IWL Subscription License Agreement

 InterWorking is willing to license the IWL Test Suite software identified in more detail in Exhibit A hereto (”Licensed Software”) to your company or organization only on the condition that you accept all of the terms in this Agreement.

PLEASE READ THE TERMS CAREFULLY. USING THE LICENSED SOFTWARE, YOU AGREE TO BE BOUND BY THIS LICENSE AGREEMENT. 

If you do not agree to these terms, InterWorking is unwilling to license the software to you. In such event, you may not use the licensed software, and you should promptly contact InterWorking Labs for instructions on returning it. 

NOTE: 

• THE LICENSED SOFTWARE IS LIMITED TO USE ON SPECIFIC CPU(s). SEE EXHIBIT B.

• THE LICENSED SOFTWARE IS FOR INTERNAL USE ONLY.

• THE LICENSED SOFTWARE CANNOT BE DISTRIBUTED TO OTHERS.

• THE TEST RESULTS FROM USE OF THE LICENSED SOFTWARE TESTS CANNOT BE USED OUTSIDE THE COMPANY OR ORGANIZATION.

• THE SOFTWARE AND ACCOMPANYING USER DOCUMENTATION ARE PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.

This License Agreement (the “Agreement”) is made as of the purchase date (the “Effective Date”), by and between InterWorking Labs, Inc., a California corporation that may be contacted at PO Box 66190, Scotts Valley, CA 95067  (”InterWorking”) and your company (””Licensee”).

RECITALS

A. InterWorking owns the rights to grant licenses to certain computer software modules used to test products and networks implementing certain networking protocols described in Exhibit A (”Networking Protocols”). 

B. InterWorking desires to grant and Licensee desires to receive a non-exclusive license for a limited period of time to such InterWorking computer software modules in accordance with the terms and conditions of this Agreement. 

NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows:

1. DEFINITIONS 

1.1 Extension Term means each additional subscription renewal period , which shall be for a period of one (1) year, for which this Agreement is extended pursuant to Section 6.

1.2 Initial Term means the initial license term (either one year or two years) specified in the Licensee Purchase Order accepted by InterWorking, commencing on the Effective Date.

1.3 Licensed Software means InterWorking’s computer software modules and documentation thereof, as specified in Exhibit A, including bug fixes and updates thereto provided to Licensee in connection with this Agreement. 

1.4 Intellectual Property Rights means patent rights, copyright rights, trade secret rights, and any other intellectual property rights.   1.5 Binary Code means the portion of the Licensed Software which is licensed to Licensee in machine executable binary form, as specified in Exhibit A. 

1.6 Source Code means the portion of the Licensed Software which is licensed to Licensee in human-readable form, as specified in Exhibit A. 

1.7 Subscription Term means the Initial Term and any Extension Term(s).

2. LICENSE GRANTS

2.1 Source Code Use License. Subject to the terms and conditions of this Agreement, and upon payment by Licensee to InterWorking of the subscription fees as set forth in Section 6.1, InterWorking grants Licensee a non-exclusive, non-transferable license during the Subscription Term to use, modify, or have modified by a third party contractor subject to a confidentiality agreement no less restrictive that this agreement, the Source Code for internal use only, for the sole purpose of testing and verifying computer network products for compliance with the Networking Protocols. Licensee may use the Source Code as specified in Exhibit B. Licensee agrees to comply with all reasonable monitoring requirements imposed by InterWorking to ensure compliance with the license restrictions. 

2.2 Binary Code Use License. Subject to the terms and conditions of this Agreement, and upon payment by Licensee to InterWorking of the license fees set forth in Section 6.1, InterWorking grants Licensee a non-exclusive, non-transferable license during the Subscription Term to use the Binary Code for internal use only, for the sole purpose of testing and verifying computer network products for compliance with the Networking Protocols. Licensee may use the Binary Code as specified in Exhibit B. Licensee agrees to comply with all reasonable monitoring requirements imposed by InterWorking to ensure compliance with the license restrictions. 

2.3 No Sublicense Right. Licensee has no right to transfer, sublicense or otherwise distribute the Licensed Software to any third party. 

2.4 Other Restrictions in License Grants. Licensee may not: (I) disassemble, decompile or reverse engineer the Binary Code nor permit any third party to do so; (ii) copy the Licensed Software, except as necessary to use the Licensed Software in accordance with the license granted under Sections 2.1 and 2.2, and except for a reasonable number of backup copies; or (iii) use the Licensed Software in any manner to provide testing or other computer services to third parties. 

2.5 No Trademark License. Licensee has no right or license to use any trademark of InterWorking or its suppliers during or after the term of this Agreement. In particular, and without limiting the foregoing, Licensee may not use any trademark of InterWorking or the names “InterWorking”, “InterWorking Labs” or “IWL”, without the prior written consent of InterWorking, in making any statement or representation concerning results of testing and verification performed using the Licensed Software. 

2.6 Proprietary Notices. The Licensed Software is copyrighted. All proprietary notices incorporated in, marked on, or affixed to the Licensed Software by InterWorking or its suppliers shall be duplicated by Licensee on all copies, in whole or in part, in any form and not altered, removed, or obliterated. 

2.7 Reservation. InterWorking and its suppliers reserve all rights and licenses to the Licensed Software not expressly granted to Licensee under this Agreement. 

2.8 Cable Modem Customers. Notwithstanding any of the limitations contained in this agreement, customer may use the licensed product for the limited purpose of providing results to CableLabs and/or to tComLabs for the purpose of certifying a cable modem product. Results shall only include the test number and the InterWorking test result code. Customer shall provide written notice to InterWorking at the time of execution of this Agreement if it is a Cable Modem Developer and will be using the product for these purposes. 

3. DELIVERY OF LICENSED SOFTWARE

Licensee may access the Licensed Software upon acceptance of this agreement. 

4. WARRANTIES

4.1 Limited Warranty. InterWorking warrants that during the thirty (30) day period following initial delivery of the Licensed Software to Licensee, the Licensed Software will operate substantially in accordance with its specifications as set forth in the user’ documentation in all material respects. In the event the Licensed Software fails to conform to such warranty during the warranty period, as Licensee’s sole and exclusive remedy, InterWorking will make diligent, reasonable efforts to provide Licensee with work-around solutions, error corrections and bug fixes upon receipt of written notice of non-compliance. 

4.2 Warranty Exclusion and Disclaimer. THE WARRANTY WITH RESPECT TO THE LICENSED SOFTWARE WILL BE VOID AND OF NO EFFECT IF LICENSEE MODIFIES THE SOURCE CODE. THE WARRANTIES SET FORTH IN SECTION 4.1 ARE IN LIEU OF, AND INTERWORKING EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, WRITTEN AND ORAL, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. INTERWORKING DOES NOT WARRANT THAT OPERATION OF THE LICENSED SOFTWARE WILL BE ERROR FREE. SOME MODULES OF THE LICENSED SOFTWARE ARE DERIVED FROM THIRD PARTY SOFTWARE AND NO SUCH THIRD PARTY WARRANTS THE MODULES, ASSUMES ANY LIABILITY REGARDING USE OF THE MODULES, OR UNDERTAKES TO FURNISH ANY SUPPORT OR INFORMATION RELATING TO THE MODULES. 

5. MAINTENANCE AND TECHNICAL SUPPORT

InterWorking will, at no additional charge to Licensee, provide Licensee with technical support and maintenance for the License Software during the Subscription Term in accordance with Exhibit C.

6. LICENSE FEE

6.1 Initial Subscription Fee. In consideration of the licenses granted in Section 2, above, Licensee shall pay InterWorking a non-refundable subscription fee for the Initial Term in accordance with InterWorking’s then current price list within thirty (30) days after the Effective Date. 

6.2 Extension Term Fee.  Subscription Fees for Extension Terms will be invoiced annually, thirty (30) days in advance of the anniversary of the Effective Date, in accordance with InterWorking’s then current price list. All such invoices are payable thirty (30) days from the receipt of the relevant invoice.

6.3 Taxes and Duties. In addition to the license and update fees set forth above, Licensee shall pay all sales, use, or other taxes and fees imposed as a result of payment of the fees set forth above, if any, other than taxes measured by InterWorking's net income. 

7. INTELLECTUAL PROPERTY RIGHTS

7.1 Title. All right, title and interest in and to the Licensed Software, and all Intellectual Property Rights embodied therein shall at all times remain with InterWorking or its suppliers, as applicable. 

7.2 Confidential Information. Licensee acknowledges and agrees that the Licensed Software contains confidential, proprietary information and trade secrets of InterWorking. For the longer of: (I) a period of five (5) years after the date of disclosure or (ii) the expiration or termination of this Agreement, Licensee shall not disclose or make available any portion of the Licensed Software or any information derived from the Licensed Software to any person or entity except to those of Licensee’s employees for whom access is necessary in order to perform their jobs in accordance with this Agreement. The standard of care Licensee must exercise to meet these obligations is the standard it exercises with respect to its own confidential information of a similar nature, but in no event less than due care. This obligation does not apply to information: (a) known by Licensee prior to its receipt from InterWorking and not subject to restriction on disclosure; (b) rightfully received by Licensee from a third party without restriction on disclosure; or (c) publicly available other than as a result of any act or omission of Licensee. 

7.3 Contractors. In the event that Licensee elects to have a third party contractor modify the Source Code pursuant to Section 2.1 above, Licensee will require such contractor to enter into a written confidentiality agreement with Licensee which (I) is no less restrictive than this Section 7, and (ii) requires such contractor to promptly deliver to Licensee all of InterWorking’s confidential information and the Source Code upon completion of such modifications and certify in writing to Licensee that it has delivered all such materials. 

8. LIMITATION OF LIABILITY

IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF INTERWORKING IN CONNECTION WITH THIS AGREEMENT FOR ALL CAUSES OF ACTION OF ANY KIND, INCLUDING THOSE BASED UPON CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), EXCEED THE LICENSE FEES RECEIVED BY INTERWORKING FROM LICENSEE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. IN NO EVENT WILL INTERWORKING OR ITS SUPPLIERS BE LIABLE FOR LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

9. TERM AND TERMINATION

9.1 Term. The term of this Agreement shall be for the Subscription Term, unless earlier terminated or cancelled in accordance with the provisions of this Agreement. At the end of the then-current Subscription Term, Customer payment of the Subscription Fee for the next Extension Term according to the terms of Section 6 above shall renew this Agreement and the Subscription Term for a new Extension Term. 

9.2 Termination. 

9.2.1 Material Breach. Either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure that breach within thirty (30) days after receiving written notice of the breach. Notwithstanding the foregoing, InterWorking may terminate this Agreement effective immediately upon written notice to Licensee without any cure period in the event of breach of confidentiality obligation herein. 

9.2.2 Financial Difficulties. Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party files a voluntary petition in bankruptcy or otherwise seeks protection under any law for the protection of debtors; has a proceeding instituted against it under any provision of the bankruptcy laws which is not dismissed within sixty (60) days; is adjudged to be bankrupt; has a court assume jurisdiction of its assets under a reorganization act; has a trustee or receiver appointed by a court for all or a substantial portion of its assets; becomes insolvent, suspends or ceases to do business; makes an assignment of all or a substantial portion of its assets for the benefit of its creditors; or admits in writing its inability to pay its debts as they become due. 

9.3 Effect of Termination/Expiration. Upon termination or expiration of this Agreement: (I) the rights and licenses granted to Licensee pursuant to this Agreement automatically terminate; (ii) Licensee shall, within thirty (30) days, ship to InterWorking or destroy (including the purging from any system or storage media) all items and information in Licensee’s possession that are confidential or proprietary to InterWorking or its suppliers, including but not limited to all Licensed Software and all copies thereof, if any, and an officer of Licensee shall certify in writing to InterWorking that all such confidential or proprietary items and information have been returned to InterWorking or destroyed; and (iii) all outstanding invoices for amounts owed to InterWorking by Licensee shall automatically accelerate and become due and payable on the effective date of termination. 

9.4 Survival. The provisions of Sections 2.5, 4.2, 7, 8, 9.3, 10.1, 10.6, 10.9 and 11 shall survive the expiration, cancellation, or termination of this Agreement. 

10. GENERAL PROVISIONS

10.1 Governing Law; Jurisdiction. This Agreement shall be governed by the internal laws of the State of California, excluding its conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods. The Superior Court of Santa Cruz County, California, and the United States Circuit Court for the Northern District of California located in San Jose, California shall be the exclusive jurisdiction, forum and venue for any and all claims, disputes, controversies or disagreements between the parties or any of their successors and assigns under or related to this Agreement, and the parties irrevocably consent to the personal and exclusive jurisdiction of such courts and waive any objections thereto... 

10.2 U.S. Export Controls. The Licensed Software is subject to United States export control requirements including those set forth in the Export Administration Act of 1979, as amended, and the Export Administration Regulations thereunder. 

10.3 Assignment. Licensee shall not assign this Agreement or any right hereunder, or delegate any obligation created under this Agreement to any third party without prior written consent of InterWorking. InterWorking, however, may assign this Agreement to any person or entity with which it has merged or which has otherwise succeeded to all or substantially all of the business and assets of InterWorking, and which has assumed in writing or by operation of law its obligations under this Agreement. Any attempted assignment or delegation without the required written consent shall be null and void. 

10.4 Modification. No modification to this Agreement nor any waiver of any rights shall be effective unless consented to in writing by the party to be bound and the waiver of any breach or default shall not constitute a waiver of any other right or of any subsequent breach or default. 

10.5 Force Majeure. Neither InterWorking nor any of its suppliers shall be liable for any loss, expense, or damage caused by delays or failures in performance resulting from acts of God, supplier delay, or any other cause beyond the reasonable control of InterWorking or its suppliers. 

10.6 Attorneys’ Fees. In the event of any dispute resolution proceeding between the parties, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees. A ”“prevailing party” shall mean a party who receives all or substantially all of the relief sought by such party. 

10.7 Severability. If any provision of this Agreement is ruled unenforceable, it shall be enforced to the extent permissible, the parties shall negotiate a substitute valid provision which most nearly effects the parties’ original intent, and the remainder of the Agreement shall remain in effect. 

10.8 Independent Contractor; Third Parties. The parties are each independent contractors and not joint venturers, partners, agents, or representatives of the other. Neither party has any right to create any obligation on the part of the other party. There are no third party beneficiaries to this Agreement except as expressly set forth with respect to InterWorking’s suppliers. 

10.9 Equitable Relief. Licensee acknowledges that any breach of its obligations under this Agreement with respect to the intellectual property rights or confidential information of InterWorking will cause InterWorking irreparable injury for which there are inadequate remedies at law, and therefore, InterWorking will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law. 

10.10 Notice. All notices and requests required or authorized hereunder, shall be given in writing either by personal delivery to the party to whom notice is given, or by registered or certified airmail, postage prepaid, return receipt requested. The date upon which any such notice is so personally delivered, or if the notice is given by registered or certified airmail, the date upon which it is received as set forth on the returned receipt, shall be deemed to be the date of such notice, irrespective of the date appearing therein. 

If to InterWorking : 

InterWorking Labs, Inc.  PO Box 66190 Scotts Valley, CA 95067 Attn:  Legal Department Phone:  831.460.7010 

If to Licensee: 

Per the information on the Purchase Order. 

The address of the parties may be changed by notice given in accordance with this section. 

11. ENTIRE AGREEMENT. 

This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof. All previous and contemporaneous discussions and oral and written agreements with respect to this subject matter are superseded by this Agreement. 

12. GOVERNMENT RESTRICTED RIGHTS NOTICE. 

The Licensed Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

EXHIBIT A

Networking Protocols

1. Simple Network Management Protocol

2. Management Information Base II

3. Remote Monitor Management Information Base

4. Printer Management Information Base

5. UPS Management Information Base

6. DOCSIS

7. MQTT Protocol

Licensed Software

IWL Test Suite, including APIs and Libraries

Binary Code- (C++ language executable) and Source Code- (implemented in the interpretive TCL/TK and/or Python language) and all documentation 

EXHIBIT B

Restrictions on Usage of the IWL Licensed Software:

Licensee may install and use on the licensed number of CPUs and for the Initial Term, as specified in Licensee's purchase order accepted by InterWorking, and any Extension Terms, as specified in the Agreement.

EXHIBIT C

Maintenance and Technical Support

1. DEFINITIONS

1.1 Error means a reproducible failure of the Licensed Software to perform in substantial conformity with the Licensed Software specifications set forth in the corresponding User’s Guide.   1.2 Major and Minor Enhancements means any major functional revision or minor release, update, modification or “bug fix” to the Licensed Software (designated by a renumbered release number such as 1.1 to 2.0) released by IWL during the Initial or Renewal Support Term. 

1.3 Support Times means the hours of each day and the days of each week set forth in Schedule 1 hereto. 

2.  SUPPORT

2.1  Support Services During the Subscription Term

IWL shall render the support services set forth in this section to Customer subject t Customer’s compliance with its obligations set forth in Section 4 and elsewhere in this Agreement. 

2.2 Services

The support services to be provided by IWL pursuant to this Agreement are as follows:   (a) Help Desk IWL will provide Customer with reasonable help desk assistance during the Support Times regarding the installation and implementation of the Licensed Software, and the identification, diagnosis and correction of Errors. IWL will attempt to resolve any support questions posed by Customer. If IWL determines that it would be appropriate to do so, IWL may defer resolution of a support question until a later time. At its discretion, IWL may provide Customer with help desk support during times other than the Support Time and/or beyond the maximum number of monthly usage limits at IWL’s then standard rates. Customer shall be responsible for paying charges for such additional help desk support. 

(b) Website Technical information  IWL will provide Customer with access to technical information via IWL’s website at https://iwl.com.

(c)  Enhancements IWL will provide Customer with copies of all Major and Minor Enhancements at no additional cost to Customer. 

2.3 Procedures for Error Correction Services

(a) Notification To obtain Error correction services, Customer must notify IWL immediately of any suspected Error and must provide IWL with reasonable detail of the nature of and circumstances surrounding the Error. 

(b) Remote Diagnostics IWL may perform remote diagnostics to determine the existence and nature of a Error. 

(c) Error Correction IWL will make reasonable commercial efforts to correct and resolve Errors that Customer reports to IWL and which IWL is able to reproduce. Customer will promptly provide IWL with all information requested by IWL to reproduce such Errors. For each such Error, IWL will use reasonable commercial efforts to provide Customer with a work-around, a software patch or, if IWL is unable to provide Customer with either of the foregoing, a specific action plan for addressing the Error, including a good faith estimate of the time required to correct and resolve such Error. 

2.4 Response Times

IWL will use reasonable commercial efforts to communicate with Customer, by telephone or e-mail, within the following targeted response times, regarding Errors that Customer reports to IWL during the Support Times; for purposes of this Agreement, a “response” means IWL’s acknowledgment of an Error, and does not necessarily mean that a resolution will be achieved. 

ERROR PRIORITIES AND RESPONSE TIMES: 

PriorityStatusFailure DescriptionResponse Time1FatalLicensed Software not operational.1 Working Day2Severe Impact (functionality disabled)Errors that result in a lack of Licensed Software functionality or that cause intermittent system failure.1 Working Day3Degraded OperationsErrors that cause non-critical Licensed Software features consistently to malfunction.3 Working Days4Minimal ImpactErrors that cause attributes and/or options of utility programs not to operate in accordance with specifications.Next Licensed Software release

2.5 Limitations on IWL’s Support Obligations Notwithstanding anything to the contrary elsewhere in this Agreement, IWL will have no obligation to provide any support services to Customer if: 

(a) Such support relates to or involves any products, data, features, devices or equipment not provided by IWL; 

(b) Customer or a third party has altered or modified any portion of the Licensed Software in any manner without the prior written consent of IWL; 

(c) Customer has not installed or used the Licensed Software in accordance with instructions provided by IWL; 

(d) Customer has failed to replace earlier versions of the Licensed Software with Enhancements provided to Customer; 

(e) A party other than IWL (or a party authorized by IWL) has serviced the Licensed Software and the Licensed Software no longer conforms to its specifications; or 

(f) Customer is not in full compliance with the other terms of this Agreement, the terms of the License Agreement, or any other agreement between IWL and Customer. 

2.6 No Hardware Support

IWL’s support obligations under this Agreement shall not include electrical work, telephone line work, interconnection work, or the installation or repair of accessories, alterations, parts or devices not furnished by IWL. 

2.7 Additional Services In its discretion

IWL may provide Customer with additional support services for the Licensed Software not otherwise covered under this section or specifically excluded pursuant to Section 2.4 above, provided that Customer pays IWL for such service at IWL’s then standard hourly and expense reimbursement rates. Except to the extent specifically otherwise provided in this Agreement, such support service is not included within the terms of this Agreement. 

3. CUSTOMER’S OBLIGATIONS

3.1 Access

Customer will provide IWL with detailed problem reports and information on how to reproduce the reported problem, in so far as this is possible, to enable IWL to meet its support obligations as set forth in this Agreement

3.2 Support Contact

Customer shall designate one employee and one alternate as its ”“Support Contacts” to be generally available during the Support Times to confer with IWL regarding Errors and other support-related issues. Customer’s Support Contacts are identified in Schedule 1. Customer shall notify IWL immediately of any changes in the persons designated as Support Contacts. IWL will provide technical support only to Customer’s Support Contacts. 

3.3 Miscellaneous Items

Customer shall bear all costs associated with procuring, installing, and maintaining all equipment, telephone lines and communications interfaces necessary for Customer to obtain IWL support services. 

SCHEDULE 1
Support Times and Support Contact 

A. Support Times

The Support Times as provided in Section 2.6 are as follows:

Monday through Friday

10:00 a.m. through 8:00 p.m. (Pacific Time), excluding the following holidays:

New Year’s Day; Memorial Day; Independence Day; Labor Day; Thanksgiving Day; Day after Thanksgiving; and Christmas week. 

B. Support Contact

The Customer’s Support Contact (as required by Section 4.3), and his/her location, phone number, and e-mail address are on file.