{"id":42621,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/oem-license-agreement-sonic-systems-inc-and-com21-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"oem-license-agreement-sonic-systems-inc-and-com21-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/oem-license-agreement-sonic-systems-inc-and-com21-inc.html","title":{"rendered":"OEM License Agreement &#8211; Sonic Systems Inc. and Com21 Inc."},"content":{"rendered":"<pre>\n                             OEM License Agreement\n                                    Between\n                  Sonic Systems, Inc. and Com21, Incorporated\n\nTHIS AGREEMENT is entered into between Sonic Systems, Inc., a California\ncorporation principally located at 5400 Betsy Ross Drive, Suite 206, Santa\nClara, CA 95054 ('Sonic'), and Com21, Incorporated, a California corporation\n                  -----                                                     \nlocated at 750 Tasman Drive, Milpitas, CA 95035 ('Com21'), and is made as of\n                                                  -----                     \nthis ______ day of ________________, 1999 ('Effective Date').\n\n                                  Background\n                                  ----------\n\nSonic will provide to Com21 an object code license of the software to a 16-user\nversion of Sonic's SonicWALL Internet Security Appliance.  Com21 will integrate\nthe object code into one or more of its cable modem products.\n\n1.   Definitions\n     -----------\n     \n     Channel Partners.  'Channel Partners' shall mean any third party authorized\n     ----------------                                                           \nby Com21 to resell the Licensed Software and includes, but is not limited to,\ndistributors, resellers, value-added resellers, system integrators, and OEMs.\n\n     Confidential Information.  'Confidential Information' means any data or\n     ------------------------                                               \ninformation, oral or written, which a party reasonably should understand to be\nconfidential that relates to either Party's (or, if either Party is bound to\nprotect the confidentiality of any other person's information, such other\nperson's) past, present, or future research, development, or business\nactivities, including any unannounced Licensed Software or products and\nservices, and including any information relating to services, developments,\ninventions, processes, plans, financial information, customer and supplier\nlists, forecasts, and projections.  Confidential Information also includes the\nterms of this Agreement.  Notwithstanding the foregoing, Confidential\nInformation is deemed not to include information that (i) is publicly available\nor in the public domain at the time disclosed; (ii) is or becomes publicly\navailable or enters the public domain through no fault of the Party receiving\nsuch information; (iii) is rightfully communicated to the recipient by persons\nnot bound by confidentiality obligations with respect thereto; (iv) is already\nin the recipient's possession free of any confidentiality obligations with\nrespect thereto (excluding, however, any copies of the Licensed Software that\nmay be in Com21's possession prior to the date of this Agreement); (v) is\nindependently developed by the recipient; (vi) is approved for release or\ndisclosure by the disclosing Party without restriction; or (vii) is required to\nbe disclosed or is disclosed pursuant to the order or requirement of a court,\nadministrative agency, or other governmental body; provided, however, that the\nrecipient shall provide prompt notice thereof to the disclosing Party to enable\nthe disclosing Party to seek a protective order or otherwise prevent or restrict\nsuch disclosure.\n\n     Deliverables.  'Deliverables' shall mean the items listed in Exhibit A.\n     ------------                                                           \n\n     Derivative Works.  'Derivative Works' means programming or design changes\n     ----------------                                                         \nmade to the Licensed Software.\n\n                                       1\n\n \n     Documentation.  'Documentation' shall mean the user manual associated with\n     -------------                                                             \nthe Licensed Software.\n\n     End User.  'End User' means end user customers located within the Territory\n     --------                                                                   \nwho receive OEM Products containing the Licensed Software.\n\n     'End User Agreement' shall mean an agreement, in printed or electronic\n      ------------------                                                   \nform, between Com21 and an End User substantially in the form and no less\nrestrictive than the agreement attached hereto as Exhibit E.\n\n     Enhancements.  'Enhancements' means any modification or addition that, when\n     ------------                                                               \nmade or added to the Licensed Software, materially changes its utility,\nefficiency, functional capability, or application, but that does not constitute\nsolely an Error Correction.  Enhancements may be designated by Sonic as minor or\nmajor, depending on Sonic's assessment of their value and of the function added\nto the preexisting Licensed Software.\n\n     Error.  'Error' means the failure of the Licensed Software to conform in\n     -----                                                                   \nall material respects to its functional specifications as published from time to\ntime by Sonic, the current version of which is attached as Exhibit C hereto.\nHowever, any nonconformity resulting from Com21's or its customers' material\nmisuse, improper use, or alteration of the Licensed Software is not an Error.\n\n     Error Correction.  'Error Correction' means either a modification or an\n     ----------------                                                       \naddition that, when made or added to the Licensed Software, establishes material\nconformity of the Licensed Software to its Specifications.\n\n     First-Tier Support.  'First-Tier Support' shall mean technical support of\n     ------------------                                                       \nthe Licensed Software or OEM Products directly to End Users.\n\n     Licensed Software.  'Licensed Software' means a 16-user version of the\n     -----------------                                                     \nfirmware developed by Sonic for its SonicWALL product family in machine\nexecutable, object code format and includes all Documentation, Software,\nEnhancements, Error Corrections, Modifications, Licensed Upgrades, and Releases\nSonic makes available to Com21 hereunder.\n\n     Licensed Upgrades.  'Licensed Upgrades' shall mean any upgrade for the\n     -----------------                                                     \nLicensed Software for which there is a defined upgrade price in Exhibit B and\nfor which Sonic will provide to Com21 a software upgrade key to enable such\nupgrade.\n\n     Modifications.  'Modifications' means any changes to the Licensed Software\n     -------------                                                             \nmade by Sonic.\n\n     NRE.  'NRE' means non-recurring engineering.\n     ---                                         \n\n     OEM Product License.  'OEM Product License' means the license set forth\n     -------------------                                                    \nbelow in Section 2.1 of this Agreement.\n\n     OEM Products.  'OEM Products' shall mean any product or service produced by\n     ------------                                                               \nCom21 that includes all or a portion of the Licensed Software.\n\n                                       2\n\n \n     Options.  'Options' shall mean Licensed Software add-ons that may be made\n     -------                                                                  \navailable to customers from time to time for an additional charge.\n\n     Party or Parties.  'Party' or 'Parties' means Sonic or Com21, as\n     ----------------                                                \napplicable, or both Sonic and Com21 as parties to this Agreement.\n\n     Prices.  'Prices' shall mean the Prices listed in Exhibit B.\n     ------                                                      \n\n     Releases.  'Releases' means new versions of the Licensed Software, which\n     --------                                                                \nmay include, without limitation, Error Corrections, Enhancements, and\nModifications.\n\n     Second-Tier Support.  'Second-Tier Support' shall mean technical support of\n     -------------------                                                        \nthe Licensed Software or OEM Products directly to Channel Partners.\n\n     Severity I Bug.  'Severity I Bug' shall mean any demonstrable Error in the\n     --------------                                                            \nLicensed Software that (i) causes the Licensed Software to have a significant\nloss of intended function as set forth in the applicable Specifications; (ii)\ncauses or is likely to cause data to be lost or destroyed; or (iii) prevents the\nLicensed Software from being installed or executed on the properly configured\nenvironment.\n\n     Specifications.  'Specifications' shall mean the specifications for the\n     --------------                                                         \nLicensed Software set forth on Exhibit A, Exhibit C, and as otherwise mutually\nagreed upon by the Parties in writing.\n\n     Third-Tier Support.  'Third-Tier Support' shall mean technical support of\n     ------------------                                                       \nthe Licensed Software directly to Com21.\n\n     Territory.  The 'Territory' is the world, subject to the export\n     ---------                                                      \nrestrictions covered in Section 10.1.\n\n2.   Rights and Restrictions\n     -----------------------\n\n     2.1  License Grants. Sonic hereby grants to Com21 a non-exclusive,\n          -------------- \nworldwide right to reproduce the Documentation and to use, support, sublicense,\nand distribute object code versions of the Licensed Software only when\nincorporated as part of the OEM Products. Com21 does not have right to transfer\nor assign this OEM Product License to any third party except as permitted under\nSection 11.8 below.\n\n     2.2  Use of Trademarks\/Logos.  No license is granted to Com21 to use any\n          ----------------------- \nSonic trademarks, service marks or logos, or those trademarks or logos of any of\nSonic's OEMs without the prior, express written permission of Sonic.\n\n     2.3  Ownership of Intellectual Property in Licensed Software.  The Sonic\n          -------------------------------------------------------            \nLicensed Software, including any associated intellectual property rights and\/or\nDerivative Works, are and remain the sole property of Sonic regardless of\nwhether Com21, its employees, or contractors may have contributed to the\nconception of such work, joined in the effort of its development, or paid Sonic\nfor the use of the Licensed Software.  Com21 shall from time to time take any\nfurther action and execute and deliver any further instrument, including\ndocuments of assignment or \n\n                                       3\n\n \nacknowledgment, that Sonic may reasonably request in order to establish and\nperfect its exclusive ownership rights in such works, including any associated\nintellectual property rights.\n\n     2.4  Software License Restrictions.  Com21 shall not reverse compile or\n          -----------------------------                                     \ndisassemble object code versions of the Licensed Software or otherwise create,\nattempt to create, or knowingly permit or assist others to create a source code\nof the Software.\n\n     2.5  Proprietary Notices.  Com 21 and its employees and agents shall not\n          -------------------\nremove or alter any trademark, trade name, copyright, or other proprietary\nnotices, legends, symbols or labels appearing on or in copies of the Licensed\nSoftware delivered to Com21 and shall use the same notices, legends, symbols, or\nlabels in and on all copies of the Licensed Software made by Com21. Each portion\nof the Derivative Works thereof shall include the intellectual property notice\nor notices appearing in or on the corresponding portion of such materials as\ndelivered by Sonic hereunder.\n\n     2.6  Enforcement of Channel Partner and End User Agreements.  Com21 shall\n          ------------------------------------------------------    \nuse commercially reasonable efforts to enforce all agreements it enters into\nwith any authorized distributor or reseller under which such distributor or\nreseller distributes or resells any OEM Products that contain the Licensed\nSoftware. Each such agreement shall contain provisions requiring any such\ndistributor or reseller to provide Com21 with reasonable assistance in enforcing\nthe End User Agreements, and Com21 shall use commercially reasonable efforts to\nensure the End Users materially comply with such End User Agreements. Com21\nshall use commercially reasonable efforts to protect all copyrights related to\nthe Licensed Software and Documentation, and shall notify Sonic of any breach of\na material obligation under any of Com21's applicable distribution and\/or\nreseller agreements or of any End User License Agreement of which Com21 becomes\naware, and will cooperate with Sonic in any legal action to prevent or stop\nunauthorized use, reproduction or distribution of the Licensed Software.\n\n     2.7  Temporary Exclusivity.  Sonic agrees not to enter into OEM License\n          ---------------------                                             \nAgreements with other companies specifically to integrate current SonicWALL\ntechnology with their cable modem products for a period of [*] months from\nFirst Customer Ship of the Com21 Product.  As Sonic develops new technology,\nCom21 will have 30 days after its release by Sonic to determine if Com21 would\nlike to license it.  If Com21 so chooses to enter into an agreement with Sonic\nfor the new technology, then this section 2.7 will be incorporated into that\nagreement granting temporary exclusivity for a period of [*] months\nfollowing the effective date of the new agreement associated with the licensing\nof the new technology.\n\n     2.8  Price Guarantee.  Once the temporary exclusivity expires as per\n          ---------------   \nsection 2.7, should Sonic enter into an agreement materially identical to this\nAgreement with another company who specifically intends to integrate the same\nSonic technology into a cable modem product, Com21 shall receive the same annual\nlicense and per unit royalty fees as that company if the pricing is lower than\nis specified in this Agreement and annual quantity commitments are the same as\nthis Agreement. In the event a price decrease is granted to Com21, it shall be\nin effect from the Effective Date of the agreement Sonic signs with the other\ncompany and under no circumstances shall be retroactive.\n\n                                       4\n\n \n3.   Consideration\n     ------------- \n\n     3.1  Purchase from Sonic.  A per unit software royalty fee shall be owed by\n          -------------------                                                   \nCom21 to Sonic for each OEM Product unit shipped, net of returns. However, Com21\nshall be able to ship up to [*] OEM Product beta units (non-revenue producing\nunits) prior to First Customer Ship without having to pay this fee to Sonic.\nCom21 shall also be able to ship a quantity of MDU ('Marketing Demonstration\nUnits') OEM Product with no per unit royalty fee owed to Sonic as long as Com21\ndoes not receive revenue for those units. Should Com21 eventually receive\nrevenue from beta or MDU, then Com21 shall owe the associated per unit royalty\nto Sonic. During the term of this Agreement, the Parties agree to a maximum MDU\nquarterly quantity not to exceed [*] of that quarter's revenue producing OEM\nProduct unit shipments. If a customer does not purchase the beta or MDU units\nfrom Com21, no per unit fee for those units shall be owed to Sonic. In addition,\nCom21 shall pay an annual software license fee. These fees are listed in Exhibit\nB.\n\n     3.2  Terms of Purchase.\n          ----------------- \n\n          (a)  Per Unit Software Royalties: Payment of royalties shall be net 30\n               ---------------------------\ndays after the end of each calendar quarter for software royalties owed for\nshipments of OEM Product that quarter.\n\n          (b)  Annual License Fee: Fifty-percent (50%) of the [*] annual\n               ------------------          \nlicense fee or [*] is due upon delivery of the Object Code to Com21. The\nremaining fifty-percent (50%) shall be due upon Com21 beta release of the OEM\nProduct or upon acceptance of the deliverables specified in Exhibit D, whichever\ncomes first. Thereafter, the 50% of the full annual license fee shall be due\nannually on the Agreement anniversary date and the remaining 50% on the\nanniversary date of the first year's second payment. The Parties agree that the\npayment for year two is guaranteed, except in the event Sonic materially\nbreaches and does not cure per the terms in Section 9.2 of this Agreement, and\nwill be made by Com21 to Sonic.\n\n\n     (c)  NRE:  Applicable NRE fees are due upon execution of this Agreement.\n          ---                                                                \n4.   Upgrade License Accounting Reports and Audit Rights\n     ---------------------------------------------------\n\n     4.1  Accounting Reports. Com21 shall maintain an accurate list of OEM\n          ------------------     \nProducts and Licensed Upgrades shipped based on the OEM Products' serial number\nfor a period of three (3) years after such OEM Products or Licensed Upgrade\nship. Within fifteen (15) days after the end of each calendar quarter, Com21\nshall complete and submit to Sonic a detailed report setting forth all sales of\nthe OEM Product, software royalties, and Licensed Upgrades during such calendar\nquarter and remit to Sonic the appropriate license, royalty, or other fee\npayments due based on such report. If necessary and at Sonic's discretion, Com21\nshall allow a mutually agreed upon third party auditor to review Com21 records\nassociated with such OEM Products and\/or Licensed Upgrades per the Audit Rights\nin Section 4.2 below.\n\n     4.2  Audit Rights.  Sonic has the right to direct a mutually agreed upon\n          ------------ \nthird party auditor to conduct, during normal business hours and upon reasonable\nprior written notice to Com21, an audit of the appropriate records of Com21 to\nverify the accuracy of Com21's reports to Sonic; provided, that (i) such third\nparty auditor shall have executed a nondisclosure\n\n                                       5\n\n \nagreement satisfactory to Com21 under which the auditor shall agree to keep\nconfidential and not to disclose to third parties confidential information to\nwhich the auditor is given access, as well as to disclose to Sonic only such\ninformation provided to the auditor by Com21 as is relevant to the audit\nconducted, and (ii) Sonic shall conduct no more than one (1) such audit during\nany twelve (12) month period. Such audit shall be at Sonic's expense, unless the\nadjustment to the Licensed Upgrade or other fees owing from Com21 is greater\nthan five-percent (5%) of fees reported by Com21, in which case Com21 shall pay\nall expenses associated with the audit. Within ten (10) days after receipt of\nnotice from Sonic, Com21 shall remit to Sonic all amounts found in any such\naudit to be due to Sonic and not previously paid by Com21.\n\n5.   Customization and Deliverables\n     ------------------------------\n\n     5.1  Customization.  Sonic agrees, for any applicable NRE charges to Com21\n          -------------     \nas specified in Exhibit B, to make specific minor modifications to Sonic's\npreexisting Licensed Software as set forth on Exhibit A.\n\n     5.2  Deliverables.  The Deliverables are fully described in Exhibit A\n          ------------      \nattached. Sonic will deliver all Deliverables to Com21 in accordance with the\nschedule set forth on Exhibit D. Com21 will have the right to test the\nDeliverables for a period of ten (10) working days following Com21's receipt of\nsuch Deliverables to determine whether the Deliverables conform to the\nSpecifications. If Com21 determines the Deliverables fail to conform to the\nSpecifications, Com21 will notify Sonic, and Sonic will use its best efforts to\ncorrect such defect within ten (10) working days. At the end of this period,\nSonic will submit the corrected Deliverables to Com21 for acceptance by Com21\nunder this Section 5.2. The procedure set forth in this Section 5.2 will repeat\nuntil Com21 either accepts or permanently rejects the Deliverables.\n\n6.   Support Obligations, Licensed Software Updates, and Licensed Software\n     ---------------------------------------------------------------------     \n     Upgrades\n     --------  \n     6.1  Scope of Services.  During the term of this Agreement, Sonic shall\n          -----------------\nrender certain services in support of the Licensed Software, during Sonic's\nnormal working hours (Monday through Friday, 9 a.m. to 5 p.m., PST, excluding\nholidays).\n\n          (a)  Sonic shall maintain a trained staff capable of rendering the\n     services set forth in this Agreement.\n\n          (b)  Com21 shall provide First-Tier Support and Second-Tier Support.\n\n          (c)  Sonic shall provide only Third-Tier support. Under no\n     circumstances shall Sonic be obligated to directly support a Com21 Channel\n     Partner or an End User of the Licensed Software.\n\n     6.2  Updates and Upgrades.  During the term of this Agreement, Sonic, at\n          -------------------- \nits own discretion, shall release Licensed Software updates and upgrades and\nshall make such updates and upgrades available to Com21. Sonic shall not charge\nCom21 for such upgrades or updates unless Sonic generally charges its customers\nfor such upgrades and updates.\n\n          (a)  Sonic is responsible for using all reasonable diligence to\ncorrect verifiable and reproducible Errors when reported to Sonic by Com21 in\naccordance with Sonic's standard\n\n                                       6\n\n \nreporting procedures. Sonic shall, within two (2) days of verifying that such an\nError is present, initiate work in a diligent manner toward development of an\nError Correction. Following completion of the Error Correction, Sonic shall make\nsuch Error Correction available to Com21 and shall include the Error Correction\nin all subsequent Releases of the Licensed Software. Sonic shall not be\nresponsible for correcting Errors in any version of the Licensed Software other\nthan the most recent Release of the Licensed Software.\n\n          (b)  Sonic may, from time to time, issue new firmware releases of the\nSoftware at no cost to its customers generally, containing error corrections,\nminor Enhancements, and, in certain instances if Sonic so elects, major\nEnhancements. These new releases shall be provided to Com21 at no additional\ncharge as new Com21 versions (which replace prior Com21 versions, as customized\nby Sonic for Com21 hereunder pursuant to Section 5) within 30 days after the\ngeneral release.\n\n          (c)  Sonic may, from time to time, offer major Enhancements and\/or\nOptions to customers generally for an additional per unit charge. Com21, at its\ndiscretion, may choose to purchase and resell these major Enhancements and\/or\nOptions to its customers.\n\n          (d)  Sonic shall consider and evaluate the custom development of\nEnhancements for the specific use of Com21 and shall respond to Com21's requests\nfor additional services pertaining to the Licensed Software (including, without\nlimitation, graphical user interface modifications, new custom functionality,\nand formatting assistance), provided that such assistance, if agreed to be\nprovided, is subject to supplemental NRE charges and support fees mutually\nagreed to by Sonic and Com21. The Parties shall negotiate in good faith for\nSonic to accommodate Com21 customization requests and the associated NRE fee,\nbut Sonic may decline the request due to lack of available engineering\nresources, scheduling conflicts, or the nature of the requested customization.\n\n\n          (e)  Sonic shall make its best effort to fix Severity I Bugs within 5\nworking days, and other bugs within 15 working days. The Parties acknowledge\nthat due to the unpredictable nature of future bugs, Sonic can not be expected\nto absolutely deliver the fixes within the specified time frames in every case.\n\n7.   Title and Confidentiality\n     -------------------------\n\n     7.1  Title.  The Licensed Software is and remains at all times the property\n          -----\nof Sonic, and Com21 has no right, title, or interest therein, except such\nlicense rights expressly set forth in this Agreement. Com21 acknowledges that\nneither Com21 nor any Com21, Channel Partner, or End User acquires any rights of\nownership in the Licensed Software by virtue of this Agreement. At the request\nof Sonic, Com21 will cause the execution of any instruments that may be\nappropriate to perfect Sonic's exclusive ownership rights in the Licensed\nSoftware. Except as expressly contemplated by this Agreement, Com21 shall not\ndisclose, copy, or otherwise disseminate the Licensed Software, or any part\nthereof, to any third person or entity.\n\n     7.2  Confidentiality.  During the course of performance of this Agreement,\n          ---------------\nand thereafter, either Party may disclose certain Confidential Information to\nthe other Party. The Party receiving any such Confidential Information shall\nmaintain the confidentiality of such\n\n                                       7\n\n \nConfidential Information and shall not use, disclose, or otherwise exploit any\nConfidential Information for any purpose not expressly contemplated by this\nAgreement.\n\n8.   Representation and Warranties\n     -------------------------------    \n\n     8.1  Corporate Power and Title.  Sonic is a corporation duly organized,\nvalidly existing and in good standing under the laws of the State of California,\nand has full corporate power and authority to enter into this Agreement. In\naddition, Sonic has good and marketable title to all of the Licensed Software,\nfree and clear of restrictions on or conditions to the license, transfer or\nassignment of the Licensed Software.\n\n     8.2  Intellectual Property Infringement. No person has made a claim against\n          ----------------------------------    \nSonic that any of the Licensed Software infringes any patent, copyright, or\nproprietary process of interest of another, and Sonic does not require rights\nunder any patent, copyright (or any application or registration respecting any\nthereof), discovery, improvement, process, formula, know-how, data, plan,\nspecification, drawing or the like belonging to another. Finally, Sonic\nrepresents and warrants that the Licensed Software does not and shall not\ninfringe any patent rights, copyright rights, mask-work rights, trade secret\nrights or other intellectual property rights of any third party.\n\n     8.3  Warranty. Sonic represents and warrants that the Licensed Software\n          --------\nwill perform in accordance with all specifications therefor, all Documentation,\nand for the uses contemplated hereunder and be substantially free of errors in\noperation for a period of twelve (12) months after the date of delivery by\nSonic. In the event the Licensed Software is found to be modified (except as\nspecifically permitted under this Agreement), tampered with, or misused, this\nwarranty shall not apply to the extent the failure of the Licensed Software to\nfunction as warranted is the result of such modification, tampering, or misuse.\n\n     8.4  Limitation of Warranty.  EXCEPT AS SET FORTH IN THIS SECTION 8, SONIC\n          ----------------------                                               \nDISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT\nLIMITATION, ANY WARRANTIES AS TO THE SUITABILITY OR MERCHANTABILITY OR FITNESS\nFOR ANY PARTICULAR PURPOSE.\n\n     8.5  Indemnification by Sonic.  Except to the extent Com21 indemnifies\n          ------------------------\nSonic pursu ant to Section 8.6 below, and except to the extent that any claims\narise from Com21's negligence or willful misconduct, Sonic agrees to indemnify\nand hold harmless Com21, its successors and assigns, officers, directors,\nemployees and customers (collectively, 'Indemnitees'), from and against any and\n                                        -----------\nall claims and causes of action arising out of any claims of any third parties\nwith respect to Sonic's breach of any of its representations, warranties or\ncovenants contained in this Agreement; provided that Sonic receives prompt\nwritten notice of and has sole control over the defense and settlement of such\nclaims and actions. Sonic shall pay all costs, expenses and reasonable attorneys\nfees incurred by Com21 in connection with any such defense unless Com21 chooses\nto defend itself, in which case it would be at Com21's own cost. In the event of\nany such claim or suit, unless Com21 chooses to defend itself at its own cost,\nSonic shall have the right to select counsel and the right to control the\ndefense and settlement of such suit or claim. Sonic further agrees to indemnify\nand save harmless Indemnitees from all claims or causes of action based upon\ndefective design, manufacture, or a failure of the Licensed\n\n                                       8\n\n \nSoftware to perform according to their specifications. This indemnity shall not\nexpire upon termination of this Agreement, but shall remain in force and effect\nthereafter.\n\n     8.6  Indemnification by Com21.  Except to the extent Sonic indemnifies\n          ------------------------\nCom21 pursuant to Section 8.5 above, and except to the extent that any claims\narise from Sonic's negligence or willful misconduct, Com21 agrees to indemnify\nand hold harmless Sonic from any losses from claims of personal injury arising\nfrom Com21's sale and distribution of the Licensed Software, or from its breach\nof any representations, warranties or covenants contained in this Agreement.\nCom21 shall pay all costs, expenses and reasonable attorneys fees incurred by\nSonic in connection with any such defense, unless Sonic chooses to defend\nitself. This indemnity shall not expire upon termination of this Agreement, but\nshall remain in force and effect thereafter.\n\n     8.7  Limitation of Liability.  Except with respect to Sonic's\n          -----------------------\n          indemnification obligations under Section 8.5 above, the maximum\n          cumulative liability owed by Sonic to Com21 hereunder shall be limited\n          to the total amount paid by Com21 to Sonic as of the date a court\n          makes a final determination in the matter in question. Except for\n          claims which arise from the willful misconduct of Com21 or Com21's\n          employees, officers, or agents, the maximum cumulative liability owed\n          by Com21 to Sonic hereunder above shall be limited to the total amount\n          received by Sonic from Com21 as of the date a court makes a final\n          determination in the matter in question. As used in this section 8.7,\n          a `final determination' is the date no further appeal is possible in\n          the action at issue. EXCEPT TO THE EXTENT AWARDED IN ANY ACTION\n          ALLEGING INTELLECTUAL PROPERTY INFRINGEMENT WITH RESPECT TO WHICH\n          SONIC IS OBLIGATED TO INDEMNIFY COM21 UNDER SECTION 8.5 ABOVE, NEITHER\n          PARTY SHALL HAVE ANY LIABILITY TO THE OTHER FOR INCIDENTAL, INDIRECT,\n          SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES UNDER ANY CONTRACT,\n          NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY.\n\n9.   Term &amp; Termination\n     ------------------ \n\n     9.1  Term.  Subject to Section 9.2, the term of this Agreement begins on\n          ----\nthe Effective Date and shall continue for a period of 2 years, provided that\nthis Agreement shall then automatically renew for successive one year terms,\nunless either Party gives the other Party thirty (30) days' written notice prior\nto the expiration of the then-current term of such Party's intent to terminate\nthis Agreement.\n\n     9.2  Termination.  Either Party may terminate this Agreement in the event\n          ------------\nthe other Party is in material breach of this Agreement (including any failure\nto timely pay amounts owed to a Party) and the breaching Party fails to cure\nsuch breach within thirty (30) days following its receipt of written notice of\nsuch breach from the other Party; provided, however, that the 30-day cure period\nis shortened to a period of five (5) days in the event Com21 is in breach of any\nterms of this Agreement pertaining to the confidentiality, reproduction of\ncopyright and other notices, or in the event Sonic is in breach of any terms of\nthis Agreement pertaining to confidentiality of Com21's Confidential\nInformation.\n\n                                       9\n\n \n     9.3  Default.  The following are events of default:\n          -------                                       \n\n          (a)  Failure to Pay or Breach.  If either Party is in default of any\n               ------------------------\nmaterial term or condition hereunder and such default continues for thirty (30)\ndays following written notice thereof by the non-breaching Party; or\n\n          (b)  Insolvency, Assignment or Bankruptcy. If either Party is in\n               ------------------------------------\nmaterial default of its obligations to its vendors or suppliers, becomes\ninsolvent, files or has filed against it a petition under any Bankruptcy Law\n(which, if involuntary, is unresolved after sixty days).\n\n     9.4  Return of Confidential Information.  Upon termination of this\n          ----------------------------------\nAgreement and receipt of written request from either Party, each Party shall\nreturn at its expense any and all copies of Confidential Information or\nmaterials in its possession or under its control.\n\n     9.5  Purchases After Termination.  Upon termination of this Agreement\n          ---------------------------\n(except for termination due to breach of contract by Com21), Com21 shall be able\nto continue to purchase the Licensed Software and receive Third-Tier Support for\na period of ninety (90) days per the original terms of this Agreement.\n\n     9.6  Return of Licensed Software. Within fifteen (15) days of any\n          ---------------------------\nexpiration or termination of this Agreement, Com21 shall return to Sonic all\nfull or partial copies of the Licensed Software in its possession or under its\ncontrol, including any master version of the Licensed Software, and shall so\ncertify such return by a duly authorized officer of Com21. Upon any expiration\nor termination of this Agreement, Com21 is deemed to have assigned, transferred,\nand conveyed back to Sonic all license rights in and to the Licensed Software.\n\n     9.7  Technical Support After Termination and\/or Expiration. Upon\n          -----------------------------------------------------\ntermination or expiration of this Agreement, Sonic shall continue to offer \nThird-Tier support including bug fixes but not feature enhancements to Com21 for\nan annual fee of ($20,000) twenty thousand dollars.\n\n10.  Source Code Escrow\n     ------------------\n\n     10.1 Escrow Agreement. Sonic agrees to deposit a full and complete\n          ----------------\nelectronic copy of the source code and hardware design to the Product, and all\nupdates and enhancements thereto (the 'Source Materials'), into escrow with a\nmutually agreed upon escrow services company. The parties will enter into a\nmutually agreeable escrow agreement. Com21 shall pay all fees for such escrow\nand Sonic shall bear its own costs in preparing the Source Materials for\ndeposit. The escrow agreement shall provide for the release of such Source\nMaterials upon the occurrence of an Event (as defined in 10.2).\n\n     10.2 Release Event.  The definitive escrow agreement will provide for\n          -------------\nthe release of such Source Materials to Com21 in the event Sonic (i) becomes the\nsubject of any voluntary or involuntary proceeding for liquidation under the\nU.S. Bankruptcy Code and such proceeding is not terminated with respect to Sonic\nwithin sixty (60) days of its commencement, or (ii) ceases to do business in the\nnormal course (except in the cases of corporate restructuring or acquisition),\nor (iii) Sonic exits the Internet security market and ceases development and\nongoing technical support of the technology licensed to Com21 in this Agreement.\n\n                                       10\n\n \n     10.3  Source Code License.  Subject to the terms and conditions of this\n           -------------------    \nAgreement, upon release from escrow, Com21 shall have a nonexclusive,\nnontransferable license to use and modify the Source Materials and distribute\nthe same in accordance with the licenses herein granted. Title in all Source\nMaterials shall remain in Sonic, and Com21 will take all reasonable precautions\nto maintain the secrecy of the Source Materials. Further, upon the release from\nescrow of the Source Materials, Com21 shall pay royalties to Sonic, or Sonic's\ndesignate or successor, in the amount of twenty dollars ($20) per unit shipped\nwhich contains the Source Materials or any portion thereof.\n\n     10.4  Right to Use Source Materials. Upon the release from escrow of the\n           ------------------------------\nSource Materials, Com21 agrees to not independently develop products which use\nany portion of the Source Materials.\n\n11.  Miscellaneous\n     -------------\n     \n     11.1  Export Restrictions.  Com21 shall not re-export, either directly or\n           -------------------                                                \nindirectly, the Licensed Software (including any technical data, manuals, or\nother materials delivered pursuant to this Agreement) to any country or\ncountries to which such re-exports are prohibited under the laws of the United\nStates or the laws of any country in the Territory, including but not limited to\nany Derivative Works or Modifications.  Com21 shall obtain appropriate license\napprovals and certifications necessary, if any, to comply with the applicable\nexport and re-export restrictions of the United States or any country in the\nTerritory.  Com21 understands and recognizes that the Licensed Software and\nother materials made available to it hereunder may be subject to the Export\nAdministration Regulations of the U.S. Department of Commerce and other U.S.\ngovernment regulations relating to the export of technical data and equipment\nand Licensed Software produced therefrom.  Com21 is familiar with and agrees to\ncomply, and to require Channel Partners and End Users to, with all such\nregulations, including any future modifications thereof.\n\n     11.2  Force Majeure.  If either Party is prevented from performing any\n           -------------\nportion of the Agreement by causes beyond its control, including labor disputes,\ncivil commotion, war, governmental regulations or controls, casualty, inability\nto obtain materials or services, or acts of God, such defaulting Party shall be\nexcused from performance for a period of delay and for a reasonable time\nthereafter.\n\n     11.3  Governing Law.  This Agreement shall in all respects be governed by\n           -------------\nand interpreted in accordance with the laws of the State of California, without\nreference to conflict of law provisions.\n\n     11.4  Arbitration.  Any controversy or claim arising out of this Agreement\n           -----------\nor a breach thereof shall, on written request of either Party served on the\nother, be submitted to binding arbitration before a single arbitrator to be\nconducted in accordance with the Rules and Regulations of the American\nArbitration Association (Commercial Division). If the Parties are unable to\nagree on an arbitrator within thirty (30) days after a Party has served notice\nof a request to arbitrate, then an arbitrator shall be selected by the American\nArbitration Association pursuant to its then-current rules, within fifteen (15)\ndays after the Parties are unable to agree on the arbitrator. Arbitration shall\ntake place in the County of Santa Clara, California. No discovery\n\n                                       11\n\n \nshall be allowed in such arbitration. The maximum number of days of hearing in\nsuch arbitration shall be ten (10), all of which shall occur in a twenty (20)\nday period. The arbitrators shall issue a written decision in the arbitration\ngiving the findings of facts and reasons for the award made by the arbitrator.\nThe award shall be specifically enforceable in a court of law with jurisdiction\nover the Parties and subject matter.\n\n     11.5   Attorney's Fees.  In any litigation or arbitration between the\n            ---------------\nParties, the prevailing Party shall be entitled to reasonable attorney fees and\nall costs of proceedings incurred in enforcing this Agreement.\n\n     11.6   Consequential Damages.  EXCEPT AS EXPLICITLY SET FORTH IN THIS\n            ---------------------     \nAGREEMENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER OR\nANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES\nARISING OUT OF OR RELATED TO THIS AGREEMENT OR A PARTY'S PERFORMANCE OR FAILURE\nTO PERFORM HEREUNDER.\n\n     11.7   The terms of this Agreement shall supersede and void any and all\nstandard terms and conditions on each Party's respective forms.\n\n     11.8   Binding Nature and Assignment.  Neither Party may assign any of its\n            -----------------------------\nrights or obligations under this Agreement without the prior written consent of\nthe other Party; provided, that either Party may in its sole discretion assign\nits rights and obligations under this Agreement to an entity which acquires all\nor substantially all of its assets or to any successor in a merger or\nacquisition without the prior written consent of the other Party. Subject to the\nforegoing, this Agreement is binding on the Parties and their respective\nsuccessors and assigns.\n\n     11.9   Amendment and Waiver.  No modification, amendment, or waiver of or\n            --------------------\nunder this Agreement is binding unless executed in writing by the Party against\nwhom enforcement of such modification, amendment or waiver is sought. No waiver\nof any of the provisions of this Agreement constitutes a waiver of any other\nprovision nor shall such waiver constitute a continuing waiver unless otherwise\nexpressly provided .\n\n     11.10  Further Assurances.  Each Party shall provide such further documents\n            ------------------\nor instruments required by the other Party as may be reasonably necessary or\ndesirable to give effect to this Agreement and to carry out its provisions.\n\n     11.11  Publicity.  For purposes of marketing, each Party may publicize the\n            ---------                                                          \nbusiness relationship generally contemplated by this Agreement.\n\n     11.12  Severability.  Any provision of this Agreement which is prohibited\n            ------------\nor unenforceable in any jurisdiction is, as to such jurisdiction, ineffective to\nthe extent of such prohibition or unenforceability without invalidating the\nremaining provisions or affecting the validity or enforceability of such\nprovision in any other jurisdiction.\n\n     11.13  Entire Agreement.  This Agreement, including the Exhibits hereto,\n            ----------------                                                 \nconstitutes the entire agreement between the Parties pertaining to the subject\nmatter hereof and supersedes all prior and contemporaneous agreements,\nunderstandings, negotiations and discussions, whether \n\n                                       12\n\n \noral or written, of the Parties pertaining to the subject matter hereof. There\nare no representations or warranties of the Parties in connection with the\nsubject matter hereof except as specifically referenced herein.\n\n     11.14  Notices.  Any notice, demand or other communication required or\n            -------\npermitted to be given under this Agreement must be in writing and is deemed\ndelivered to a Party (a) when delivered by hand or courier, (b) when sent by\nconfirmed facsimile with a copy sent by another means specified in this Section,\nor (c) six (6) days after the date of mailing if mailed by certified or\nregistered mail, return receipt requested, postage prepaid, in each case to the\naddress of such Party set forth below (or at such other address as the Party may\nfrom time to time specify by notice delivered in the foregoing manner):\n\n     If to Sonic:\n     ----------- \n\n     Sonic Systems\n     5400 Betsy Ross Drive, Suite 206\n     Santa Clara, CA 95054\n     Attn:  Sreekanth Ravi\n\n     If to Com21:\n     ----------- \n\n     Com21, Incorporated\n     750 Tasman Drive\n     Milpitas, CA 95035\n     Attn:  Ken Gorman\n\n     11.15  Independent Contractors.  The Parties act as independent contractors\n            -----------------------\nof each other. Nothing herein is deemed to constitute Sonic and Com21 as\npartners, joint venturers, or principal and agent. Except as expressly\ncontemplated by this Agreement, the Parties have no authority to bind each other\nlegally or equitably by contract, admission, acknowledgment, or undertaking or\nto represent each other as to any matters.\n\n     11.16  No Third Party Beneficiaries.  Nothing in this Agreement confers any\n            ----------------------------                                        \nrights on any person or entity not a Party to this Agreement.\n\n     11.17  Counterparts.  This Agreement may be executed in one or more\n            ------------                                                \ncounterparts, each of which is deemed an original but all of which taken\ntogether constitute one and the same instrument.\n\n     11.18  Survival.  Sections 1, 2.2, 2.3, 2.4, 4, 7, 8, 9.4, 9.5, 9.6, 9.7,\n            --------                                             \n10.3, 11, and all payment obligations incurred prior to the termination of this\nAgreement, will survive the termination or expiration of this Agreement for any\nreason.\n\n                                       13\n\n \nIN WITNESS WHEREOF, the Parties have entered into this Agreement to take effect\non the date executed by Sonic.\n\nCOM21, INCORPORATED                     SONIC SYSTEMS, INC.\n\nSignature \/s\/ Kenneth C. Gorman         Signature \/s\/ Sreekanth Ravi\n         --------------------------               ----------------------\nPrint Name  Kenneth C. Gorman           Print Name  Sreekanth Ravi\n           ------------------------                ---------------------\nPrint Title VP, Engineering             Print Title President\n            -----------------------                 --------------------\nDate  Jan. 27, 1999                     Date        1\/27\/99\n    -------------------------------          ---------------------------\n\n                                       14\n\n \n                                   EXHIBIT A\n                                   ---------\n\n                                 Deliverables\n\n-  A 16-user version of the SonicWALL Firmware in object code form.\n\n-  The firmware version is 3.x, and includes future bug fix releases and non-\ncharged upgrades.  The right to enable Sonic charged upgrades (such as VPN and\ncontent filter list subscription) is not included in the base price.\n\n-  An electronic version of the SonicWALL Documentation.\n-  Sonic to provide code performance tuning as applicable.\n-  Com21 Product and Company name to be customized by Sonic in the software\nGraphical User Interface (GUI).\n-  VPN option IS AVAILABLE as a separately priced option.\n-  Optional weekly update of the CyberNOT list IS AVAILABLE as a separately\npriced option.\n-  Sonic will provide hardware schematics of its SonicWALL product to help Com21\nwith its Product hardware design.\n\n \n                                   EXHIBIT B\n                                   ---------\n\n                    Licensed Software Pricing and Minimums\n\nThere are two components associated with the licensing of the code as per\nSection 3.1 of this Agreement:\n\n1)  A [ * ] Annual Software License Fee; and\n\n2)  A Per Unit Software Royalty as per the tables below. If in any 1-year term\nof this Agreement Com21 ships [ * ] revenue units of the OEM Product, the per\nunit price shall drop from [ * ] to [ * ] for the remaining term of this\nAgreement.\n\n\n\n________________________________________________________________________________________________\n         DESCRIPTION              Up to [ * ] units annually           [ * ] annually\n------------------------------------------------------------------------------------------------\n                                                                 \nPer unit license fee                          [ * ]                          [ * ]   \n------------------------------------------------------------------------------------------------\n\n\nAVAILABLE OPTIONS:\n\n\n\n_______________________________________________________________________________________________\n                 DESCRIPTION                                    Per Unit Price\n-----------------------------------------------------------------------------------------------\n                                             \nVPN Upgrade                                                           [ * ] \nAnnual CyberNOT Filter List Subscription                              [ * ]\n-----------------------------------------------------------------------------------------------\n\n\nNON-RECURRING ENGINEERING FEES\n------------------------------\nSonic Systems will provide certain custom engineering for one-time fees of:\n  -  Software Customization:   [ * ]\n  -  Code performance tuning - [ * ]\n\n \n                                   EXHIBIT C\n                                   ---------\n\n                        Licensed Software Specification\n\n                   INSERT SONICWALL SPECIFICATION SHEET HERE\n\n \n                                   EXHIBIT D\n                                   ---------\n\n                             Deliverables Schedule\n\nThe Deliverables listed in Exhibit A shall be delivered to Com21 within 5\nworking days after the Effective Date of this Agreement.\n\nPerformance Tuning - Sonic shall make its best effort to deliver code\n------------------                                                   \nperformance tuning before the end of February 1999 that, when combined with\nCom21's enhanced hardware design incorporating a 33Mhz Motorola 360 processor,\nmeets Com21's stated throughput performance goals of 7Mbps for firewalling only\n(no content filtering or VPN) and 500Kbps for firewalling, content filtering,\nand a single session of 56-bit ARC4 IPsec VPN simultaneously.  However, Sonic\ncan not absolutely guarantee these goals will be met.\n\nRelease of Second Installment of the Annual License Fee:  The following items\n-------------------------------------------------------                      \nshall be delivered by Sonic to Com21 for purposes of the payment of the second\ninstallment of the Annual License fee as per section 3.2(b):\n\n(1)  Sonic shall complete delivery of the deliverables specified in Exhibit A.\n\n(2)  Sonic shall assist Com21 in setting-up it's product registration, automatic\n     software update, and CyberNOT list subscription servers associated with the\n     successful delivery of the OEM Product.\n\n(3)  Sonic shall provide technical support and sales training at Com21 not to\n     exceed one full day each.\n\n(4)  Sonic shall provide an electronic version of the documentation complete\n     with Com21 requested reasonable minor changes and enhancements.\n\n(5)  Sonic shall make its best effort to complete performance tuning as\n     specified earlier in this Exhibit.\n\n \n                                   EXHIBIT E\n                                   ---------\n\n                          End User License Agreement\n\nThis End User Software License Agreement (Agreement) is a legal agreement\nbetween you, either an individual or a single entity, (Licensee) and Com21, Inc.\n(Com21) for the Licensed Product (defined below). By installing, copying or\notherwise using the Licensed Product, you agree to be bound by the terms of this\nAgreement.  If you do not agree to the terms of this Agreement, promptly return\nthe unused Licensed Product to the place where you obtained it for a full\nrefund.\n\n1.  Definitions.\n\na.  Documentation means the end user documentation associated with the Software\n    -------------                                                              \nprovided by Com21.\n\nb.  Hardware means, collectively, Com21's headend controller unit.  Com21's\n    --------                                                               \nsubscriber-end data over cable modem and\/or voice over cable modem and a central\nprocessing unit (CPU) operating on a SUN platform with HP Open View software.\n\nc.  Licensed Product means, collectively, the Software and the Documentation.\n    ----------------                                                         \n\nd.  Software means, collectively, the version(s) of the Com21 network management\n    --------                                                                    \napplications programs (the NMAPS Software), Com21 cable modem image software and\nother software contained as any Hardware, an object code form including updates,\nmodifications or enhancements of such programs that may be provided byCom21 in\nits sole discretion from time to time.\n\n2.  Grant of License.  Subject to all the terms and conditions of this\nAgreement, Com21 grants Licensee a non-exclusive, non-sublicensable, non-\ntransferable right (License) to use the Software only in accordance with the\nDocumentation and only in connection with the Hardware licensed or purchased by\nLicensee.  Licensee has no right to receive, use, examine, or modify any source\ncode or design documentation relating to the Software.\n\n3.  Ownership of Software.  As between the parties, Com21 retains all title to\nand ownership of and, except as expressly and unambiguously licensed herein, all\nrights and interest in the Licensed Products including all customizations,\nenhancements, modifications, improvements, derivatives or other changes (by\nwhomever produced) and all copies and portions thereof, whether or not\nincorporated into or with other software, and all intellectual property and\nproprietary rights anywhere in the world therein.  The License does not\nconstitute a sale of the Software or any portion or copy of it.\n\n4.  Restrictions.  Except as reasonably required to use the Software with the\nHardware strictly in accordance with the License, copying or modifications of\nthe Licensed Products or any portion thereof, including Software that has been\nmodified or incorporated into or with other software, is expressly forbidden.\nLicensee shall not remove, alter, obscure or fail to reproduce all copyright,\ntrademark and other proprietary rights noticed that appear in or on the Licensed\n\n \nProducts.  Except to the extent expressly prohibited by applicable law, Licensee\nshall not (and shall not allow any third party to) decompile, disassemble, or\notherwise reverse engineer or attempt to reconstruct or discover any source code\nor underlying ideas, structure, sequence, organization, algorithms, file\nformats, programming or interoperability interfaces of the Software or of any\nfiles contained in or generated using the Software by any means whatsoever.\nFurther, Licensee shall not (i) load or use any portion of the NMAP Software on\nor with more than on CPU, whatsoever.  Further, Licensee shall not (i) load or\nuse any portion of the NMAP Software on or with more than one CPU, (ii) provide,\nlease, lend or otherwise use or allow others to use the Software to or for the\nbenefit of third parties, (iii) except as specified in the Documentation,\nmodify, incorporate into or with other software or create a derivative work of\nany part of the specified in the Documentation, modify, incorporate into or with\nother software or create a derivative work of any part of the Software, (iv)\nload or use any portion of the Software (whether or not modified or incorporated\ninto or with order software) on or with any machine or system other than the\nHardware, (v) except if, as and to the extent expressly authorized in the\nDocumentation, transmit or use the Software over a network, or (vi) disseminate\nperformance information or analysis (including, without limitation, benchmarks)\nfrom any source relating to the Software.\n\n5.  Termination of License.  The License shall remain in effect for so long as\nLicensee's use of the Licensed Products is in compliance with the terms and\nconditions of this Agreement.  The License will terminate immediately without\nnotice from Com21 if Licensee fails to comply with any provision of this\nAgreement.  Upon termination, Licensee shall immediately cease all use of the\nLicensed Products and return or destroy all copies of the Licensed Products and\nall portions thereof (whether or not modified or incorporated with or into other\nsoftware) and so certify to Com21.  Except for the Licensee and except as\notherwise expressly provided herein, the terms of this Agreement shall survive\ntermination.  Termination is not an exclusive remedy and all other remedies will\nbe available whether or not the Licensee is terminated.\n\n6.  Limited Warranty and Disclaimer.  THE LICENSED PRODUCT IS PROVIDED 'AS IS'\nWITHOUT WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF\nMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  FURTHER, COM21 DOES NOT\nWARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE\nRESULTS OF THE USE, OF THE LICENSE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY,\nRELIABILITY, OR THAT THE LICENSED PRODUCTS ARE OR WILL BE ERROR-FREE.  This\nlimited warranty does not affect or prejudice statutory rights Licensee may have\nacquired in the country in which the Licensed Products are being used.\n\n7.  Limitation of Remedies and Damages.  TO THE MAXIMUM EXTENT PERMITTED UNDER\nAPPLICABLE LAW, COM21 SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY\nSUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT\nLIABILITY OR OTHER THEORY FOR (I) ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL\nDAMAGES, LOST PROFITS OR LOSS OR INACCURACY OF DATA OR (II) COST OF PROCUREMENT\nOF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR (III) ANY MATTER BEYOND ITS\nREASONABLE CONTROL NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR RESTRICT COM21'S\nLIABILITY FOR DEATH OR PERSONAL INJURY SOLELY \n\n \nCAUSED BY COM21'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR TO THE EXTENT\nEXPRESSLY PROHIBITED UNDER APPLICABLE MANDATORY PRODUCT LIABILITY LAWS, IF ANY.\n\n8.  Indemnification.  Com21 shall hold Licensee harmless from liability\nresulting from infringement by the Software of any United States patent issued\nas of the date sixty (60) days before delivery of the Software or any United\nStates copyright, provided Com21 is promptly notified in writing of any and all\nthreats, claims and proceedings related thereto, given reasonable assistance and\nhas sole control over the defense and all negotiations for a settlement or\ncompromise; Com21 will not be responsible for any settlement it does not approve\nin writing.  THE FOREGOING CONSTITUTES COM21'S SOLE LIABILITY, AND LICENSEE'S\nSOLE REMEDY IN THE EVENT OF ANY INFRINGEMENT OF THIRD PARTY RIGHTS BY THE\nLICENSED PRODUCTS AND IS IN LIEU OF ANY WARRANTIES OR NONINFRINGEMENT, WHICH ARE\nHEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.  The\nforegoing obligation of Com21 does not apply with respect to Software or\nportions or components thereof (i) not supplied by Com21, (ii) made in whole or\nin part in accordance to Licensee's specifications, (iii) which are modified\nafter delivery by Com21, (iv) combined with other products, processes or\nmaterials (excluding the Hardware) not supplied by Com21, (v) where Licensee\ncontinues allegedly infringing activity after being modified thereof or after\nbeing informed of modifications that would have avoided the alleged\ninfringement, or (vi) where Licensee's use of the Software is incident to an\ninfringement not resulting primarily form the Software or is not strictly in\naccordance with the License; Licensee will indemnify Com21 and its officers,\ndirectors, agents and employees from all damages, settlements, attorneys' fees\nand expenses related to a claim of infringement excluded from Com21's indemnity\nobligation by this sentence.\n\n9.  Government Matters.  Licensee shall comply with the U.S. Foreign Corrupt\nPractices Act regarding among other things, payments to government officials)\nand all export laws, restrictions, national security controls and regulations of\nthe United States or other applicable foreign agency or authority, and not to\nexport or re-export, or allow the export or re-export of any Software or any\ncopy or direct product thereof in violation of any such restrictions, laws or\nregulations or, without all required licenses and authorizations, to any Group\nD1 or E2 country, including, without limitation, Cuba, Libya, North Korea, Iran,\nIraq or Rwanda (or any national or such country) specified in the then-current\nSupplement No. 1 to Part 740 of the U.S. Export Administration Regulations (or\nany successor supplement or regulations).\n\n10. Miscellaneous.\n\na   Assignment.  The License and this Agreement are not assignable or\n    ----------                                                       \ntransferable by Licensee without the prior written consent of Com21; any attempt\nto do so shall be void.\n\nb.  Waivers and Amendments.  No failure to exercise, and no delay in exercising,\n    ----------------------                                                      \non the part of either party, any privilege, any power or any rights hereunder\nwill operate as a waiver thereof, nor will any single or partial exercise of any\nright or power hereunder preclude further exercise of any other right hereunder.\nAny waivers of or amendments to any provision of this Agreement shall be\neffective only if made in writing clearly understood by both parties to be an\namendment or waiver and signed by a representative of the respective parties\nauthorized to bind the parties.\n\n \nc.  Severability.  If any provision of this Agreement shall be adjudged by any\n    ------------                                                              \ncourt of competent jurisdiction to be unenforceable or invalid, that provision\nshall be limited or eliminated to the minimum extent necessary so that this\nAgreement shall otherwise remain in full force and effect and enforceable.\n\nd.  Governing Law; Attorneys' Fees.  This Agreement shall be deemed to have been\n    ------------------------------                                              \nmade in, and shall be construed pursuant to the laws of the State of California\nand the United States of America without regard to conflicts of laws provisions\nthereof and without regard to the U.N. Convention on Contracts for the\nInternational Sale of Goods.  The sole and exclusive jurisdiction and venue for\nany action or dispute relating to the subject matter of this Agreement shall be\nthe California state and U.S. federal courts having within their jurisdiction\nthe location of Com21 and each of the parties hereto submits itself to the\nexclusive jurisdiction and venue of such courts for the purpose of any such\naction or dispute and hereby waives any venue objection thereto.  The prevailing\nparty in any action to enforce this Agreement shall be entitled to recover costs\nand expenses including, without limitation, attorneys' fees.\n\ne.  English Language.  The original of this Agreement has been written in\n    ----------------                                                     \nEnglish.  Licensee hereby agrees to waive my right under the law of the country\nin which the Software was initially licensed to have this Agreement written in\nthe native language.\n\nf.  Equitable Relief.  The parties agree that a material breach of this\n    ----------------                                                   \nAgreement adversely affecting Com21's proprietary rights in the Software would\ncause irreparable injury to Com21 for which monetary damages would not be an\nadequate remedy and that the Com21 shall be entitled to equitable relief in\naddition to any remedies it may have hereunder or at law.\n\ng.  Entire Agreement.  Both parties agree that this Agreement is the complete\n    ----------------                                                         \nand exclusive statement of the mutual understanding of the parties and\nsupersedes and cancels all previous written and oral agreements and\ncommunications relating to the subject matter of this Agreement.\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7151,8863],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9619],"class_list":["post-42621","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-com21-inc","corporate_contracts_companies-sonicwall-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42621","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42621"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42621"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42621"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42621"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}