
Frontier to verify the Software License Fees due and payment of such Software
License Fees within [*] of the end of each calendar quarter.
If at any time during the term of this Agreement Frontier enters into an
agreement with any party under [*] than those provided to Cisco herein, Frontier
shall within [*] its acceptance of the new agreement with the other party,
notify Cisco of such agreement. Within [*] of receipt of Frontier's notice,
Cisco may give written notice to Frontier that this Agreement is [*] Cisco with
the [*] provided to the other party. Such [*] shall be made [*] of the other
party's agreement.
[*]INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.