Private Label Agreement and Project Development and License Agreement [Amendment] - Cisco Systems Inc. and Frontier Software Development Inc.
AMENDMENT TO
PRIVATE LABEL AGREEMENT
AND
PROJECT DEVELOPMENT AND LICENSE AGREEMENT
BETWEEN
CISCO SYSTEMS, INC.
AND
FRONTIER SOFTWARE DEVELOPMENT, INC.
This Amendment ("Amendment") is made in California by and between Cisco
Systems, Inc., a California corporation having its principal place of business
at 170 West Tasman Drive, San Jose, CA 95134-1706, U.S.A. ("Cisco"), and
Frontier Software Development, Inc., a Delaware corporation having its principal
place of business at 321 Billerica Road, Chelmsford, Massachusetts 01824
("Frontier").
WHEREAS, Cisco and Frontier entered into the Project Development and
License Agreement on July 13, 1994 ("Software Agreement") pursuant to which
Frontier licensed certain software products (as defined in the Software
Agreement) to Cisco; and
WHEREAS, Cisco and Frontier entered into the Private Label Agreement on
October 17, 1995 ("Hardware Agreement") pursuant to which Frontier would sell
certain products (as defined in the Hardware Agreement) to Cisco; and
WHEREAS, Cisco and Frontier desire to change and add certain terms to
the Software Agreement and Hardware Agreement to change pricing, add products
and to make such agreements more similar, all as specified below.
NOW THEREFORE, in consideration of the covenants and conditions
contained herein, the parties agree as follows:
1. PRODUCTS. Cisco shall have the right to purchase and resell any and all
Frontier products, both current and future (including, without limitation, all
consoles, probes, embedded agents and upgrades in the Frontier product line),
listed on Frontier's then current price list. Except as expressly and
unambiguously stated in the Software Agreement, the terms and conditions of the
sale of products by Frontier to Cisco shall be governed by the Hardware
Agreement. All products purchased by Cisco from Frontier shall be deemed
"Products" as defined in the Hardware Agreement. The parties agree that all
Products purchased or licensed by Cisco under the Hardware Agreement (including
all additional Products added by this Amendment) shall be subject to all the
terms and conditions of the Hardware Agreement.
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2. NETSCOUT MANAGER PRODUCT.
2.1 MANUFACTURING OF UNBOUNDED COPIES. Frontier agrees to manufacture
complete kits for copies of the NETscout Manager Product and private label such
Product as "TrafficDirector" as specified by Cisco (the "TrafficDirector
Product"). In addition, Frontier agrees to make and provide to Cisco all
documentation for the TrafficDirector Product as specified by Cisco. Frontier
will provide finished User Guides and executable copies of the TrafficDirector
Product in CD or electronic format for integration with other Cisco management
software. Frontier agrees that it shall only have the right to sell the
TrafficDirector Product to Cisco. In the event Cisco orders copies of the
TrafficDirector Product with temporary licenses (i.e. a minimum of 90 days),
Frontier agrees to mark the TrafficDirector boxes with the license expiration
date and the Cisco last ship date (which shall be 40 days before the temporary
license expiration date) as follows:
Example:
CISCO: LAST SHIP DATE
------------------------
TEMPORARY LICENSE EXPIRATION DATE
------------------------
Cisco agrees to pay Frontier a mutually agreed upon NRE charge for any
modifications and/or enhancements to the TrafficDirector documentation which
have resulted from a written request from Cisco. No substantive changes shall be
made to the documentation unless expressly agreed to/requested in writing by
Cisco.
2.2 NEW VERSIONS. Within 60 days after the release of a new version of
the NETscout Manager Product by Frontier, Frontier shall provide to Cisco a
TrafficDirector branded Product, at a mutually agreed upon [*], if any.
TrafficDirector version 3.3 will be based on NETscout Manager version 3.3.
TrafficDirector version 4.X will be based on NETscout Manager Plus, with the
switch management enhancements.
2.3 LICENSE FEES. Cisco shall pay Frontier for each copy of the
TrafficDirector Product purchased or licensed by Cisco as follows:
(a) if [*] in the [*] or any other Cisco product, the license
fee shall equal [*] of Frontier's [*]. A [*] will be due to Frontier 30 days
after product receipt. This amount will then be deducted from the license fee
payment due to Frontier;
[*]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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<PAGE>
(b) if sold as an unbundled/standalone product, the license
fee shall equal [*] of Frontier's [*]. A [*] will be due to Frontier 30 days
after product receipt. This amount will then be deducted from the license fee
payment due to Frontier;
(c) the license fee for [*] shall equal [*], per [*], for the
12 months following the signing of the amendment, [*] will be negotiated in good
faith within 30 days of the signing of the amendment;
(d) the license fee for customer evaluations shall equal [*],
provided that temporary licenses for a minimum of 90 days shall be free of
charge;
(e) the license fee for sales demonstration copies shall equal
[*] and shall have a license for 180 days or more.
(f) Frontier will provide Cisco with a record and invoice
within 7 days after the end of each Cisco fiscal quarter based upon Frontier's
Web page records. Cisco will have 7 days to reconcile the invoice to its own
records. Cisco will be obligated to pay Frontier within [*] after the invoice,
unless Cisco presents in writing records showing different sales levels. In this
event, [*] would make a [*] to resolve the [*] in 7 days and payment within 30
days.
2.4 TRADEMARK. Frontier acknowledges that Cisco retains any and all
rights, title and interest to the tradename, trademark, logo or mark
"TrafficDirector" ("Traffic Director Mark") and agrees not to take any action to
challenge any rights or efforts made by Cisco to register or use the
TrafficDirector Mark, nor will Frontier lodge any filings with respect to the
TrafficDirector Mark or marks confusingly similar to the TrafficDirector Mark,
whether on behalf of Cisco or in its own name or interest, without the prior
written consent of Cisco.
Cisco acknowledges that Frontier shall retain any and all rights, title and
interest to any tradenames, trademarks or trademark logos ("Frontier Marks") in
any documentation developed by Frontier pursuant to Section 2.1, above. Cisco
agrees not to make 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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<PAGE>
claims to Frontier Marks, or lodge any filings with respect to such Frontier
Marks or marks confusingly similar to Frontier Marks, whether on behalf of
Frontier or in its own name or interest, without the prior written consent of
Frontier.
2.5 Frontier agrees that Cisco has the right to purchase the
TrafficDirector Products as long as Cisco continues to remarket Frontier's
NETscout Probe Products.
3. SWITCHPROBE AGENTS AND EMBEDDED AGENTS.
3.1 MANUFACTURING. Frontier agrees to manufacture copies of the
Frontier SwitchProbe Product with the SwitchProbe Embedded Agent incorporated in
it for resale to Cisco pursuant to the Hardware Agreement.
3.2 LICENSE FEES. Exhibit D, Section 1, to the Software Agreement is
deleted and replaced with the following:
"Cisco agrees to pay to Frontier Software License Fees in accordance with the
following schedule:
[*] [*] per RMON license sold as a revenue unit by Cisco
[*] [*] per RMON license sold as a revenue unit by Cisco
[*] [*] per Resource Manager agent option license sold
as a revenue unit by Cisco
[*] [*] per Switch Monitor agent option license
(includes roving-RMON for all [*] models and
mini-RMON proxy support for the [*]series)
All Cisco platforms Agent upgrades and technical support for all
platforms will be provided under an annual
maintenance fee of [*]. Agent upgrades will
be delivered in a mutually agreed upon
format
[*]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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<PAGE>
3.3 PAYMENT TERMS. The payment terms for the license fees due under
this Section 3 shall be in accordance with Exhibit D of the Software Agreement.
3.4 SUPPORT. Frontier agrees to provide Cisco, at no additional charge,
hotline and technical engineering support for all Cisco network monitoring
products that use Frontier technology. Such support shall be subject to the
Customer Support requirements of Section 8.1 of the Hardware Agreement and the
Prioritization and Escalation Guidelines contained in Exhibit F of the Hardware
Agreement.
4. REVISED PRODUCT PRICES.
4.1 PRODUCTS. Exhibit A to the Hardware Agreement is deleted and
replaced with the new attached Exhibit A ("Revised Exhibit A"). Frontier agrees
that during the term of the Hardware Agreement and Software Agreement it shall
[*] its list price for hardware Products or for Software Products except in the
event of unexpected industry increases in [*] that increase the base cost of the
Product by [*] (this cost will be directly passed on without [*]) or in the
event Frontier adds significant additional functionality to a Software Product.
4.2 MOST FAVORED CUSTOMER PRICING. Frontier represents and warrants to
Cisco that the Product prices/license fees offered to Cisco under this Agreement
are no less favorable than the Product prices/license fees offered to any other
party purchasing or licensing similar quantities. In the event Frontier offers
more favorable Product prices/license fees to any other party, Frontier will
promptly notify Cisco of such event and offer such more favorable Product
prices/license fees to Cisco commencing upon the date such more favorable
Product prices/license fees were offered to the other party.
5. ESCROW. The parties agree that all Products purchased or licensed by Cisco
under the Hardware Agreement and the Software Agreement shall be subject to the
manufacturing and escrow requirements of Section 10 of the Hardware Agreement.
6. SUPPORT.
6.1 HARDWARE AGREEMENT. Section 8 of the Hardware Agreement is amended
to add the following support provisions:
[*]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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<PAGE>
"8.12 LICENSE TO USE OBJECT AND SOURCE CODE FOR CUSTOMER
SUPPORT. Pursuant to the License granted herein, Cisco is licensed to use the
Software source and/or object code for the limited purpose of providing customer
support, including, without limitation, the provision of software bug fixes,
patches and maintenance releases.
"8.13 SOFTWARE SUPPORT. Frontier will support no more than [*]
provided that these releases are no more than fifteen (15) months apart.
Software releases should be downward compatible and released at a mutually
agreed upon interval.
"8.14 PRODUCT SHIPMENT PROCEDURE. In case bug fixes cannot be
transferred electronically, Frontier will ship to Cisco, and customer, at
Cisco's discretion, two (2) copies of media (i.e., CD-ROM) containing the bug
fix. Such shipment will be by overnight delivery to Cisco at Cisco's expense.
"8.15 SUPPORT DOCUMENTATION. Frontier agrees to regularly
supply Cisco with all known bug notes or other documentation defining the
relevant hardware and software information, symptoms, solutions or work-arounds
for Product problems. Frontier will keep accurate records of Product
deficiencies (bugs) and make such reports available to Cisco at least quarterly.
Frontier will maintain an electronic means (e.g., an FTP server) through which
Cisco can obtain up-to-date information on bugs, fixes, and code updates. During
the term of this Agreement, Frontier will provide such support to Cisco at no
charge."
6.2 SOFTWARE AGREEMENT. The parties agree that Software products
licensed under the Software Agreement shall be subject to all the support
provisions of the Hardware Agreement.
7. ADDITIONAL FRONTIER OBLIGATION. Frontier agrees to maintain a World
Wide Web site for Software license password generation.
8. GENERAL. Section 17 (Limitation of Liability) of the Software Agreement
is deleted and replaced with Section 13 (Limitation of Liability) of the
Hardware Agreement. Further, any provisions of the Hardware Agreement covering
subject matter which are not included in the Software Agreement are hereby
included in the Software Agreement.
9. ENTIRE AGREEMENT. The "entire agreement" paragraph of Section 14 of the
Software Agreement is deleted and replaced with the following:
[*]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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<PAGE>
"This Agreement (including the Exhibits hereto) and the Private Label
Agreement entered into by Cisco and Frontier on October 17, 1995, 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 hereto."
10. NO OTHER CHANGES. Terms capitalized shall have the meaning assigned to
them in the Hardware Agreement and the Software Agreement. All other terms and
conditions of the Hardware Agreement and Software Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their duly authorized representatives.
CISCO SYSTEMS, INC. FRONTIER SOFTWARE
DEVELOPMENT, INC.
/s/ MARIO MAZZOLA /s/ NARENDRA POPAT
--------------------------------- ---------------------------------
Signature Signature
MARIO MAZZOLA NARENDRA POPAT
--------------------------------- ---------------------------------
Name Name
VICE PRESIDENT/GENERAL MANAGER - WBU PRESIDENT, FRONTIER SOFTWARE
------------------------------------ ---------------------------------
Title Title
5/15/96 5/15/96
--------------------------------- ---------------------------------
Date Date
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<PAGE>
REVISED EXHIBIT A
PRODUCTS/PRICING
---------------------------------------------------------------------
PRODUCT DISCOUNT
MODEL
NUMBER
---------------------------------------------------------------------
[*]
6010
6010E2
6020
6020T2
---------------------------------------------------------------------
When reference is made in the Agreement or any exhibit to Frontier's
published U.S. List Price of a Product specially modified for Cisco, such
reference shall mean Frontier's published U.S. List Price for Frontier standard
product upon which the Product has been based. If Frontier shall modify, update,
enhance or create a new version of a standard product upon which such a Product
is based, it shall similarly modify, update, enhance or create a new version of
the corresponding Product. Frontier will sell Products specially modified for
Cisco only to Cisco.
Except as specified above, the prices for all Products purchased by Cisco from
Frontier shall be:
(i) [*] discount off of Frontier's list price for all Frontier
hardware Products;
(ii) [*] discount off of Frontier's list price for all Frontier
software Products to be resold by Cisco unbundled;
(iii) [*] discount off of Frontier's list price for all Frontier
software Products to be resold by Cisco in a bundle.
[*]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.
8