exv10w16



 




Exhibit 10.16



Note: Information in this document marked with
a “[***]” has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.






ATHEROS
TECHNOLOGY LICENSE AGREEMENT






	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 	Aruba Wireless Networks	 
	 	Atheros Communications, Inc.	 	 	 	 	 	 
	 	 	 	 	 	 	(Name of Licensee)	 
	 	 	 	 	 	 
	 	By:

	 	/s/ Tom Foster
	 	 	By:
	 	/s/ Keerti Melkote	 
	 	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 
	 	Name:

	 	Tom Foster
	 	 	Name:
	 	Keerti Melkote	 
	 	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 
	 	Title:

	 	V.P. Worldwide Sales
	 	 	Title:
	 	Co-founder/VP Marketing	 
	 	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 
	 	Date:

	 	10/20/05
	 	 	Date:
	 	9/08/05	 
	 	 	 	 	 	 
	 	Principal Place of Business:	 	 	Principal Place of Business:	 
	 	 

	 	5480 Great America Parkway
	 	 	 	 	1322 Crossman Ave	 
	 	 

	 	Santa Clara, CA 95054
	 	 	 	 	Sunnyvale, CA 94089	 
	 	 	 	 	 	 
	 	Effective Date of this
License Agreement: November 1, 2004 (“Effective
Date”)	 
	 	 	 	 	 	 




This
Technology License Agreement (“License” or
“Agreement”) is made and entered into as
of the Effective Date by and between Atheros Communications, Inc.
(“Atheros” or “we” or “us”), and
the licensee identified above (“Licensee” or
“you”). The parties, intending to be legally bound,
agree as follows:







	1.	 	DEFINITIONS
	 
	 	 	“Atheros Competitor” means a person or entity that designs, develops, manufactures or markets
any integrated circuit, device or software that provides baseband, media access control
(MAC-layer) or radio-frequency front-end functionality for wireless communications using
unlicensed radio spectrum.
	 
	 	 	“Component” means a semiconductor product sold under an Atheros label or manufactured under
license from Atheros.
	 
	 	 	“Designated Equipment” means equipment that incorporates one or more Components.
	 
	 	 	“Development Hardware” means Components and boards listed on the price list in Exhibit A, or on
our then-current Development Hardware price list: (i) that are purchased by you directly from us
for use solely in developing Designated Equipment and Your Software,
and (ii) that will not be
resold, either on a stand-alone basis or in or with other equipment.
	 
	 	 	“Effective Date” is defined in the signature block above.
	 
	 	 	“Excluded Code” means files and groups of files that are governed by a separate (e.g., signed or
click-wrapped terms, or terms provided within the file itself and acknowledged through use of the
file) license agreement. Software licensed by you under the GPL, BSD or other open source licenses
is Excluded Code unless agreed by us otherwise in writing.
	 
	 	 	“Intellectual Property Rights” means patents, trademarks, tradenames, service marks, mask works,
copyrights, and applications for any of the foregoing, know-how, confidential information, trade
secrets and any other similar rights throughout the world.
	 
	 	 	“License Term” means: (i) for the Modules listed in Exhibit A, for all other Modules that you
acquire from Atheros during the Term and for which you are not required to pay a separate license
fee, and for Updates to the foregoing Modules: the Term; and (ii) for Modules and Upgrades for
which you pay us a separate license fee, and for Updates to such Modules and Upgrades: the initial
term (“Initial License Term”) of such license specified by us at the time of such purchase, and any
Renewal License Term of that license.
	 
	 	 	Each Initial License Term will automatically renew, without an additional license fee, for
successive one year periods (each: a “Renewal License Term”), until and unless one of the parties
provides the other a notice of non-renewal at least 90 days
prior to the end of a then-current
License Term.
	 
	 	 	“Licensed Technology” means each and all of the following provided to you during the Term: (i)
Reference Designs, (ii) Our Software, (iii) the Technical Documentation, and (iv) Atheros end user
documentation.
	 
	 	 	“Module” means each and all of the
following: (i) the software file or group of files listed in
Section 6 of Exhibit A, and (ii) any different software file or group of files (excluding Reference
Designs) that you download, with authorization, from an Atheros server or that Atheros otherwise
provides to you during the Term. “Module” excludes and does not mean Excluded Code.









Page 1 of 14









 





ATHEROS
TECHNOLOGY LICENSE AGREEMENT





	 	 	“Object Code” means an object or binary (machine-readable) version of an item of
Our Software or Your Software.
	 
	 	 	“Our Software” means each and all of the following: (i) a Module, (ii) an Update obtained from
us during a Support Term for which you have paid the applicable fees pursuant to Section 8.3
(Renewal, Support Fees), and (iii) an Upgrade for which you pay a separate license fee to us, and
that is not governed by a separate written (e.g. signed or click-wrap) license agreement.
	 
	 	 	“Reference Design” means the Gerber files and other computer code provided to you by Atheros during
the Term that provide a reference design for boards incorporating a Component.
	 
	 	 	“Source Code” means the source (human readable) version of an item of Our Software or Your
Software.
	 
	 	 	“Support Term” means the first year of the Initial Term designated on Exhibit A, and each annual
extension of that Support Term for which the requisite annual support fee has been paid.
	 
	 	 	“Technical Documentation” means documentation, of Our Software or of a Reference Design, that we
provide to you during the Term, other than end user documentation of Our Software.
	 
	 	 	“Term” means the Initial Term designated on Exhibit A, and any Renewal Term. The Initial Term will
automatically renew, without an additional license fee, for successive one year periods (each: a
“Renewal Term”), until and unless one of the parties provides the other a notice of non-renewal at
least 90 days prior to the end of a then-current Term.
	 
	 	 	“Update” means a version of a Module (released after the date you first obtain the Module) that we
make generally available during the License Term of that Module, without additional charge, to all
customers that have purchased support services from us.
	 
	 	 	“Upgrade” means a version of a Module (released after the date you first obtain the Module) that we
make available during the License Term of that Module, and that is not an Update.
	 
	 	 	“Your Documentation” means any documentation, of Our Software or Your Software, supplied by you to
your customers.
	 
	 	 	“Your Software” means each and all of the following: (i) any change to Our Software developed by or
for you under this License, and (ii) other software developed by or for you under this License
using any application programming interfaces in Our Software.






	2.	 	PERMITTED USES AND RESTRICTIONS.





     2.1. General. Our Software and Reference Designs are
licensed, not sold, to you, for use only as permitted by this
License. We reserve all rights not expressly granted to you.
The rights granted below are non-exclusive, and are limited
to our and our licensors’ Intellectual Property Rights in Our
Software and Reference Designs.



     2.2. Grant. Subject to the terms and conditions of this
License:




     2.2.1. Source Code. During the License Term
of a Module, you may:




          (i) use, copy and modify the Source Code of that Module, solely to develop Your Software
for use in or with Designated Equipment, to generate Object Code of Our Software for use as
permitted in Section 2.2.2 (Object Code), and to develop Designated Equipment;




          (ii) use, copy and modify the Source Code of Your Software that was developed pursuant to
clause (i) above to generate Object Code of Your Software for use as permitted in Section 2.2.2
(Object Code), and to develop Designated Equipment; and




          (iii) sublicense your rights under (i) and (ii) to a person or entity that is not an
Atheros Competitor (a “contractor”) solely to enable the contractor to perform development
services solely for you, provided the contractor agrees in writing to: (a) abide by all the
provisions of this License applicable to such Source Code, including restrictions on the
disclosure and use of the code, and (b) return to you or destroy all copies of any provided
Source Code. You will be responsible for ensuring the contractor’s compliance with that
agreement and agree to enforce such terms in a manner similar to that which you use to protect
your own source code and most confidential information.




     2.2.2. Object Code. During the License Term
of a Module, you may: (i) use the Object Code of
that Module, and of Your Software developed using
that Module or developed for use with that
Module, only when embedded in Designated
Equipment or as a driver of a Component, and
(ii) manufacture, have manufactured, import, offer to sell and sell (directly and indirectly)
Designated Equipment incorporating such Object Code. You may sublicense the rights under (i)
only to end users of the Designated Equipment, pursuant to a binding software license agreement
meeting the requirements set forth in Exhibit B.




     2.2.3. Reference Designs. During the Term,
you may use, copy and modify the Reference
Designs solely to develop, manufacture and have
manufactured, and support, Designated Equipment.




Page 2 of 14









 





ATHEROS
TECHNOLOGY LICENSE AGREEMENT





     2.2.4.
Documentation. Branding. During the Term, you may:




          (i) use and copy Technical Documentation solely in connection with the development,
manufacture and support of Designated Equipment; and




          (ii) subject to the requirements of this Section 2.2.4 (Documentation, Branding), modify
the Atheros end user documentation we supply to you by incorporating all or any portion of it
into Your Documentation, and distribute (directly and indirectly) Your Documentation to
purchasers of Designated Equipment.




          Other than to list a Component as an ingredient of Designated Equipment, Your
Documentation and Designated Equipment may not be branded with our name or brand without our
prior written permission. You must delete from Your Documentation all references to Atheros
being the contact for technical support. You may use a third-party fulfillment house to produce
Your Documentation, provided you are responsible for ensuring such third party’s compliance
with the terms of this License.



     2.3. No Open Source. In your exercise of the rights granted under this License, you will not
take any action or enter any agreement that would result in any contractual requirement that we or
you make available to a third party any of the Source Code of Our Software or Your Software.



     2.4. Restrictions. Each copy of Our Software must
include all copyright and other proprietary notices contained
on the original copy of that software. Each copy of Your
Software must include a copyright or other notice sufficient
to protect our Intellectual Property Rights in Our Software
from which Your Software was derived.



          Except to the extent permitted in this Section 2 (Permitted Used and Restrictions) or by
applicable law, you may not (and may not allow anyone else to): (i) copy, decompile, decrypt,
reverse engineer, disassemble, modify, or create derivative works of any Licensed Technology or
Development Hardware, or attempt to reconstruct or discover any Source Code or underlying ideas or
algorithms of Our Software, (ii) remove, alter or obscure any product identification, copyright or
other intellectual property notices embedded within or on the Licensed Technology or any
Development Hardware, or (iii) publish, disclose, sell, rent, lease, lend, distribute, sublicense
or provide Licensed Technology or any Development Hardware to any third party.



     2.5. Delivery. Licensed Technology will be made
available to you in electronic format for download, using a
user authorization mechanism (i.e., password). You may
provide the authorization mechanism only to your employees
on a need-to-know basis.




	3.	 	INTELLECTUAL PROPERTY





     3.1.
Ownership, Covenant. We are and will be the
sole owner of all right, title and interest, including all the
Intellectual Property Rights, in and to the Licensed
Technology, and all modifications, enhancements, updates,
upgrades and derivative works thereof made by or for us.
Subject to Atheros’ ownership in the Licensed Technology,
you will be the sole owner of all right, title and interest,
including all the Intellectual Property Rights, in and to Your
Software and Your Documentation, and all derivative works
thereof made by or for you. You irrevocably covenant and
agree that you, and any permitted transferee of your right, title
and interest in and to any of Your Software (each a
“Transferee”), will not assert, commence, assist, advise or
prosecute any claim, action or proceeding of any kind, against
us, or any of our licensees or transferees or any sublicensee of
any of the foregoing, alleging that the reproduction,
modification, display, performance, use, sale, offer to sell,
importation, distribution or other exploitation of any of our
products or software, or of any derivative work or modified
version thereof, infringes or violates any of your or your
Transferee’s Intellectual Property Rights in Your Software; and
you hereby irrevocably and unconditionally waive your right
to assert, commence or prosecute any such claim, action or
proceeding.



     3.2. Feedback. You agree that any feedback or ideas
you provide to us regarding any Licensed Technology or any
suggested improvements thereto (together: the
“Feedback”)
will be the exclusive property of Atheros. To the extent you
own any rights in the Feedback, you agree to assign and hereby do assign to us all right, title and interest in and to the
Feedback. You agree to perform all acts reasonably requested
by us to perfect and enforce such rights. We will reimburse
you for direct out of pocket costs incurred in complying with
our requests.



     3.3. Notices. You agree to include on Your Documentation, all copyright, proprietary and other
Intellectual Property Rights notices reasonably requested by us in writing.



     3.4. Notification of Unauthorized Use. You will
promptly notify us if you become aware of any unauthorized
use of the Licensed Technology or violation or threatened
violation of our Intellectual Property Rights therein. You
agree to cooperate with us and render such assistance as we
may reasonably request to identify, halt and/or prevent any
violation of the provisions of this License.



     3.5. Announcement. Except as required to satisfy legal
disclosure and financial reporting requirements, neither party
may use the name of the other party in any news release,
public announcement, advertisement or other form of
publicity without the prior written consent of the other party.




Page 3 of 14









 





ATHEROS
TECHNOLOGY LICENSE AGREEMENT




	4.	 	FEES, PAYMENTS, TAXES





     4.1. Fees. You agree to pay to us: (i) the license fees
set forth in Exhibit A for Our Software listed in Section 6.1
of Exhibit A, (ii) the then-current license fee, if any, of any
other Module or Update you obtain under this Agreement;
(iii) the support fees described in Section 8 (Support), and
(iv) the hardware fees described in Section 5 (Supply of
Components and Development Hardware).



     4.2. Payments. Payments will be due within 30 days of
invoice date. All prices are stated, and all payments must be
made, in U.S. dollars. Late payments shall accrue interest at
a rate of 18% per year or a lesser amount required by law.



     4.3. Taxes. All fees are exclusive of, and you are
responsible for, any taxes, tariffs, duties and other
government-imposed charges resulting from the license, sale,
provision or use of Our Technology or of any product or
service under this License (except for taxes based on our net
income) and any penalties, interest and collection or
withholding costs associated with any of the foregoing items.
You agree to pay our fees without deduction for withholding
taxes or other assessments required or imposed by any taxing
authorities, and to pay all such withholding taxes and
assessments. You further agree promptly to furnish us with a
certificate evidencing payment of each such tax or
assessment. When we have the legal obligation to pay or
collect such taxes or fees, you agree to pay such amounts
unless you provide us a valid tax exemption certificate. You
agree to reimburse us for any fines, penalties, taxes and other
charges, including expenses incurred by us, due to your
submission of invalid tax-related information.




	5.	 	SUPPLY OF COMPONENTS AND DEVELOPMENT HARDWARE





     5.1. Supply of
Components. You may order
Components from us (or, in our discretion, from our wholly-owned subsidiary, Atheros Technology Ltd., a Bermuda
corporation), at the then-current Component list prices or
such price as is quoted to you in a written price quote. All
orders are subject to acceptance, and will be governed by the
then-current terms and conditions of sale of Atheros or
Atheros Technology Ltd., as applicable. The terms and
conditions appearing on any purchase order or other
document submitted by you will not apply to your order,
except for name(s) of product(s) ordered, quantity, requested
shipment date and delivery destination.



          Subject to
our prior written consent, which consent may be provided via email, you may
authorize third parties such as contract manufacturers to order Components on your behalf. You may
not reveal pricing to the third party, and you guarantee payment and
compliance by such third party
under and with the then-current terms and conditions of sale of Atheros or Atheros Technology Ltd.,
as applicable.



     5.2. Development
Hardware. During the Term, you
may order a reasonable quantity of Development Hardware,
at the prices set forth on the then-current Development Hardware Price List. All orders are subject
to acceptance, and will be governed by the then-current terms and conditions of sale of Atheros or
Atheros Technology Ltd., as applicable, except that the provisions of this Agreement that
explicitly reference Development Hardware will take precedence over any contrary or additional
provisions of such terms and conditions related to the same subject matter, and we assume no
intellectual property indemnification or defense obligations with respect to Development Hardware.




	6.	 	THIRD PARTY RIGHTS





     6.1.
Third Party Software Supplied. Our Software
may include software licensed from third parties (“Third
Party Software”). Third Party Software is subject to the
license terms and disclaimers (together: “Terms”) provided
by the licensor. Third Party Software will be identified in a
Read Me or Credits file or folder accompanying such
software. NOTWITHSTANDING ANY OTHER
PROVISION OF THIS LICENSE, YOUR USE OF EACH
ITEM OF THIRD PARTY SOFTWARE IS GOVERNED
BY ITS APPLICABLE TERMS, AND WE ASSUME NO
RESPONSIBILITY FOR, AND MAKE NO WARRANTY
WITH RESPECT TO, THIRD PARTY SOFTWARE.



     6.2. Third Party Software Required to be Obtained
by You. You may need to obtain software from third parties
to use or for use with Our Software. For example, you may
need to obtain ethernet source code from National
Semiconductor, or a runtime license and development seats
for VxWorks. It is your responsibility to ensure you obtain
and pay for any such required third party software.



     6.3. Published Standards. Royalty Obligations. You
understand and acknowledge that third parties may claim that a royalty or other fee is due to them
as a result of the adherence of Our Software or Your Software to published standards. Any such fees
are your sole responsibility.




	7.	 	WARRANTIES, INDEMNITY





     7.1. Disclaimer of Warranty. The Licensed
Technology is provided AS IS, with all faults. We support
Our Software as set forth in Section 8.2 (Support Services).



     7.2. Development Hardware Warranty. We warrant
solely to you that for 30 days after delivery to you
(“Hardware Warranty Period”), each item of Development
Hardware will be operative. If you give us written notice that
an item of Development Hardware is non-operative within
the Hardware Warranty Period, we will, at our sole option,
replace the non-operative item or refund the purchase price of
that item (or if that item was provided on a bundled basis
without separate charge, then the price of such item as set
forth in Exhibit A).



     7.3. Warranty Disclaimer and Limited Remedies.
SECTION 7.2 STATES YOUR EXCLUSIVE REMEDY
AND OUR ENTIRE LIABILITY FOR ANY BREACH OF




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ATHEROS
TECHNOLOGY LICENSE AGREEMENT



WARRANTY. We make no warranty or representation that any Licensed Technology or
Development Hardware will meet your requirements or work in combination with any hardware or
applications software provided by third parties, that the operation of Our Software will be
uninterrupted or error-free, or that any defects in any Licensed Technology will be corrected.
EXCEPT AS EXPLICITLY SET FORTH IN SECTION 7.2, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. NO
ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR ANY OF OUR EMPLOYEES OR REPRESENTATIVES WILL
CREATE A WARRANTY.




     7.4. Intellectual Property Indemnity.




     7.4.1. By Us. Provided the requirements of Section 7.4.3
(Conditions) are met, we will, at our expense, defend (or at our option, settle) any suit
brought against you, and will pay all damages and costs (including reasonable attorneys’ fees)
(together: “Damages”) finally awarded against you, to the extent based on a claim that Our
Software directly infringes any duly issued United States, Japan or European Union patent or
Berne Convention copyright, or misappropriates any trade secret right of any third party.




          Notwithstanding the foregoing, we will have no liability or obligation with respect to
claims or Damages arising from: (i) Your Software (to the extent it differs from Our Software),
Third Party Software or a modification to or derivative work of Our Software not made by us;
(ii) the combination or use of Our Software with anything other than a Component; (iii) the use
of Our Software to practice any method or process that does not occur wholly within Our
Software, (iv) compliance with your design requirements or specifications or those of your
customer, (v) the use of other than the then-current release of Our Software, or (vi) your
continuation of allegedly infringing activity after being notified
thereof (each, an “Excluded
Claim”).




          If the use of Our Software is enjoined, or we believe a claim of infringement is likely,
we may, at our sole option and expense: (i) procure for you the right to continue using Our
Software as licensed herein; (ii) provide you functionally equivalent, non-infringing software;
or (iii) if neither of the foregoing is commercially reasonable, terminate the license to the
affected software and refund a portion of the license fee you paid for that software (if any)
(amortizing that fee on a straight-line basis over its License Term).




          THIS SECTION 7.4.1 STATES OUR ENTIRE RESPONSIBILITY AND LIABILITY, AND YOUR EXCLUSIVE
REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR
MISAPPROPRIATION OF ANY THIRD PARTY RIGHTS ARISING WITH RESPECT TO OUR SOFTWARE AND ANY OTHER
ITEMS, PRODUCTS OR SERVICES PROVIDED HEREUNDER.




     7.4.2. By You. Provided the requirements of
Section 7.4.3 (Conditions) are met, you will, at your
expense, defend (or at your option, settle) any suit
brought against us, and will pay all Damages finally
awarded against us, to the extent based on an
Excluded Claim. THIS SECTION 7.4.2 STATES
YOUR ENTIRE RESPONSIBILITY AND
LIABILITY, AND OUR EXCLUSIVE REMEDY,
FOR ANY ACTUAL OR ALLEGED
INFRINGEMENT OR MISAPPROPRIATION OF
ANY THIRD PARTY RIGHTS ARISING WITH
RESPECT TO YOUR SOFTWARE OR ANY
EXCLUDED CLAIM.




     7.4.3. Conditions. As a condition to receiving
the indemnification and defense specified above, the
indemnified party must: (i) promptly notify the
indemnifying party of any actual or threatened suit,
claim or proceeding on which indemnity is or may
be sought, (ii) give the indemnifying party sole
control, through counsel of its choice, of the defense
and settlement of the claim, and (iii) at the
indemnifying party’s expense, reasonably cooperate
in the defense and settlement of the claim and
provide the indemnifying party all information,
assistance and authority requested to enable it to
defend of settle the claim.




	8.	 	SUPPORT





     8.1. Training. No training is provided under this
Agreement.



     8.2.
Support Services. During the Support Term,
subject to the provisions of this Section 8.2, we will provide
to you, at no additional charge, Updates of Our Software and
Technical Documentation, and the other support services
described below.




     8.2.1.
 Error Correction. You may inform us of
Errors in Our Software by sending e-mail to
support@Atheros.com. We will use reasonable
commercial efforts to respond to such reports within
two (2) business days, and to correct any
documented, reproducible Error, to provide an acceptable work-around, or correct errors in the
documentation. “Error” means a problem that
causes Our Software not to operate substantially in
conformance with its Technical Documentation.




     8.2.2. Limitations. Atheros will not support
Your Software. You have sole responsibility for
providing technical support to, and you assume any
and all warranty obligations to, your customers (at




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ATHEROS
TECHNOLOGY LICENSE AGREEMENT




any tier) with respect to Our Software, Your Software and Designated Equipment. You
have no authority to obligate us in any way under any warranty you may provide.




     8.2.3. Additional Support Services Location Option. Support services will be
provided only to the site listed on Exhibit A, Section 4. Subject to our consent, you may
purchase support services for additional location(s)
(“Additional Support Services Location(s)”)
at which Our Software, Reference Designs and Development Hardware will be used by executing an
amendment to this License and paying our then-current fees for such Additional Support Services
Location(s) for each year for which you request such support. We will deliver to you, at the
Additional Support Services Location(s), at no additional charge, one test and software
development board.




     8.2.4. Support of Back Revs of Our Software.
Migration to the then-current release of Our
Software may be required for continued support.




     8.2.5.
No Support for Excluded Code, Even if
Provided to You by Us, our Partner, Agent or
Contractor. You may now possess or may receive,
from us, from our contractor or agent, or from
another party or source, Excluded Code that
functions or is intended to function with our
Components, but which is not licensed under this
Agreement. Excluded Code, even if owned and
controlled by us, will not be supported by us and is
in no way warranted, indemnified or otherwise
endorsed by us under this Agreement.



     8.3. Renewal, Support Fees. Support services will be provided to you without charge during the
first year following the Effective Date. Thereafter, the Support Term will automatically extend for
successive annual periods, until one of the parties provides the other a notice of non-renewal of
support services at least 90 days prior to the end of the then-current Support Term. You agree to
pay for annual support services after the first anniversary of the Effective Date. The fee for each
year of support services may be increased by Atheros in its sole discretion, but will not exceed
120% of the support fee for the prior year. For purposes of this calculation, the first year
support fee is set forth on Exhibit A.



          Each annual invoice for support services will be rendered approximately 30 days before the end
of the then-current Support Term. Payment is due within 30 days of the invoice date. Failure to
timely pay the fee shall terminate the Support Term.




	9.	 	LIMITATION OF LIABILITY






     9.1. Limited Remedies, Damages Exclusion.
Notwithstanding any other provision of this Agreement:



               (i) Our
total, cumulative liability arising from or in connection with this License or any item
or service ordered or provided hereunder will be limited to the lesser of (a) the greater of
$50,000 or the fee paid by you for the item or service that caused
such loss, and (b) $100,000.




               (ii) In
no event will we be liable for incidental, consequential, indirect, special or
punitive damages or lost revenue, data or profits (all collectively:
“indirect damages”), arising
from or in connection with this License or any product or service ordered or provided hereunder.
The limitations on and disclaimers of remedies, warranties and damages set forth in this License
will apply regardless of: (a) whether any specified remedy fails of its essential purpose, (b) the
form of action (e.g., contract, tort, statute, or other legal theory) and (c) whether we were
advised of the possibility of such damages or such damages were foreseeable. These limitations and
disclaimers reflect the parties’ reasonable allocation of the risks associated with any performance
or non-performance under this License, and are included in this License as a material inducement
for us to enter into this License.



     9.2.
High Risk Applications. The Licensed Technology is not designed
or warranted for use with chips other than Components, and it and the
Components are not warranted by us for use in
developing, or for incorporation into, products or services used in applications or environments
requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft
navigation or communication systems, air traffic control, life support machines, surgically
implanted devices, weapons systems, or other applications, devices or systems in which the failure
of a Component or of Our Software or Your Software could lead directly to death, personal injury,
or severe physical or environmental damage (“High Risk
Activities”). Notwithstanding any other
provision of this License, you may not use or permit any third party to use Our Software, Your
Software or any Designated Equipment in connection with any High Risk Activity. You assume all risk
of such uses, and if you or your customers at any tier use or permit the use of any such item(s) in
connection with High Risk Activities, you agree to indemnify, defend and hold us harmless from all
claims, expenses and liability arising as a result of such use.




	10.	 	TERM, TERMINATION





     10.1.
Term. Unless earlier terminated pursuant to this Section 10, this License will continue for the Term.




     10.2. Termination for Cause. This License and all
licenses granted hereby will automatically terminate upon
any breach by you of a provision of Sections 2.2.1 (Source
Code), 2.2.3 (Reference Designs), 2.3 (No Open Source), 2.4
(Restrictions), or 12 (Confidentiality). In addition, this
License and all licenses granted hereby may be terminated by
either Party if the other party breaches any provision of this




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ATHEROS
TECHNOLOGY LICENSE AGREEMENT



License and fails to remedy such breach within 30 days of receipt of written notice.




     10.3. Bankruptcy. We may terminate this License immediately upon written notice upon the
occurrence of any one of the following events: (i) a receiver is appointed for either you or your
property; (ii) you become insolvent or admit in writing your inability to pay your debts as they
become due; (iii) you make a general assignment for the benefit of your creditors; (iv) you
commence, or have commenced against you, proceedings under any bankruptcy, insolvency or debtor’s
relief law, which proceedings are not dismissed within 60 days; or (v) you are liquidated,
dissolved or cease to do business.




	11.	 	EFFECT OF TERMINATION/EXPIRATION





     11.1. Return of Materials. On any termination or
expiration of this License, except as provided in Section 11.2
(Retention of Copies, Sell-Off), you agree immediately to
cease all use of, and destroy, all copies (including backup
copies) of the Licensed Technology, including all tangibles
incorporating any such items (but excluding Designated
Equipment), and promptly to certify to us in writing that you
have done so.



     11.2. Retention of Copies, Sell-Off. Unless this
License is terminated automatically or by us for cause
pursuant to Section 10.2 (Termination for Cause), you may:
(a) retain copies of the Licensed Technology solely for use in
supporting customers that purchased Designated Equipment
prior to the expiration or termination of this License, and (b)
sell inventory of Designated Equipment that has already been
manufactured or is in process on the date of expiration or
termination.



     11.3. Survival. Termination or expiration of this License will not affect Object Code
sublicenses granted to purchasers of Designated Equipment pursuant to Section 2.2.2 (Object Code)
prior to expiration or termination, each of which will remain in effect in accordance with its
terms. In addition, the parties’ rights and obligations under the following provisions
will survive any termination or expiration of this License: Sections 2.4 (Restrictions), 3
(Intellectual Property), 4 (Fees, Payments, Taxes), 6 (Third Party Rights), 7.3 (Warranty
Disclaimer and Limited Remedies), 7.4 (Intellectual Property Indemnity), 9 (Limitation of
Liability), 11 (Effect of Termination/Expiration), 12 (Confidentiality) and 13 (General), and the
last sentence of Section 5.2 (Development Hardware).




	12.	 	CONFIDENTIALITY





     12.1. Definition. “Confidential Information” means: (i) any information disclosed by us to
you, either directly or indirectly, during the Term, by any means (whether in writing, orally or
visually, or by permitting inspection of tangible objects (including without limitation documents,
prototypes, samples, plant and equipment)), provided such information is designated as
“Confidential”, “Proprietary” or some similar designation at the time of disclosure; and (ii) the
Licensed Technology, whether or not so designated. Confidential Information does not, however,
include any information that you demonstrate: (a) is legally and publicly available, other than
through a breach of your obligations under this Section 12, (b) you received, without an obligation
of confidentiality, from a third party that was entitled so to disclose it, or (c) is independently
developed by you without use of or reference to Confidential Information. Nothing in this License
will prevent you from disclosing Confidential Information to the extent you are required by law to
disclose such Confidential Information, provided you gives us prompt written notice of that
requirement prior to such disclosure and cooperate with our efforts to obtain an order protecting
the information from public disclosure.



     12.2. Non-use and Non-disclosure. You agree not to
disclose Confidential Information other than to those of your
employees and contractors who have a need to know to
exercise the rights and licenses granted to you herein, and not
to use Confidential Information other than in the exercise of
such rights and licenses, or to determine whether and on what
terms to purchase Components from us. You agree that prior
to any disclosure by you of Confidential Information to an
employee or contractor, you will have entered into a written
non-disclosure agreement with such person, containing terms
at least as strict as those contained in this Section 12. You
may not reverse engineer, disassemble or decompile any
prototypes, software or other tangible objects that embody
Confidential Information and that are provided hereunder.



     12.3. Maintenance of Confidentiality. You agree to
take reasonable measures to protect the secrecy of and avoid
the unauthorized disclosure or use of Confidential
Information, including at least those measures that you takes
to protect your own most highly confidential information.
You may not make any copies of Confidential Information
except as expressly permitted by Section 2.2 (Grant) or as
approved by us in advance, in writing. You must reproduce
all proprietary right notices on any such approved copies, in
the same manner in which such notices were set forth in or
on the original.



     12.4. Return of Confidential Information. Except as
provided in Section 11.2 (Retention of Copies, Sell-Off), you
agree promptly to return to us or destroy, at our request, all
copies of Confidential Information, in whatever form or
media, and to certify to us in writing that you have done so.



     12.5. Remedies. You agree that any violation or
threatened violation of any provision of this Section 12 will
cause us irreparable injury, entitling us to injunctive relief in
addition to all legal remedies.




     12.6. Announcement. Neither parry will disclose,
advertise or publish the terms or conditions of this License
without the written consent of the other party, except (i) as
may be required by law and (ii) to its professional advisors




Page 7 of 14









 






ATHEROS
TECHNOLOGY LICENSE AGREEMENT




and to
investors or potential investors who are under an obligation of
confidentiality at least as restrictive as that contained in this Section 12.





	13.	 	GENERAL





     13.1. Notices. All notices and consents required or
permitted under this License must be in writing and sent, if to
us, to the address listed in the signature block above to the
attention of Legal Department, and if to you, to the address
listed on Exhibit A under Legal or, if none, the address listed
in the signature block above; or to such other address as is
specified by notice from time to time. Any notice of non-
performance, termination or non-renewal must be sent by
nationally (or, if applicable, internationally) recognized
overnight courier or by certified mail, return receipt
requested. All other notices and consents may be sent as
provided above or by fax or e-mail (if to us, to 408-773-9909
or legal@atheros.com) with a confirmation of receipt.
Notices will be deemed given and received on receipt (except
that faxes and e-mails received on a non-business day
(according to the recipient’s business calendar) will be
deemed received on the next business day). If a notice cannot
be received because the recipient has moved and failed to
notify the sender of its change of address, or because the
recipient is out of business, then a notice will be deemed
received when sent.



     13.2. Entire Agreement. This License, together with
its Exhibit(s), constitutes the complete, exclusive and final
expression of the parties’ agreement and supersedes all prior
and contemporaneous understandings, proposals,
representations or communications, oral or written, relating
to the subject matter hereof. Without limiting the generality
of the foregoing, this Agreement supersedes the Non-Exclusive Technology License Agreement dated November
24, 2003 (the “Prior Agreement”) by and between the parties
hereto, and such Prior Agreement is hereby terminated and of
no further force or effect, except those provisions of the Prior
Agreement that by their terms survive any termination of the
Prior Agreement. Any technology licensed to you under the
Prior Agreement shall be deemed to be licensed to you solely
pursuant to the terms of this Agreement.



     13.3. Governing Law, Exclusive Jurisdiction and Venue. This License will be governed by and
construed in accordance with the laws of the State of California without regard to its conflict of
laws provisions. The provisions of the UN Convention on Contracts for the International Sale of
Goods will not apply. Subject to the provisions of Section 13.4 (Arbitration), each party hereby:
(i) agrees that any action, suit or proceeding
(“Action”) that arises, in whole or in part, under or
in connection with this License will be brought in the United States District Court for the
Northern District of California San Jose Branch or the Superior or Municipal Courts of the State of
California, Santa Clara County; and (ii) irrevocably and unconditionally consents and submits to
the jurisdiction of all such courts for purposes of any such Action, and irrevocably and
unconditionally waives any objection (such as inconvenient forum) to the laying of venue of any
Action in any such court.




     13.4.
Arbitration. All disputes, claims, and controversies between the parties arising out of
or related to this License or the breach hereof will be settled by
arbitration. The arbitration
will be conducted by one arbitrator appointed pursuant to the applicable procedures of JAMS and
conducted under the then-current Commercial Arbitration Rules of the American Arbitration
Association. The arbitrator will issue an award in support of his or her decision within 120 days
of the selection of the arbitrator, stating the legal and factual basis for the decision and the
reasoning leading to such decision. The decision and award of the arbitrator will be final and
binding and judgment on the award so rendered may be entered in any court having jurisdiction
thereof. The arbitration will be held in Santa Clara County, California, and the award will be
deemed to be made in California. Both parties will share the costs of the arbitration equally,
except that each party will bear its own costs and expenses, including attorney’s fees, witness
fees, travel expenses, and preparation costs.



          Notwithstanding any other provision of this Agreement, a party may seek injunctive relief (or
any other provisional remedy) from any court having jurisdiction over the parties and the subject
matter of the dispute.



          Within 30 days after the filing of the response to the arbitration demand, each party will
provide the other with copies of all documents that are likely to bear significantly on their
respective claims and defenses.



          The arbitrator will allow the parties to engage in other discovery, including depositions,
unless the arbitrator determines that the likely benefit of the proposed discovery is outweighed by
the burden and expense of the proposed discovery, taking into account the amount in controversy,
the importance of the issues at stake in the arbitration, the importance of the proposed discovery
in resolving those issues, and the parties’ desire to seek justice while minimizing the time and
expense of arbitrating their dispute. The arbitrator’s decisions regarding discovery will be final
and conclusive.



          This agreement to arbitrate and any award rendered by the arbitrator will be enforceable under
California law and Title 9 of the United States Code, to the extent applicable. All questions
concerning the arbitrability of a dispute (including whether the parties have agreed to arbitrate
the dispute) will also be decided by arbitration, and this agreement to arbitrate applies
notwithstanding any claim that all or any part of this agreement is void, voidable or unenforceable
for any reason. Neither party will have the right to appeal the arbitrator’s decision.



          Each party hereby submits to the jurisdiction of all duly constituted courts of the State of
California and the United States District Court for the Northern District of California for the
purpose of enforcement of this agreement to arbitrate and any awards rendered by such arbitration;




Page 8 of 14









 






ATHEROS
TECHNOLOGY LICENSE AGREEMENT



provided that this sentence does not limit the right of either party to enforce any
award in any proper forum.




     13.5. Attorney’s Fees. Except as provided in Section
13.4 (Arbitration), in any action to enforce this License or
collect on any judgment rendered, the prevailing party will be
entitled to recover all court costs and reasonable legal fees
and expenses incurred.



     13.6. No Assignment. Your rights and obligations
under this License are personal, and may not be assigned or
transferred, voluntarily, by operation of law or otherwise,
without our prior written consent, which consent will not be
unreasonably withheld if the proposed transfer occurs in
connection with the sale of substantially all of your assets or
outstanding voting securities to a third party that is not an
Atheros Competitor. Any attempt assignment or transfer
without our consent will be void. For purposes of this
License, a Change of Control will be deemed an assignment
that requires our prior written consent. “Change of Control”
means the acquisition of beneficial ownership of more than
50% of your then-outstanding voting securities entitled to
vote generally in the election of directors, including any such
acquisition that is made pursuant to a merger or other
business combination.



     13.7. Government Authorization. You are
responsible for all governmental authorizations and approvals relating to this License. You
represent and warrant that as of the Effective Date and throughout the Term, you are and will
remain in compliance with all applicable governmental laws, rules and regulations necessary for you
to enter into this License and execute your obligations under this License including, without
limitation, any governmental authorization necessary for you to contract with a foreign party. You
represent and warrant to us that you are fully knowledgeable regarding and will be responsible for
any applicable governmental regulatory compliance matter affecting the design, manufacture or
distribution of Your Software or of Designated Equipment.



     13.8. Export Law Assurances. You may not
download, use, transfer, export or re-export any Licensed
Technology or any product or derivative work thereof, or any
Confidential Information, except as authorized by United
States law and the laws of the jurisdiction in which the
Licensed Technology was obtained. In particular, but without
limitation, Licensed Technology and derivative works thereof
may not be, downloaded, used, exported or re-exported (a) in
or to (or by or to a national or resident of) any country then
under U.S. economic embargo, or (b) to any person or entity
on the U.S. Treasury Department’s list of Specially Designated Nationals or on the U.S. Department of Commerce’s
Denied Persons List or Entity List. By downloading or using
Licensed Technology, you represent and warrant that you are
not located in, under control of, or a national or resident of
any such country or on any such list.



     13.9. Records and Audit. During the Term and for
six months thereafter, we will have the right at reasonable
times no more than once per year, directly or through its
representative, upon a minimum of 14 days written notice
setting forth the period under review, to review your books
and records regarding your adherence to the Intellectual
Property Rights provisions of this License.



     13.10. Amendment, Waiver, Remedies. No
amendment or modification of this License is binding unless
signed by you and an officer of Atheros. The observance of
any provision of this License may be waived (either generally
or in a particular instance) only by the written consent of the
party or parties adversely affected by such waiver. No failure
of a party to enforce its rights under this License will be
deemed a waiver. A waiver will be narrowly construed to
apply solely to the specific instance to which such waiver is
directed. Except as expressly stated herein to the contrary, the
exercise of any right or remedy provided in this License will
be without prejudice to the right to exercise any other right or
remedy provided by law or equity.



     13.11. Severability. If any provision of this License or
portion thereof is found to be invalid, illegal or
unenforceable, such provision will be limited or eliminated to
the minimum extent necessary and this License will
otherwise remain in full force and effect. In addition, the
parties agree to substitute for the limited or eliminated
provision a new provision that effects, as nearly as possible,
the original intent of the parties.



     13.12. Counterparts, Fax Signatures. This License
may be executed in two or more counterparts, each of which
will be deemed an original, but all of which together will
constitute one and the same instrument. Facsimile signatures
will be considered original signatures.



     13.13. Mutual Negotiations. Each provision of this
License will be fairly interpreted and construed in accordance
with its provisions and without any strict interpretation or
construction in favor of or against either party.



     13.14. Choice of Language. The original of this
License is in English. You waive any right to have this
License written in any other language, regardless of whether
your country of incorporation is English speaking.



     13.15. No Third Party Beneficiaries. No provision of
this Agreement is intended or will be construed to confer
upon or give to any person or entity other than you and us
any rights, remedies or other benefits under or by reason of
this License.



END BODY OF AGREEMENT.




EXHIBITS BEGIN ON NEXT PAGE



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ATHEROS
TECHNOLOGY LICENSE AGREEMENT

Exhibit A








			
	1.	 	YOUR CONTACTS.





	 	 	 
	LEGAL

	Name
	 	 
	Address
	 	 
	Telephone
	 	 
	Fax
	 	 
	Email
	 	 
	 
	 	 
	SHIPPING

	Name
	 	 
	Address
	 	 
	Telephone
	 	 
	Fax
	 	 
	Email
	 	 
	 
	 	 
	BILLING

	Name
	 	 
	Address
	 	 
	Telephone
	 	 
	Fax
	 	 
	Email
	 	 
	 
	 	 
	TECHNICAL/DEVELOPMENT

	Name
	 	 
	Address
	 	 
	Telephone
	 	 
	Fax
	 	 
	Email
	 	 
	 
	 	 
	QUALITY/PROCUREMENT

	Name
	 	 
	Address
	 	 
	Telephone
	 	 
	Fax
	 	 
	Email
	 	 






Page 10 of 14









 






ATHEROS
TECHNOLOGY LICENSE AGREEMENT






	2.	 	INITIAL TERM OF LICENSE. Beginning on the Effective
Date and continuing until November 24, 2008.









	3.	 	LICENSE TYPE. General Purpose






	4.	 	SUPPORT SERVICE SITE. Support services are offered only to a single site. You may have several development locations, of which one must be designated as the site to which Atheros will
deliver support services.





	 	 	 
	Support Service Site Address

	 	Same as Technical/Development Address unless this block modified. If
no Technical/Development Address provided, then same as signature
block address on page 1.







	5.	 	FEES.





	 	 	 	 	 
	Item	 	Fees
	Software License Fee

	 	$	[ * * * ]	(1)
	Annual
Support Fee ($[ * * * ] per year)

	 	$	[ * * * ]	(1)








 




			
	(1)	 	The parties acknowledge that a Software License Fee of $[ * *
* ] was paid by Licensee under the
Prior Agreement, and that the Software License Fee hereunder relates to additional Licensed
Technology being provided to Licensee hereunder. The parties also acknowledge that the Annual
Support Fees under the Prior Agreement have been paid by Licensee
through November 23, 2005 and
shall continue to apply under this Agreement during the period from the Effective Date through
November 23, 2005. The Annual Support Fees under this Agreement shall therefore be invoiced and
payable on November 24, 2005 and on each November 24 thereafter of each year of the Term.






	6.	 	LICENSED TECHNOLOGY. Atheros will deliver to You:






6.1. Reference Designs, Technical Documentation and Software Modules




These items are provided without additional charge. In addition, you may elect to
purchase Development Hardware separately.





	 	 	 	 	 
	 	 	Documentation	 	Modules
	 

	 	Programmer’s Guide
	 	AP Driver: Source & Object Code
	 

	 	MAC/Baseband Processor Data Sheet(s)	 	 
	 

	 	User’s Guide
	 	NDIS Driver: Source & Object Code
	 

	 	Test plan	 	 
	 

	 	User’s Guide as required for test
	 	ART (Atheros Radio Test): Source & Object Code
	 

	 	EEPROM Device Configuration Guide	 	 
	 

	 	 	 	LinkMon and/or ACU Source
	 
	 	 	 	 
	SW

	 	 	 	AP Board Support Package (BSP)
	 
	 	 	 	 
	 

	 	Test plan	 	 
	 

	 	ART Diagnostic SW Binary Code	 	 
	 

	 	ART Documentation	 	 
	 

	 	RF Front-end WLAN Data Sheet(s)	 	 
	 

	 	MAC/Baseband Processor Data Sheet(s)	 	 
	 

	 	Reference Guide(s)	 	 
	 

	 	Schematic(s)	 	 
	HW

	 	BOM/AVL(s)	 	 








 






*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been requested with
respect to the omitted portions.





Page 11 of 14









 





ATHEROS
TECHNOLOGY LICENSE AGREEMENT





Layout Diagrams

Regulatory Compliance Guide

Sample Manufacturing Test Flow

EEPROM Device Configuration Guide




Page 12 of 14









 





ATHEROS
TECHNOLOGY LICENSE AGREEMENT






Development Hardware Prices (subject to change without notice):





These prices apply only to Development Hardware. Atheros reserves the right to limit the
quantity of Development Hardware that may be purchased. Refer to Part Numbers (available
separately from Atheros sales staff) to order.




	 	 	 	 	 	 	 	 	 
	Part	 	Description	 	ID	 	Price
	RF or MAC/BB Chip	 	One MAC/BB chip or one RF chip from multi-chip solution
	 	Chip	 	$	[***]	 
	Single Chip Solution	 	Single-chip MAC/BB/RF solution
	 	Chip	 	$	[***]	 
	AP Reference Board	 	Access Point Integrated Reference or Development Board
	 	API	 	$	[***]	 
	Client Reference Board	 	Cardbus,
MiniPCI or other Client Reference or Development Board
	 	BCB	 	$	[***]	 
	Embedded Reference Board	 	Embedded WLAN Integrated Reference or Development Board
	 	EBI	 	$	[***]	 





 





*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been requested with
respect to the omitted portions.




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ATHEROS
TECHNOLOGY LICENSE AGREEMENT





EXHIBIT B

MINIMUM TERMS OF END USER LICENSE AGREEMENT



Your End User License Agreement will include terms at least as restrictive of Atheros’
liabilities and at least at protective of Atheros’ rights as the following:





	1.	 	License Grant and Restrictions. [Licensee] grants End User a non-exclusive
license to use the software program and related documentation (“Software”) only in conjunction with [name of a
product containing an Atheros Wireless LAN Chipset (“Product”)]. End User only obtains a non-exclusive
license to use the object code version of the Software with the Product and only in the country where the
Product was purchased. This Software is protected by copyright laws and international copyright treaties, as well
as other intellectual property laws and treaties. The Software is
licensed, not sold. Title does not pass to
End User. There is no implied license, right or interest granted in any copyright, patent, trade secret,
trademark, invention or other intellectual property right.
	 
	2.	 	No Reverse Engineering. End User will not decompile, disassemble or otherwise
reverse engineer the Software. If End User is a European Union resident, information necessary to achieve
interoperability with other programs is available upon request.
	 
	3.	 	Termination. Upon any violation of any of the provisions of this Agreement, End
User’s rights to use the Software will automatically terminate and End User will be obligated to destroy all
copies of the Software. End User may terminate this Agreement at any time by destroying the Software.
	 
	 	 	[Licensee]’S SUPPLIERS MAKE NO WARRANTIES,
EXPRESS OR IMPLIED, AND WILL NOT BE LIABLE
TO YOU UNDER ANY LEGAL THEORY FOR ANY DAMAGES OF ANY KIND, DIRECT, CONSEQUENTIAL, OR
OTHERWISE, ARISING IN CONNECTION WITH THE PRODUCT OR ANY SOFTWARE.
	 
	4.	 	Export. The Software may only be operated, exported or re-exported in compliance
with all applicable laws and export regulations of the United States and the country in which End User obtained
them. The Software is specifically subject to the U.S. Export Administration Regulations. End User may not
export, directly or indirectly, the Software or technical data licensed hereunder or the direct product
thereof to any country, individual or entity for which the United States Government or any agency thereof, at
the time of export, requires an export license or other government approval, without first obtaining such
license or approval.






Page 14 of 14