Exhibit
10.1


 


Development, Publishing and Distribution
Agreement


 


This
Development, Publishing and Distribution Agreement is entered into this 7th day
of February 2003 by and between IXIA, a California corporation doing business
at 26601 West Agoura Road, Calabasas, CA 91302 (“Ixia”), and RADVIEW SOFTWARE,
Ltd., an Israeli corporation with Corporate headquarters located at 7 New
England Executive Park, Burlington, Massachusetts 01803 (“RadView”).


 


In
consideration of the premises and mutual covenants contained herein, and other
valuable consideration, the parties agree as follows:


 


1.             Definitions


 


For
purposes of this Agreement, the following terms shall have the meanings set
forth:


 


1.1.          “includes”; “including”. 
Except where followed directly by the word “only”, the terms “includes”
or “including” shall mean “includes, but is not limited to” and “including, but
not limited to” respectively, it being the intention of the parties that any
listing following thereafter is illustrative and not exclusive or exhaustive.


 


1.2.          “Product”.  The term
“Product” shall mean any of the computer software products of RadView
identified in Exhibit “A” attached hereto and incorporated herein, as such
exhibit may be modified from time to time by the parties, including any updates,
upgrades, new releases and Corrections thereto.


 


1.3.          “Unit”.  The term “Unit”
shall mean shall mean a standard stockkeeping unit of RadView of a Product,
comprising one or more copies of the Product, together with any user manual(s)
and any supplementary materials, all as determined by RadView in its sole
discretion.


 


1.4.          “Access Key”.  The term
“Access Key” shall mean a numeric or alphanumeric code (and not a physical
object) which must be entered by a user into a Product on the user’s computer
in order to activate that Product for full licensed use, as described more
fully in Section 2.1 below.


 


1.5.          “Electronic Delivery”. 
The term “Electronic Delivery” shall mean the delivery of a copy of a
Product to an end user, or the use by an end user of the Product via any
electronic means now known or hereafter devised whereby all or part of the
Product is delivered without transporting a physical object incorporating the
Product, including where the Product is accessed by the end user over the
Internet.


 


1.6.          “sale”; “sell”; “vend”; etc.  The terms “sale”, “sell”, “vend” and similar
terms are used herein in the context of distribution of the Products to mean
the sale of a license to use a copy or configuration of a Product.  The transfer to a remarketer or an end user
of a copy of a Product is a license only and does not transfer any right,
title, or interest in or to such Product to such remarketer or end user.


 


1.7.          “Nonconformity”.  The
term “Nonconformity” shall mean a material non-conformance with RadView’s
published technical and operational specifications for the Products, any
Radview Product user documentation or any Radview published technical
documentation, in each case as identified (by publication title and publication
date) in Exhibit A to this Agreement.


 


1.8.          “Option”.  The term
“Option” shall mean the option granted to Ixia to acquire expanded rights, set
forth in Section 16.1 below.


 


1.9.          “Effective Date”.  The
term “Effective Date” shall mean the date first set forth above which, upon
execution of this Agreement by both parties, shall be the effective date of
this Agreement.


 


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1.10.        “Termination Date”.  The
term “Termination Date” shall mean the date upon which any termination of this
Agreement, for any reason whatsoever (including expiration), becomes effective.


 


1.11.        Other Terms.  The following other terms are defined in the
Sections cited:


 


“Adjusted
Gross Revenue” - Section ?.


“Advance
Payment” - Section 15.3.


“Confidential
Information” - Section 19.1.


“Correction”
- Section 8.2.


“Developer’s
Kit” - Section 8.1.


“Expanded
Rights” - Section 16.1.


“Major
Upgrade” - Section 9.1.


“Minor
Upgrade” - Section 8.3.


“Option
Exercise Fee” - Section 16.3.1.


“Ported
Version” - Section 8.1.


“Product
Name” - Section 20.4.


“Product
Series” - Section 20.5


“Series
Identifier” - Section 20.5


“Source
Materials” - Section 13.1.


“Source
Materials License” - Section 13.2.


“Term”
- Section 3.1.


 


2.             Nature of Transaction


 


2.1.          Nature of the Products. 
RadView publishes and sells the Products.  The Products can be configured in various ways according to the
Price list as contained in Exhibit A, unless mutually agreed to by RadView and
Ixia. In order to license and operate the Product, Ixia must supply a CPU and
or a machine identification number with the purchase order to RadView. Access
License Keys are provided separately for the Products. Upon receipt of an order
RadView will prepare an Access License Key and deliver electronically to Ixia.
Evaluation and demonstration copies of the Products, with limited load usage
and time (measured in days) per RadView’s current evaluation policy, can be
manufactured, sold and distributed by Ixia. 
RadView will provide the Access Key(s) or password as required to assist
the pre sales process.


 


2.2.          Nature of the Transaction. 
Under this Agreement, Ixia is granted the right, for a term of two (2)
years, to distribute the Products, as further defined below.  Ixia is granted an option to acquire more
extensive rights, extending into perpetuity, with respect to the Products, as
further defined below.


 


3.             Term


 


3.1.          Term.  The term of this Agreement
shall commence upon the Effective Date and shall continue for a period of two
(2) years, until the second anniversary of the Effective Date, unless
terminated earlier as set forth in this Section 18 below (the “Term”) or
unless the Option is exercised.


 


3.2.          Renewal.  Neither party shall be under
any obligation to renew or extend the operation of this Agreement or to enter
into any new agreement with the other party following the expiration of the
Term; and neither party shall be under any obligation of any kind whatsoever to
the other party by reason of any failure or refusal to renew or extend the
operation of this Agreement or to enter into any new agreement with the other
party, following expiration of the Term.


 


3.3.          Term If Option Is Exercised.  In
the event that Ixia exercises the Option, then this Agreement shall continue in
effect unless terminated by either party in accordance with Section 18
below.  Upon exercise of the Option, if
the Option is exercised, the term “Term” shall include the period after the
exercise of the Option


 


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during
which this Agreement is in force but the exercise of the Option shall not be
deemed to extend the Term beyond twenty-four (24) months unless otherwise
agreed to in writing by the parties.


 


4.             Grant of Rights


 


4.1.          Manufacturing and Distribution of Products
(Not Including Access Keys).  RadView hereby grants to Ixia the
non-exclusive (except as set forth in Section 4.5 below) right during the
Term to prepare, manufacture, purchase, publish, market and distribute copies
of each Product, in object code form only and without Access Keys, but with
user documentation, in all channels and classes of trade (whether now known or
hereafter established), in all media and forms of expression or communication
now known or later developed, including by Electronic Delivery of any of the
foregoing, throughout the world. All copies manufactured or made shall contain
all copyright, trademark and other proprietary notices where and as contained
in the original.  Such grant shall
include the right to vend copies of each Product in conjunction with one or
more other hardware and/or software products in such that there is a single
price to the end purchaser for the combined products, and also to vend each
Product standing alone.  Such grant
shall also include the right to use and reasonably adapt such marketing
materials of RadView as Ixia deems appropriate provided that no such adaptation
shall alter in any material way the representations made in such materials with
respect to the Products and /or RadView. 
RadView shall do nothing which would be inconsistent with this grant of
rights. (note to be reviewed with operations groups)


 


4.2.          Purchase and Drop-Shipment of Units. 
RadView hereby grants to Ixia the non-exclusive (except as set forth in
Section 4.5 below) right during the Term to purchase all necessary Units
from RadView.  At Ixia’s request and
expense (not to exceed one hundred dollars ($100)), RadView shall also drop
ship purchased Units to the respective customers.  In addition, and also at Ixia’s request, RadView shall deliver to
Ixia a reasonable number of Units for Ixia to maintain in its ‘inventory.’  Notwithstanding the foregoing, it is the
parties’ expectation and intention that delivery of the Product, from RadView
to Ixia and from Ixia to its customers, will typically be effected by
Electronic Delivery as further described in Section 6 below.


 


4.3.          Purchase and Resale of Access Keys. 
RadView hereby grants to Ixia the non-exclusive (except as set forth in
Section 4.5 below) right during the Term to purchase all necessary Access
Keys for the copies of the Products sold by Ixia pursuant to Section 4.1
above, and to resell such Access Keys to the respective customers, in
accordance with the procedure set forth in Section 7 below.


 


4.4.          Access Keys For Ixia’s Internal and Sales Use. 
RadView will initially provide, at no charge to Ixia, licenses and
Access Keys for (a) ten (10) copies of the Product for Ixia’s internal
development and support purposes, and 
(b) up to one hundred (100) limited use copies of the Product to be used
by Ixia sales, pre-sales and marketing personnel which copies shall be used
solely for marketing, demonstration and pre-sales purposes.  Ixia also acknowledges that it will be
required to replace the limited use copies with new updated copies of the
Product as New Releases are delivered and, in any event, no less than twice per
year.  Licenses to additional copies of
the Product shall be provided to Ixia by RadView as agreed upon by the parties.
Ixia shall maintain records as to where each such copy is loaded and which
persons are authorized to use the same. 
..


 


4.5.          Limited Exclusivity. 
Notwithstanding anything to the contrary contained in Section 4.1
above, the rights granted to Ixia hereunder shall be exclusive during the Term
as to any of the parties identified in Exhibit “B” attached hereto and
incorporated herein, and RadView shall not have the right to, and shall not,
grant, or authorize or permit any other party (other than Ixia) to grant, any
rights (other than the rights RadView customarily grants to end users) with
respect to the Products, or any portion of the Products, to any such party,
identified in Exhibit “B” during the Term. 
If Ixia exercises the Option, per the terms of this agreement, RadView,
upon such exercise, will for a period of three (3) years from date of Option
exercise continue with the limited exclusivity as in effect prior to Ixia’s
exercise of Option.


 


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4.6.          Subdistributors. 
Ixia will have the right to distribute the Products through Ixia’s
authorized distributors and or resellers subject to the terms contained in this
Agreement. The above-mentioned subdistribution shall not relieve Ixia of any of
its undertaking or commitment under this Agreement.


 


4.7.          Marketing of the Products. 
Ixia shall determine, in its sole discretion, the manner and method of
marketing and distributing the Products and exploiting any other rights it has
been granted hereunder with respect to the Products, including marketing
expenditures, advertising and promotion, packaging, channels of distribution
and the suggested retail price or other pricing of the Products or such other
rights; provided, however, that such marketing, distribution and exploitation
shall be subject to and shall not violate any terms in this Agreement,
including, without limitation, those concerning Confidential Information and
the proprietary rights of each party hereunder.


 


4.8.          Further Assurances of RadView. 
RadView agrees to execute such documents as Ixia may reasonably request
from time to time to support Ixia in its exercise of any and all of the rights
granted to Ixia by RadView hereunder; provided, however, that the parties shall
work together to ensure that the fulfillment of such requests shall be
commercially reasonable in timing and substance.  RadView shall take all reasonable steps to have each of those
persons who has or will have participated for or on behalf of RadView execute
any such agreements.


 


4.9.          No Modifications or Derivative Works. 
Ixia shall not modify any Product or remove or alter any copyright or
other proprietary notices or legends therefrom.  Ixia shall not disassemble, decompile or otherwise reverse
engineer any portion of any Product except as expressly permitted by this
Agreement.  Ixia shall not be entitled
to prepare any derivative works of any Product which would constitute an
infringement of RadView’s intellectual property rights in the Products.  For purposes of this Agreement, the
following shall not be considered to be modification of, or creation a
derivative work of, any Product, and the rights granted to Ixia hereunder shall
include the following:


 


(i)            including
any Product in any combination with any other Ixia hardware or software;


 


(ii)           creating
and adding an “install” or similar program for assisting users in the
installation or operation of any Product


 


(iii)          creating
and adding operating scripts for any Product; and


 


(iv)          taking
any steps reasonably necessary to adapt a Product to the operating environment
in which it will be operated.


 


5.             Third Party Rights


 


RadView
shall be solely responsible, at its own expense, for obtaining all rights
and/or permissions necessary for the use of all technology contained in the
Products and the commercial exploitation of the Products as contemplated by
this Agreement.  RadView agrees that it
will make any payments required to be made to any third parties, and will do so
on a timely basis.  Exhibit “C” attached
hereto and incorporated herein identifies all third party rights which are
required for such use and commercial exploitation.


 


6.             Delivery of Products To Ixia


 


6.1.          Initial Delivery. 
Promptly after execution of this Agreement, RadView shall deliver to
Ixia two (2) copies, and may upon request deliver additional copies not to
exceed a total of ten (10) copies of each Product together with any technical
documentation, to the extent then currently available, reasonably necessary for
Ixia to exercise its rights hereunder (but not including, for purposes of
delivery under this Section 6 only, any technical documentation which is
pertinent only to the source code, or other source materials, of a Product) and
the end-user documentation for the Product.


 


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6.2.          Delivery of Products First Released
Commercially After Effective Date.  As to any Product which has
not been released commercially as of the Effective Date, but as to which Ixia
has been granted rights under this Agreement, RadView shall deliver to Ixia two
(2) copies of each pre-release version of such Product that is provided to any
customer or reseller of RadView, not later than the time of the earliest
delivery of such pre-release version to any customer or reseller. And
pre-release copies of Products are delivered “as is,” without any warranty,
implied or express.  In addition, at
such time as RadView determines that the Product is ready to be manufactured
for commercial release, RadView shall deliver to Ixia two (2) copies of such
Product.  Each delivery under this
Section 6.2 shall also include any available technical documentation
reasonably necessary for Ixia to exercise its rights hereunder (but not
including, for purposes of delivery under this Section 6 only, any
technical documentation which is pertinent only to the source code, or other
source materials, of the Product) and any end-user documentation.  Notwithstanding the foregoing, RadView shall
use reasonable efforts to inform Ixia about such Product during the development
of such Product.  RadView’s obligations
under this Section 6.2 concern versions of the Products that are not Ported
Products (as defined in Section 8.1 below), and accordingly are in
addition to, and not instead of, RadView’s obligations under Section 8.1
below.


 


6.3.          Delivery of End-User Documentation and
Marketing Materials.  RadView shall deliver to Ixia all end-user
documentation for the Products, and all deliverable marketing materials, in
electronic form and, upon Ixia’s request, shall also deliver up to two (2)
hard-copies of the same.  The electronic
form of an item shall be the files in user-modifiable form in the file format
of the application used to prepare the item, such that Ixia can modify the item
for use consistent with this Agreement.


 


7.             Procedure For Access Keys


 


Following
execution of this Agreement, the parties shall work together to set up a secure
website or other electronic system through which Ixia will be able to obtain
License Keys for properly licensed products automatically.  Such website or electronic system shall,
upon entry by Ixia of the Ixia purchase order for the Products and the applicable
machine identification numbers for the machines on which the Products will be
installed, automatically deliver to Ixia the authorized number of Access
Keys.  Upon delivery of the keys,
RadView shall be authorized to invoice Ixia for the sale of the Products.  Prior to the establishment of an automatic
key delivery process, or in the event operation of the website or electronic
system is impaired, the parties will use their best efforts to promptly arrange
for a manual intervention workaround process pursuant to which Access Keys will
be timely delivered (and in any event, delivered within no more than five (5)
business days following receipt of a valid order from Ixia) with respect to
Ixia’s customer orders for the period during which such website or electronic
system is impaired or not available.


 


8.             Continuing Obligations of
RadView


 


8.1.          Portation of Products To Ixia Device
Operating Environment.  RadView shall prepare versions of the
Products, as identified on Exhibit A which are ported to Ixia’s proprietary
device operating environment (each, a “Ported Version”) in accordance with the
specifications and other information set forth in Ixia’s standard developer’s
kit (the “Developer’s Kit”).  Upon
RadView’s request, Ixia shall provide, at no charge, copies of such developer’s
kit to RadView for RadView’s internal use in preparing the Ported Versions, and
Ixia shall provide reasonable consultation and technical support upon request
by RadView in order to support such porting of the Products.


 


8.1.1.       Current Products.  Promptly after execution of this Agreement,
RadView will commence, and proceed diligently with, the preparation of Ported
Versions of the current versions of the Products to the current version of the
products of Ixia, as identified in Exhibit A-1, and shall deliver each such
Ported Version in a condition suitable for commercial release to Ixia not later
than sixty days from Ixia’s delivery to RadView of the chassis and cards
referenced in Section 8.1.3 below. With respect to each new version of or
new platform for Ixia products, the parties shall work together to determine
the scope of the work which may be required to effect the porting of the
Products.  RadView shall perform such
Product porting with respect to the


 


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new
Ixia versions and/or platforms provided that such porting does not require a
material effort by RadView as evaluate on a case by case basis as well as on an
aggregate annual basis.  In the event a
material effort is required of RadView to perform one or more Product ports,
the parties shall meet to agree upon the terms pursuant to which port shall be
effected; Ixia shall pay to RadView RadView’s one hundred twenty-five percent
(125%) of RadView’s direct costs for such agreed upon ports.


 


8.1.2.       Products First Released Commercially After Effective Date.  As
to any Product which has not been released commercially as of the Effective
Date, but as to which Ixia has been granted rights under this Agreement, and
subject to the provisions of Section 8.1.1 above, RadView shall commence
and complete preparation of a Ported Version of such Product as part of the
normal QA process for the commercial release of WebLoad Products.


 


8.1.3        Delivery of Hardware and Cards by Ixia. 
Ixia shall deliver to RadView, at no cost and on a timely basis, the
Ixia chassis and each load module card to which Ixia is asking RadView to port
the Products.  The delivery of the
chassis and cards for the Ixia products identified in Exhibit A-1 shall occur
promptly following execution of this Agreement.


 


8.2.          Corrections.  As used herein, the term
“Correction” shall mean any revised version of any Product or other computer
software or procedure, including a patch or a workaround, which revised version
or other computer software or procedure is prepared solely for the purpose of
correcting Nonconformities in such Product. 
In the event that any Nonconformity is found in a Product, and such
Nonconformity is brought to the attention of RadView (either as a result of
RadView’s internal testing processes or by notice from a RadView customer or by
written notice from Ixia, RadView shall address any such replicable
Nonconformity with an effort commensurate with its severity and shall prepare
and deliver to Ixia, at no charge to Ixia, a Correction within a reasonable
period of time, as evaluated based on the severity of the Nonconformity and the
sufficiency of interim or partial remedies which might be available pending a
final cure of the Nonconformity. In the event RadView is unable to deliver a
Correction within a reasonable period of time, notwithstanding its use of
commercially reasonable efforts to do so, then Ixia shall be entitled to
receive Source Materials with respect to the Product experiencing the
Nonconformity solely for the purposes of developing a Correction for such
Nonconformity. RadView will provide technical support to Ixia in developing a
Correction using the Source Materials. 
In the event RadView willfully breaches its obligations under this
Section 8.2 either (a) by not making a good faith effort to develop a
Correction for the identified Nonconformity, or (b), if RadView determines, in
its sole discretion, that it is unable to develop such a Correction, by not
authorizing the release of the Source Materials so that Ixia can work on the
development of such a Correction, then in either such event, RadView shall
reimburse Ixia for its reasonable costs to develop the Correction, which costs
shall not exceed, in the aggregate, ten (10) man days (calculated at Ixia’s
internal cost)   In addition, in the
event Ixia identifies what it believes to be a defect in the Product, but which
RadView does not believe either rises to the level or is of the character of a
Nonconformity, the parties shall discuss in good faith whether Ixia’s need for
a cure for the identified defect is sufficiently material to justify a release
of the Source Materials solely for the purposes of Ixia’s developing such cure
and in all respects subject to the terms of Section 13.3 below.


 


8.3.          Minor Upgrades.  As
used herein, the term “Minor Upgrade” shall mean an upgrade or enhancement of
any Product which represents a minor increase in the functionality or
performance of any Product and/or a Correction of such Product and which, in
accordance with accepted commercial practice in the software industry, is
designated by RadView with a version number that is changed from the preceding
version number only in the numbers to the right of the decimal point, but shall
not include any Major Upgrade, as defined in Section 9.1 below.  During the term of this Agreement, RadView
shall provide to Ixia, without additional charge, any and all Minor Upgrades
which RadView prepares of any Product. 
All Minor Upgrades shall be deemed to be included within the definition
of the “Product” hereunder.  Except for
any Corrections which may be required, RadView shall not be under any
obligation to prepare any Minor Upgrades of any Product.


 


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9.             Rights If RadView Prepares
Major Upgrade or Replacement Product


 


9.1.          Definitions.  As used herein, the term
“Major Upgrade” shall mean an upgrade or enhancement of any Product which
represents a substantial increase in the functionality, performance and content
of such Product and which, in accordance with accepted commercial practice in
the software industry, is designated by RadView with a version number that is
changed from the preceding version number in the numbers to the left of the
decimal point.  Any Major Upgrade as to
which Ixia acquires the right to market and distribute under this Agreement
shall be deemed to be included within the definition of the “Product”
hereunder.


 


9.2.          Major Upgrades of Any Product; Replacement
Product.  In the event that RadView prepares one or
more Major Upgrades of any Product during the Term, or prepares any product
which is a replacement for a Product, RadView shall provide such Major Upgrade
or such replacement product to Ixia at no additional charge.  Any such Major Upgrade or replacement product
shall be deemed to be included within the definition of the “Product”
hereunder.  Notwithstanding the
foregoing, RadView shall not be under any obligation to prepare any Major
Upgrades of, or replacement products for, any Product.


 


10.          End User Technical Support
and Customer Service; Training


 


10.1.        End User Technical Support and Customer Service. 
During the term of this Agreement, Ixia shall provide end user technical
support and customer service to all end users of the Products, provided that
Ixia shall have the right to refer end users to RadView for technical support
in instances where Ixia is not able to resolve the end users’ requests with a
reasonable expenditure of time.  RadView
will provide reasonable assistance to Ixia with respect to any questions or
problems concerning the Products or the use of the Products and otherwise in
connection with Ixia’s technical support of end users of the Products.


 


10.2.        Training.  At Ixia’s request, RadView shall provide a
two-day training session at Ixia’s premises at no charge.  Upon reasonable request, RadView shall
provide additional training at RadView’s then-current rate for such services
(or if RadView has not established such a rate, at a rate negotiated in good
faith that is not inconsistent with market rates).  Ixia shall pay, or reimburse RadView for, the reasonable coach
class travel expense and related expenses (but not salaries) of RadView’s
personnel in connection with rendering training services at sites other than
RadView’s place of business.


 


11.          Joint Announcement of
Agreement


 


Promptly
after the execution of this Agreement, the parties shall jointly prepare one or
more press releases announcing this Agreement and the relationship established
hereunder.  Without limiting the other
matter which may be included, each party shall have the right to include its
own company information of the kind that is customarily included in such press
releases by public companies.


 


12.          Joint Marketing At Trade
Shows, Etc.


 


12.1.        Event Participation.  RadView agrees to participate with Ixia in
joint marketing activities during the Term such as seminars (including seminars
specific to Ixia products), trade shows, vendor fairs and similar industry
events, by participating in Ixia’s booth or other on-site presence; provided,
however, that the foregoing shall not be construed as a commitment by RadView
to participate in any specific event or activity, but rather each such event or
activity shall be discussed and agreed upon by the parties on a case by case
basis.  Unless otherwise agreed to in
writing in advance, Ixia shall be solely responsible for all non-personal
expenses such as exhibitor registration fees, exhibition booth rental and other
costs of a booth, meeting room rental, and similar items, but only if the items
are predominated by Ixia’s brand or identity and RadView allows Ixia absolute
discretion to determine the size, appearance and other aspects of any booth,
display or other facility, and the amount of space allocated to, and/or
prominence of, RadView in any item paid for by Ixia.  RadView shall be solely responsible for all compensation and
personal expenses of any persons participating on behalf of RadView, including
travel, lodging, registration fees, and so forth, except that Ixia will pay for
any business meals or business entertainment attended by RadView personnel at
Ixia’s request or invitation.  If
RadView requests, and is willing to bear the expense of, more extensive
presence than Ixia expects to make available, the parties agree to


 


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negotiate
in good faith as to whether and how to accommodate RadView’s request, but Ixia
shall not be required to agree to anything that Ixia feels will adversely
affect or diminish its own participation or presence.  Nothing in the foregoing is intended to limit in any way any
independent activities or participation that RadView wishes to undertake at its
own (or any third party’s) expense and separate from its participation with
Ixia.


 


12.2.        Mailings To RadView List.  During the Term, RadView
agrees to do at least one (1) mailing to its mailing list(s) of customers for
the purpose of promoting any events referred to in Section 12.1 above.


 


13.          Source Materials License and
Escrow


 


13.1.        “Source Materials”.  The
term “Source Materials” shall mean all existing and available (i) source
code, source code comments and documentation, data, files, algorithms, notes,
flow charts, diagrams, authoring tools, development environments and other
materials used in, or used in the preparation of, each Product; and
(ii) all source code, source code comments and documentation, data, files,
algorithms, notes, flow charts, diagrams, authoring tools, development
environments and other materials used in, or used in the preparation of, RadView’s
means of generating Access Keys and of using Access Keys with each Product;
provided, however that nothing in this Section 13 shall be construed to
require RadView to develop new or additional materials but rather, the term
“Source Materials” shall refer to all materials in the aforedescribed
categories to the extent they are available or become available during the
Term. In addition, in the event Ixia exercises the Option, and following such
exercise, the term “Source Materials” shall also include, to the extent then
available, all existing and current (i) testing, maintenance and support
materials, including lists of known defects, support databases, engineering
documents, source control databases, test plans and automated test suites; and  (ii)
instructions, notes, references, programs and other materials (excluding any
third party software programs, which shall not be required to be provided but
which shall be listed specifically, including version number, in the Source
Materials) required for the technical staff of Ixia, without any additional
assistance from RadView, to prepare an executable code copy of such Product
from the source code of such Product, via the procedures of assembly,
compilation, linking and/or any other procedure, which materials shall include
all such materials actually used by RadView to prepare executable code copies
of such Product and Access Keys for such Product; provided, however that
nothing in this Section 13 shall be construed to require RadView to
develop new or additional materials but rather, the term “Source Materials”
shall refer to all materials in the aforedescribed categories to the extent
they are available or become available during the Term.


 


13.2.        Delivery of Source Materials Exercise of Option; Source Code License. 
Promptly upon receiving notice from Ixia of Ixia’s intention to exercise
its Option pursuant to the provision of Section 16, and upon RadView’s
receipt of the Option exercise price, Ixia shall receive a Source Code license
to use the Source Materials solely in support and furtherance of its license
rights as contemplated under Section 4 and Section 16. In addition,
RadView shall, at its sole expense, turn over to Ixia copies of all Source
Materials, as well as all versions of the Source Materials created up to that
time, including superseded versions.  It
is the intention of this Section 13.2 that Ixia have all materials
reasonably needed to proceed with the development of all of the Products, and
any versions thereof to which Ixia has a right hereunder, without RadView; it
being understood, however, that RadView is not responsible for creating any
additional materials in order to support Ixia’s rights hereunder but RadView
shall offer Ixia reasonable technical assistance in support of Ixia’s early use
of the Source Materials.


 


13.3.        Source Materials Escrow.  Without affecting RadView’s obligations
under 13.2.1 above, promptly after the execution of this Agreement RadView
shall deposit into an escrow account, and shall keep on deposit for the Term of
this Agreement, a full set of the Source Materials for each Product with Data
Securities International or other escrow agent agreeable to the parties.  The delivery of the Source Materials shall
be at RadView’s sole expense.  RadView’s
deposited Source Materials shall be timely updated by RadView when any material
change is made to any Product or a new version of any Product is released.  The escrow agent shall be directed, in a
written agreement executed by the parties in connection with the establishment
of the escrow account (which agreement shall be consistent with, and shall not
contradict any provision of, this Agreement), to release to Ixia the Source
Materials in the event that RadView is unable or unwilling to develop a
Correction, pursuant to the terms of Section 8.2 or pursuant to its
warranty obligations in Section 21.4; provided, however,


 


8

















 


that
(a) the Source Materials shall only be released if RadView has been provided
written notice of the Nonconformity and such release shall occur on the earlier
of (i) the thirtieth day following such notice if RadView has been unable to
release a Correction within thirty (30) days following its receipt of such
notice or (ii) the date, if any, that Radview provides Ixia with written notice
that RadView has determined it is unable or unwilling to attempt the
development of such Correction, (b) any Source Materials released from escrow
pursuant to this section may only be used by Ixia for purposes of developing
the correction for the Non-conformity identified in the notice provided to
RadView and shall not be provided or disclosed to any third party, (c) a copy
of the Correction and the Source Materials for the same shall be provided to
RadView, and (d) the released Source Materials and the Source Materials for the
Correction shall be returned to the escrow account once the identified
Nonconformity has been developed, released and a reasonable period of time (not
to exceed two (2) months) has been allowed for field testing, and Ixia shall
ensure that no copy of the Source Materials. In hand or electronic form remains
in its possession or control; provided, however, that if a problem with the
Correction occurs during such two months of field testing, Ixia shall retain
the Source Materials in order to fix such a problem and shall retain the Source
Materials for an additional two (2) month period of field testing as set forth
above (such procedure to be repeated as required). The source code escrow
account established under the terms of this Section 13.3 shall terminate
upon expiration or earlier termination of this Agreement. Ixia shall pay the
entire cost of the escrow account, except that if RadView already has an escrow
account established, Ixia shall only pay the additional cost charged by the
escrow holder for including Ixia.  Ixia
shall have the right, upon five (5) business days’ notice to RadView and the
escrow agent, to have an independent third party, at Ixia’s sole expense,
conduct tests of the then-current set of RadView Source Materials held in
escrow (including compiling or assembling them) to determine that such set
constitutes a complete, correct and current version of the source code for each
Product.  RadView shall provide
reasonable cooperation and assistance in the conduct of any such tests.  Such tests shall be subject to reasonable
confidentiality requirements requested by RadView.


 


13.4         Right To Reverse Engineer. In the event that the Source Materials are
not timely released to Ixia pursuant to the provisions of Sections 13.2 and
13.3 above, or in the event the Source Materials are insufficient to allow Ixia
to develop the Correction or make full use of its rights after exercising the
Option, then Ixia may take all necessary steps, including reverse engineering,
to create any Source Materials solely for the purposes permitted under the
Source Materials License.


 


13.2.4.     No Additional Payment.  Since the foregoing procedure is necessary
for Ixia to enjoy its rights under this Agreement, in the event of a default by
RadView, there shall be no additional royalty or other payment for the Source
Materials License


 


14.          Expenses


 


Except
as expressly set forth herein, each party shall bear all expenses incurred by
such party in connection with its performance hereunder.  In no event shall either party incur any
expense whatsoever on behalf of the other party without first having received
written authorization from such other party unless otherwise expressly provided
for herein.


 


15.          Payments


 


15.1.        Purchase Price To Ixia For Products.  The purchase price to Ixia
for Products hereunder shall be an amount equal to [ * ] of RadView’s
then-current published list price for the Products and Product
Maintenance.  RadView’s current
published list prices for the Products and Product Maintenance are set forth in
Exhibit “A”.  Six (6) months following
the date of execution of this Agreement, RadView shall review its sales of the
Products during the preceding quarter and determine the average discount
applied to the list price with respect to such sales.  That discount will then be applied to Radview’s list prices for
the Products, and such discounted list price shall, for months seven (7)
through eighteen (18) of the Term, be used to calculate the purchase price for
Ixia for such products.  At the end of
month eighteen (18) of the Term, RadView shall again review its sales of the


 












* Confidential


 


9

















 


Products
during the preceding quarter and determine the average discount applied to the
list price with respect to such sales. 
That discount will then be applied to the applicable list prices for the
Products, and such discounted list price shall, for the balance of the term
during which Ixia is paying royalties, be used to calculate the purchase price
for Ixia for such products.


 


15.2.        Determination of Time of Sale.  For purposes of this
Agreement, a sale shall be deemed to have occurred at the point in time at
which RadView delivers the Access Key(s) for the Product(s) to Ixia pursuant to
the provisions of Section 7 and RadView shall be entitled to invoice Ixia
for the sale at such point.  Payment is
due within thirty (30) days from invoicing. 
With respect to the fees due from Ixia for each renewal Maintenance
term, RadView shall invoice Ixia thirty (30) days prior to the commencement of
the renewal term; provided, however, that if a customer does not purchase a
renewal term, then Ixia shall not be liable for payment with respect thereto.


 


15.3.        Advance Against Sales.  Ixia shall pay to RadView a nonrefundable,
fully-recoupable advance against sales for each annual period of this Agreement
(excluding any period after Ixia exercises the Option, if Ixia exercises the
Option) (the “Advance Payment”).  The
Advance Payment shall be Two Hundred Thousand Dollars ($200,000) for the
twelve-month period that commences upon the Effective Date, and an additional
Two Hundred Thousand Dollars ($200,000) for the twelve-month period that
commences upon the first anniversary of the Effective date.  The Advance Payment shall be paid as
follows:


 


(i)            Two
Hundred Thousand Dollars ($200,000) within five (5) days after the later of (a)
the execution of this Agreement, or (b) the Effective Date; and


 


(ii)           Two
Hundred Thousand Dollars ($200,000) on or before the first anniversary of the
Effective Date.


 


15.4.        Recoupment By Ixia of Advance Payment.


 


15.4.1.     First Advance Payment.  Ixia will be entitled to recoup all or any
portion of the first payment of the Advance Payment out of amounts that would
otherwise be payable to RadView for sales of the Products made between the
commencement of this Agreement and the first anniversary of the Effective Date
(including where a sale was made within such period but the payment for such
sale would be made after such period), but not to any sales made after such
period.


 


15.4.2.     Second Advance Payment.  Ixia will be entitled to recoup all or any
portion of the second payment of the Advance Payment out of amounts that would
otherwise be payable to RadView for sales of the Products made between the
first anniversary of the Effective Date and the second anniversary of the
Effective Date (including where a sale was made within such period but the
payment for such sale would be made after such period), but not to any sales made
after such period.


 


15.4.3.     Recoupment If Option Is Exercised Before Second Anniversary of
Effective Date.  In the event that Ixia exercises the Option
before the second anniversary of the Effective Date, such exercise shall not
affect this Section 15.4, and sales shall not be differentiated by whether
they were before or after the exercise of the Option.


 


15.4.4.     No Waiver By Payment of Sales Proceeds Before Recoupment.  The
disbursement of any sales proceeds to RadView on any one or more occasions
prior to full recoupment (whether or not at RadView’s request) shall not in any
way waive or otherwise affect Ixia’s right to apply subsequently accrued sales
proceeds to recoupment.


 


15.5.        Royalty Payments To RadView Upon Exercise of Option.  In
the event that Ixia exercises the Option, Ixia shall pay to RadView a royalty
as set forth in Section 16.3.2.


 


10

















 


15.6.        Amounts Paid In U.S. and U.S. Dollars.  All amounts to be paid under
this Agreement shall be determined in, and paid in, U.S. Dollars and shall be
deemed to be payable in the United States. 
In the event that RadView desires to have any payment made by Ixia to
any party outside the United States, RadView shall be solely responsible for
any withholding or transfer tax or other tax, tariff or levy imposed by the
United States or any other taxing authority on such payment, and Ixia shall be
entitled to withhold any such amounts and pay them on RadView’s behalf.


 


15.7.        Ixia To Determine Its Own Resale Prices. 
Ixia is free to determine its own resale prices for each Product
unilaterally.  Each party understands
that neither RadView nor any employee or representative of RadView may give any
special treatment (favorable or unfavorable) to Ixia as a result of its
selection of prices.  No employee or
representative of RadView nor anyone else associated or affiliated with RadView
has any authority to tell Ixia what Ixia’s prices for any Product must be or to
inhibit in any way Ixia’s pricing discretion with respect to any Product.


 


15.8.        Evaluation Copies.  Ixia may, in its sole discretion, distribute
copies, limited to the current RadView evaluation format, of each Product at no
charge for the purpose of demonstrating the Product or for other promotional
purposes. Broad based or mass distribution of evaluation copies is prohibited.
Ixia may with the prior approval of RadView customize an evaluation copy for a
customer specific proposal on a case-by-case basis. The terms of the evaluation
license shall be consistent with the then current terms of RadView’s standard
third party evaluation licenses, including terms limiting the number of virtual
user seats and the length of the evaluation period.


 


15.9.        Overpayment.  In the event that RadView receives an
overpayment, including royalties paid on Product copies which are subsequently
returned, RadView shall repay such overpayment to Ixia promptly after Ixia
gives written notice to RadView of such overpayment, provided that RadView
agrees that Ixia, without limiting any of its other remedies, may deduct the
amount of such overpayment from any further royalties accruing to RadView’s
account or from other amounts payable to RadView hereunder.


 


15.10.      No Additional Amounts Due.  Except as herein expressly
provided, no other royalties or monies shall be payable or paid to RadView.


 


16.          Ixia Option To Acquire
Perpetual and Expanded Rights


 


16.1.        Option.  Ixia shall have the unilateral option to
acquire from RadView the expanded rights in the Products which are set forth in
Section 16.6 (the “Expanded Rights”) on the terms and conditions set forth
in this Section 16, which is the “Option”.


 


16.2.        Time and Manner of Exercise.  The Option may be exercised
at any time before the second (2nd) anniversary of the Effective Date, by
giving unequivocal and unambiguous notice to RadView and tendering payment of
the Option Exercise Fee (as defined in Section 16.3.1 below).  The Option shall be conclusively and
irrevocably deemed exercised upon such notice and tender, and no subsequent
event (other than Ixia’s failure to deliver payment)) shall be grounds for
RadView to rescind, revoke, cancel or otherwise terminate or avoid the exercise
of the Option and/or the grant to Ixia of the Expanded Rights.


 


16.3.        Option Exercise Price.


 


16.3.1.     Option Exercise Fee.  In the event that Ixia exercises the Option,
Ixia shall pay to RadView a one-time payment in the amount of One Million
Dollars ($1,000,000) (the “Option Exercise Fee”).  The Option Exercise Fee shall be due in full at the time of
exercise of the Option.


 


16.3.2.     Royalty Payments To RadView Upon Exercise of Option.  In
the event that Ixia exercises the Option, then in addition to the Option
Exercise Fee, Ixia shall pay to RadView a royalty on all sales of the Products
and Maintenance made by Ixia during the twelve-month period commencing upon the
date on


 


11

















 


which
the Option is exercised and ending on the first anniversary of such date.  Such royalty shall be an amount equal to the
lesser of [ * ] of the List Prices set forth in Exhibit A or
RadView’s then-current published list price for the Products and Maintenance at
date of Option exercise.  Ixia shall
account to RadView for royalties due hereunder in calendar quarterly periods
(which may include partial quarters if the above-referenced twelve-month period
for which royalties will be due does not coincide with calendar quarters.  Within forty-five (45) days after the last
day of each quarterly period, Ixia will furnish to RadView a royalty report
specifying the royalties earned by the Products during such quarterly period,
and simultaneously with the transmission of each such royalty report Ixia shall
make payment of all sums shown to be due thereby.


 


16.3.3.     No Further Amounts Due With Respect To Option or Expanded Rights.  The
amounts set forth in this Section 16.3 constitute payment in full for the
exercise of the Option and for the Expanded Rights.  Accordingly, no other payments, royalties or monies shall be
payable or paid to RadView with respect to this Section 16 even though
Ixia’s sales of the Products may continue into perpetuity.


 


16.4.        Delivery of Source Materials Upon Exercise of Option. 
Promptly after the exercise of the Option, RadView shall provide to Ixia
copies of all Source Materials for all versions of all Products distributed by
Ixia at any time under this Agreement, including superseded versions.  Subject to the terms of Section 13,it
is the intention of this Section 16.4 that Ixia have all materials needed
for Ixia to exercise the Expanded Rights, even without assistance from RadView;
it being understood, however, that RadView is not responsible for creating any
additional materials in order to support Ixia’s rights hereunder but RadView
shall offer Ixia reasonable technical assistance in support of Ixia’s early use
(following the exercise of the Option) of the Source Materials.


 


16.5.        Engineering Assistance.  Upon exercise of the Option, Ixia shall have
the right to have engineering assistance from RadView.  Unless otherwise agreed, such assistance
shall consist of two (2) software engineers of RadView who will be temporarily
stationed at Ixia’s premises for up to eight (8) weeks each, for the purpose of
preparing Ixia’s technical personnel to work with the Source Materials.  The RadView engineers shall be mid-level to
senior level programmers who are highly familiar with the Products and the
Source Materials of the Products.  Ixia
shall pay, or reimburse RadView for, the reasonable coach class travel expense
and related expenses (but not salaries) of the RadView engineers, but otherwise
the engineering assistance referred to in this Section 16.5 shall be
provided at no charge to Ixia.


 


16.6.        Rights of Ixia Upon Exercise.  Notwithstanding
Section 16.6.4 below, upon exercise of the Option and payment of the
Option price, the provisions of this Section 16.6 shall automatically
become effective and RadView shall automatically be deemed to have granted to
Ixia all the rights set forth following, which are the Expanded Rights.


 


16.6.1.     All Existing Rights Continue.  Upon exercise of the Option,
all rights granted by RadView to Ixia pursuant to Sections 4 and 13 hereunder
shall become perpetual and irrevocable; provided, however, that RadView shall
have the right to terminate the Expanded Rights granted hereunder, for cause as
set forth in Section 18 below and such right shall continue following any
expiration of the Term with respect to those terms which survive any such
expiration pursuant to section 18.9 below); and provided further, however,
that with the exception of those obligations of RadView under this
Section 16 or which would survive termination of this Agreement (as
provided under Sections 18.5 and 18.9 below), RadView shall have no further
liability or obligation to Ixia hereunder following the expiration of the Term.


 


16.6.2.     Section 4.9 Deemed Stricken.  Upon exercise of the Option,
Section 4.9 shall be conclusively deemed stricken from this Agreement and
of no further force and effect.


 


16.6.3.     New Rights Granted.  In addition to the rights referred to in
Section 16.6.1 above, upon exercise of the Option and payment of the
Option price to RadView, Ixia shall have a nonexclusive (except as set forth in
Section 4.5 above) right and license (but not the obligation):


 












* Confidential


 


12

















 


(i)            to
possess and use all Source Materials, including any Source Materials concerning
the generation and operation of Access Keys, for all versions of all Products
distributed by Ixia hereunder consistent with the provisions of
Section 13.2 hereinabove;


 


(ii)           to
modify, prepare derivative works of, or prepare new works based on the Products
and/or the Source Materials; provided, however, that any derivative product
created by Ixia shall not diminish or otherwise affect RadView’s pre-existing
rights in its Products; and provided further, however, that in the event
RadView independently develops derivative software similar to that developed by
Ixia, RadView’s development shall not be subject to any intellectual property
infringement claim by Ixia; and


 


(iii)          to
generate and issue Access Keys without payment to RadView (except as set forth
in Section 16.3).


 


16.6.4.     Right To Receive Source Materials From Escrow. 
Notwithstanding anything to the contrary contained in Section 16.4
above, upon exercise of the Option and payment of the Option price, Ixia shall
have the right to receive all Source Materials then-currently on deposit with
the escrow agent.  Upon exercise of the
Option, RadView shall give notice to the escrow agent that Ixia has such right,
and that RadView irrevocably consents to release by the escrow agent of all
such Source Materials to Ixia.


 


16.6.5      Continuing Release of Source Materials.  In
addition, following Ixia’s exercise of the Option and payment of the Option
price and for so long as Ixia is paying royalties to RadView hereunder,
RadView, shall periodically and as available, provide Ixia with the Source
Materials relating to new releases, and shall also, at the end of such royalty
payment period, deliver to RadView the Source Materials for the most current
version of the Products then being shipped by RadView.


 


17.          No Obligation To Distribute
or To Continue Distributing


 


17.1.        No Obligation to Continue Distributing. 
RadView acknowledges that there is no assurance that any market
opportunity for the Products, or any of them, will exist in the future at a
commercially reasonable level, in Ixia’s sole determination.  Accordingly, Ixia shall have no obligation
to distribute or to continue distributing the Products, or any of them, and the
determination whether or not to distribute or to continue distributing any or
all of the Products, for any reason whatsoever, shall be made by Ixia in its
sole discretion. Upon any written notice by Ixia to RadView of its
determination to discontinue distributing the Products, the rights granted
under Limited Exclusivity, as defined in section 4.5 of this Agreement
shall continue for (a) the shorter of one (1) year or the balance of the Term
if such notice is provided prior to Ixia’s exercise of the Option; or (b) for a
period of one (1) year if the Option has been exercised prior to the date of
such notice.


 


17.2.        No Representation as to Success.  RadView acknowledges that
Ixia has made no representation as to the possible or expected success of or
perceived need for the Products, or any individual Product.  RadView understands and acknowledges that no
officer of Ixia or any other person is authorized to make any such
representations on Ixia’s behalf.  RadView
further acknowledges that in entering into this Agreement it is relying solely
upon its own business judgment, and it is not relying upon any representation
by Ixia (including any Ixia employee or independent contractor) except for
representations, if any, expressly set forth herein.


 


18.          Termination


 


18.1.        No Termination Except As Explicitly Set Forth. 
Unless, and except as, otherwise explicitly set forth elsewhere in this
Agreement, this Agreement and/or the Expanded Rights granted under
Section 16, as applicable, may not be terminated by either party except in
accordance with this Section 18.


 


13

















 


18.2.        Expiration.  This Agreement shall terminate
automatically, with no further act or action of either party required for such
termination to be effective, on the second (2nd) anniversary of the Effective
Date unless either (i) Ixia has exercised the Option, or (ii) the parties have
agreed to renew this Agreement.


 


18.3.        Termination For Cause.  Either party may terminate this Agreement,
and RadView may terminated the Expanded Rights of Ixia, at any time effective
upon written notice of termination to the other party in the event that such
other party materially fails to perform any of its material obligations
hereunder and such failure continues unremedied for a period of thirty (30)
days after written notice of such failure from the party alleging such failure.


 


18.4.        Ixia Termination Without Cause.  Ixia (but not RadView) may
terminate this Agreement without cause upon thirty (30) days’ notice to
RadView, but such termination shall not relieve Ixia of its obligations under
Sections 15 or 16 (if applicable) above. 
RadView agrees that if such notice of termination is given, RadView
shall do nothing to derogate Ixia’s rights hereunder until such time as those
rights actually end in accordance with the terms hereof.


 


18.5.        Effects of Termination.  Except as expressly set forth herein, in the
event of any termination or expiration of this Agreement or the termination of
the Expanded Rights, Ixia’s right to distribute the Products hereunder shall
immediately terminate, except that, provided that Ixia complies with all other
terms and conditions of this Agreement Ixia may fulfill any executory license
and support contracts entered into by Ixia with third parties concerning the
Products, or any of them, prior to the effective date of such termination or
expiration, and Ixia may renew, for a period or periods which shall in no event
in the aggregate (for the particular party) extend beyond one (1) year from the
date of such termination or expiration, Product customer support agreements
with customers, in which case RadView shall continue to comply with all other
terms and conditions of this Agreement as to such fulfillment or renewal by
Ixia; provided, however that in no event shall Ixia enter into a license sales
following the expiration and/or termination of this Agreement unless Ixia has
exercised the Option and is operating under the terms of its Expanded Rights.


 


18.6.        No Damages For Proper Termination.  Neither party to this
Agreement shall be liable to the other by reason of proper termination of this
Agreement for compensation, reimbursement or damages on account of any loss of
prospective profits on anticipated sales or on account of expenditures,
investments, leases or other commitments relating to the business or goodwill
of either party, notwithstanding any law to the contrary.  No termination of this Agreement or of the
Expanded Rights shall release Ixia from its obligation to pay RadView any
amounts which accrued prior to such termination or which shall accrue to
RadView after the Termination Date, subject to Sections 15 and 16 (as
applicable) above.


 


18.7.        No Effect On End Users.  Upon an end user acquiring a Product, the
end user shall be entitled to use that Product indefinitely consistent with the
end user’s license.  The rights of end
users are independent of this Agreement and will survive any termination of
this Agreement for any reason whatsoever.


 


18.8.        Right To Use Product For Support.  No termination of this
Agreement for any reason whatsoever shall limit in any way Ixia’s right to use
the Products for the purpose of providing technical support to end users of the
Products, and Ixia may make and maintain copies of the Products (but not
disassemble, decompile, reverse engineer or create derivative works of the
Product, unless authorized under Section 16) to use as replacements for
defective copies of the Products, but Ixia may not otherwise manufacture or
distribute copies of the Products except as expressly provided herein.


 


18.9.        Survival.  The rights and obligations of the parties
set forth in Sections 15 (as applicable), 18.3-18.9 and 19-26 shall survive any
termination or expiration of this Agreement or the Expanded Rights for any
reason whatsoever; provided, however, that if the Term of the Agreement
expires, but the Expanded Rights continue, then, additionally, the terms of
Sections 13.2 and 16 shall survive such expiration.


 


14

















 


19.          Confidentiality


 


19.1.        Confidential Information.  For purposes of this
Agreement, “Confidential Information” shall mean any information or material
which is proprietary to the disclosing party or designated as Confidential
Information by the disclosing party and not generally known other than by the
disclosing party, and shall include this Agreement.  Confidential Information also includes any information which the
disclosing party obtains from any third party which the disclosing party treats
as proprietary or designates as Confidential Information, whether or not owned
by the disclosing party.  “Confidential
Information” does not include the following: (i) information which is
known by the receiving party at the time of receipt from the disclosing party
which is not subject to any other nondisclosure agreement between the parties;
(ii) information which is now, or which hereafter becomes, generally known
to the industry through no fault of the receiving party, or which is later
published or generally disclosed to the public by the disclosing party; or
(iii) information which is otherwise lawfully developed by the receiving
party without access to the disclosing party’s Confidential Information, or
lawfully acquired from a third party without any obligation of confidentiality.


 


19.2.        No Disclosure.  During the term of this Agreement and
thereafter, the receiving party agrees to hold in confidence and not to
disclose or reveal to any person or entity any Confidential Information
disclosed hereunder without the clear and express prior written consent of a
duly authorized representative of the disclosing party.  The receiving party further agrees not to
use or disclose any of the Confidential Information for any purpose at any time,
other than for the limited purpose(s) for which the disclosure was made as
contemplated by this Agreement.  In the
event that either party is directed to disclose any portion of any Confidential
Information of the other party or any other materials proprietary to the other
party in conjunction with a judicial proceeding or arbitration, the party so
directed shall immediately notify the other party both orally and in
writing.  Each party agrees to provide
the other with reasonable cooperation and assistance in obtaining a suitable
protective order and in taking any other steps to preserve confidentiality.


 


19.3.        No Publicity.  Except as provided under Section 11,
information relating to the substance of this Agreement shall be deemed
Confidential Information, and neither party shall disclose such information to
third parties without the prior written consent of the other; provided,
however, that each party shall be entitled to disclose, in discussions with
analysts or in like forums, the nature and scope of the relationship, the
respective roles of the parties in the same and margin (but not pricing)
information.  At time of execution Ixia
and RadView agree to a joint press release announcing this partnership pursuant
to Section 11.


 


19.4.        No Confidential Information of Other Parties. 
Each party represents and warrants that it will not use in the course of
its performance hereunder and will not disclose to the other party, any
confidential information of any third party (including competitors of Ixia or
RadView) unless the party is expressly authorized in writing by such third
party to do so.


 


20.          Ownership


 


20.1.        Products.  As between RadView and Ixia, all right,
title and interest in and to, and ownership of, each Product, including all
intellectual property and trademarks related thereto, shall remain at all times
exclusively in RadView, and Ixia shall not acquire any right, title, or
interest therein, except as expressly set forth herein.


 


20.2.        Modifications to Products; Other Matter Prepared By Ixia.  As
between RadView and Ixia, all right, title and interest in and to, and
ownership of, any modifications to any Products made by Ixia in accordance with
this Agreement, and any other matter prepared by Ixia in connection with the
Products and/or exercise of its rights under this Agreement, shall remain at
all times exclusively in Ixia, and RadView shall not acquire any right, title,
or interest therein; provided, however, that any derivative product created by
Ixia shall not diminish or otherwise affect RadView’s pre-existing rights in
its Products; and provided further, however, that in the event RadView
independently develops derivative software similar to that developed by Ixia,
RadView’s development shall not be subject to any intellectual property infringement
claim by Ixia.


 


15

















 


20.3.        Product Packaging and Marketing Materials. 
Except for the Products themselves and any other materials delivered by
RadView, Ixia shall own all components of the product packages and all
marketing materials used in the marketing of the Products.  Without limiting the generality of the
foregoing, Ixia shall own all packaging designs, logos, slogans, advertising
materials and promotional materials, and RadView shall have no rights thereto
under any circumstances whatsoever either during or after the term of this
Agreement.


 


20.4.        Product Name.  Ixia shall determine, in its sole
discretion, the name under which each Product will be marketed (the “Product
Name”).  RadView hereby grants to Ixia
an irrevocable nonexclusive license to use the names “WebLoad” and “WebLoad
Resource Manager” in conjunction with the marketing and distribution of the
Products.  Such license shall continue
for as long as Ixia is marketing and distributing any Product.  RadView understands and agrees that Ixia may
market one or more of the Products under a Product Name other than “WebLoad” or
“WebLoad Resource Manager” provided that the foregoing shall not be construed
as permitting Ixia to adopt a product name that would infringe any trademark of
RadView’s which is in use and valid as of the time that Ixia adopts such
name.  In the event that Ixia markets
any Product under any Product Name other than “WebLoad” or “WebLoad Resource
Manager”, Ixia shall own all right, title and interest in and to the Product
Name and goodwill related thereto, including, but not limited to, copyright and
trademark rights.  RadView shall not
have, under any circumstances whatsoever, any right to use such Product Name,
notwithstanding any reconveyance, rescission or any other circumstance
whatsoever, if any, under which Ixia ceases to market the Products.


 


20.5.        Ownership of Series Identifiers Created By Ixia.  As
used herein, the term “Product Series” shall mean two or more products
published in such fashion as to create a common identity between the products
through use of a Series Identifier.  A
“Series Identifier” includes, but is not limited to, a common series name or
logo, a common marketing theme, common packaging elements, a “house mark” or
any other characteristic suggestive of a common identity.  In the event that a Product is published as
part of a Product Series created by Ixia (including where a Product is the
first product published in such Product Series), or where subsequent to the
publication of any Product, Ixia establishes a Product Series which includes
one or more Products, Ixia shall own all right, title and interest in and to
any Series Identifiers created by Ixia. 
RadView shall not be entitled to any royalty or other payments with
respect to such Product Series or Series Identifiers.


 


20.6.        Trademarks.  Nothing in this Agreement shall be construed
as giving either party any right to use any trademark, service mark, trade
name, logo, designation or other identifier of the other party at any time
during or after the term of this Agreement except as may be expressly provided
for herein; and provided, however, that during the Term each party shall be
entitled to use the name and logo of the other party on its website,
identifying the other party as a strategic partner, and in other marketing
materials; provided further, however, that if a party reasonably disapproves of
the other party’s use of the first party’s marks, then the second party shall
discontinue such use of the first party’s marks.


 


21.          RadView Representations and
Warranties


 


21.1.        Not Applicable To Modifications By Ixia. 
Nothing in this Section 21 shall apply to any matter which is
caused by any modification of any Product by Ixia or by any third party contractor
of Ixia and which would not exist but for such modification(s).


 


21.2.        Proprietary and Other Rights Warranty.  RadView hereby warrants,
represents, and covenants as follows: RadView is capable of performing its
obligations hereunder and has the full right, power, and authority to enter
into and perform this Agreement and to grant to and vest in Ixia all rights
herein set forth, free and clear of any and all claims, rights, and obligations
whatsoever; the rights hereunder, and any and all of the results and proceeds
of the services of RadView hereunder, delivered and to be delivered by RadView
hereunder, are and shall be new and original or based upon materials as to
which RadView has acquired all necessary rights or which is in the public
domain or which was supplied by Ixia; RadView will be the creator of the
Products, and each of them, and no part of any Product shall be an imitation or
copy of, or shall infringe upon, any other


 


16

















 


material,
or shall violate or infringe upon any common law or statutory rights of any
person or entity, including rights relating to defamation, contractual rights,
copyrights, trade secret rights, and rights of privacy or publicity; there are
no rights with respect to any authoring tool, rendering tool or other third
party software not already obtained by RadView which are necessary for RadView
to perform any of its obligations, or for Ixia to exercise any of its rights,
under this Agreement and nothing contemplated by this Agreement will violate
any rights of, or any agreement with, any authoring tool or rendering tool
vendor; there is no litigation or arbitration pending or threatened by or
against RadView or with respect to any Product which might have an effect on the
rights or obligations of any party to this Agreement; and RadView has not sold,
assigned, leased, or in any other way disposed of or encumbered the rights
herein granted to Ixia, nor shall RadView sell, assign, lease, license, or in
any other way dispose of or encumber such rights.


 


21.3.        Licenses and Third Party Rights.  Without limiting the
generality of Section 21.2 above, RadView warrants and represents that to
the extent that any third parties have any rights with respect to any portion
of any Product, RadView has obtained any and all such third party rights or
permissions which are required for the uses contemplated by this Agreement and
for Ixia’s exercise of the rights granted to it under this Agreement.  RadView further warrants that RadView has obtained
all applicable licenses and has paid and/or will timely pay all applicable
payments for the rights to incorporate any third party works into any Product,
and for the rights to reproduce, distribute, perform, display and/or create
derivative works based upon such works, as applicable.  This includes the payment of re-use fees,
royalties, or other sums required to be paid for any consents and permissions,
under applicable collective bargaining or other agreements, or otherwise in
connection with the use made of pre-existing material in any Product.  RadView shall be solely responsible for
paying such amounts, without any right of reimbursement from Ixia.  If Ixia is presented with a third party
claim for payments which, if true, would be a breach of the foregoing
warranties or representations, then Ixia shall present such claim to
RadView.  RadView will then work in good
faith to provide assistance to Ixia to evaluate the validity of the claim.  If RadView and Ixia determine the claim is
valid, then RadView shall not unreasonably withhold or delay payment of the
claimed amount.  If there is a dispute
as to the validity of the claim, then, without limiting any of its other
remedies, Ixia shall have a right to pay any amounts due to, or otherwise
settle or compromise the claim by, such third party, in which case, and
provided such third party claim is judged by a court (or other tribunal which
may be agreed upon by the parties) to have been valid, or in the event RadView
elects to acknowledge the claim without a determination of its validity, or in
the event RadView preapproves in writing the payment made by Ixia to such third
party, then RadView shall reimburse Ixia for such amounts paid to such third
party, and Ixia shall have the right to offset any unpaid amounts against
royalties or other amounts due to RadView.


 


21.4.        Product Operation.  RadView warrants that the Products, and each
of them, will, upon their initial delivery to Ixia l be reasonably free from
any Nonconformities, and will operate and run in a reasonable and efficient
manner as described in, and in conformance with the specifications and the end
user documentation for the particular Product for a period of ninety (90) days
following such delivery of Product. 
Should any Nonconformity be detected during such period and reported to
RadView by Ixia during such period, then provided that the Non-Conformity is
replicable and Ixia provides to RadView the information and assistance
reasonably required by RadView to recreate the Non-Conformity and the
circumstances of its occurrence, RadView shall address any such replicable
Nonconformity with an effort commensurate with its severity and shall prepare
and deliver to Ixia, at no charge to Ixia, a Correction within a reasonable
period of time, as evaluated based on the severity of the Nonconformity and the
sufficiency of interim or partial remedies which might be available pending a
final cure of the Nonconformity. In the event RadView is unable to deliver a
Correction within a reasonable period of time, notwithstanding its use of
commercially reasonable efforts to do so, then Ixia shall be entitled to
receive Source Materials pursuant to the provisions of Section 13.3. with
respect to the Product experiencing the Nonconformity solely for the purposes
of developing a Correction for such Nonconformity. RadView will provide
technical support to Ixia in developing a Correction using the Source
Materials.  Notwithstanding the
foregoing, RadView shall not be responsible for Nonconformities which result
from any modification of a Product not made or authorized by RadView.  SUBJECT TO THE FOREGOING, RADVIEW DOES NOT
WARRANT THAT THE PRODUCTS WILL PERFORM ERROR FREE OE WITHOUT INTERRUPTIONS, NOR
DOES RADVIEW WARRANT THAT THE SOFTWARE WILL MEET IXIA’S REQUIRMENTS OR THE
REQUIREMENTS OF IXIA’S CUTOMERS. Except as expressly provided for in this
Section 21.4,Ixia agrees to


 


17

















 


bear
the entire risk as to the adequacy and performance of the products. EXCEPT FOR
THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 21.4, RADVIEW DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE PRODUCTS AND USER
DOCUMENTATION INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILTY AND FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARSISING FROM THE
COURSE OF DEALING BETWEEN THE PARTIES OE USAGE OF TRRADE. This
Section 21.4 sets forth Ixia’s exclusive remedy and RadView’s sole
responsibility in the event of a breach of any of the foregoing warranties
during the Warranty Period. This warranty is made solely to Ixia, and Ixia
acknowledges and agrees that RadView extends no warranties of any sort or
nature to or by any third party, or with respect to any third party product or
service not licensed and provided by RadView hereunder. Any Non –conformities
which may be identified in subsequent versions or releases of the Products
shall be addressed pursuant to the provisions of Section 8.2 above.


 


22.          Ixia Representations and
Warranties


 


Ixia
hereby warrants, represents, and covenants as follows: Ixia is capable of
performing its obligations hereunder and has the full right, power, and
authority to enter into and perform this Agreement and to grant and vest in RadView all rights to payments made
hereunder herein set forth, free and clear of any and all claims, rights and
obligations whatsoever; the rights hereunder, and any and all of the results
and proceeds of the services of Ixia hereunder, which may be delivered
hereunder, are and shall be new and original or based upon materials as to
which Ixia has acquired all necessary rights or which in the public domain or
which was supplied by RadView.  The performance of Ixia’s obligations
hereunder will not breach any other contract by which Ixia is bound. There is
no litigation or arbitration pending or threatened by or against Ixia which
might have an effect on the rights or obligations of any party to this
Agreement.


 


23.          Indemnity


 


23.1.        Indemnification of Ixia By RadView.  RadView shall indemnify and
hold Ixia harmless from and with respect to any loss or damage (including
reasonable attorneys’ fees and costs), arising out of or relating to any claim,
demand, suit or proceeding brought by a third party against Ixia insofar as
such claim, demand, suit or proceeding shall be ruled against Ixia and based
upon a claim by such third party alleging facts or circumstances that, if
true, would constitute a breach of any representation or warranty of RadView
set forth in this Agreement.  Ixia shall
give RadView prompt written notice of any such claim and shall provide RadView
such reasonable cooperation and assistance as RadView may request from time to
time in the defense thereof.  Ixia shall
have the right, but not the obligation, to participate in such litigation or
proceeding at its sole expense through counsel of its own choosing.  RadView shall pay any damages and costs
ruled against Ixia (or paid or payable by Ixia pursuant to a settlement
agreement, provided that RadView will not enter into any settlement without the
prior written consent of Ixia) in connection with such a claim, demand, suit or
proceeding.  Ixia shall permit RadView
to control such litigation. 
Notwithstanding the foregoing, in the event that RadView elects to
assume the defense of such claim, demand, suit or proceeding, if Ixia believes
reasonably and in good faith that RadView may not have sufficient financial
and/or other resources to conduct an appropriate defense of such claim, demand,
suit or proceeding, Ixia shall have a right to defend such claim, demand, suit or
proceeding without forfeiting, reducing or otherwise affecting its right to
indemnification hereunder (including its right to have the attorneys fees and
costs and expenses of such defense paid by RadView).  Following the commencement of any litigation covered by this
Section 23 in which Ixia is named as a defendant, Ixia shall not be
entitled to withhold royalty payments to RadView pending the outcome of such
litigation.


 


23.2.        Indemnification of RadView By Ixia.  Ixia shall indemnify and hold
RadView harmless from and with respect to any loss or damage (including
reasonable attorneys’ fees and costs), arising out of or relating to any claim,
demand, suit or proceeding brought by a third party against RadView insofar as
such claim, demand, suit or proceeding shall be based upon a claim by such
third party: (i) alleging facts or circumstances that, if true, would
constitute a breach of any representation or warranty of Ixia set forth in this
Agreement; or (ii) based upon any claim that a Product, or any version
thereof, is defective as the result of any modification to any Product, or any
version thereof, made or authorized by Ixia but not made or authorized by
RadView.  RadView shall give Ixia


 


18

















 


prompt
written notice of any such claim and shall provide Ixia such reasonable
cooperation and assistance as Ixia may request from time to time in the defense
thereof.  RadView shall have the right,
but not the obligation, to participate in such litigation or proceeding at its
sole expense through counsel of its own choosing.  Ixia shall pay any damages and costs assessed against RadView (or
paid or payable by RadView pursuant to a settlement agreement, provided that
Ixia will not enter into any settlement without the prior written consent of
RadView) in connection with such a claim, demand, suit or proceeding.  RadView shall permit Ixia to control such
litigation. Notwithstanding the foregoing, in the event that Ixia elects to assume
the defense of such claim, demand, suit or proceeding, if RadView believes
reasonably and in good faith that Ixia may not have sufficient financial and/or
resources to conduct an appropriate defense of such claim, demand, suit, or
proceeding. RadView shall have a right to defend such claim, demand, suit or
proceeding without forfeiting, reducing or otherwise affecting its right to
indemnification hereunder (including its right to have the attorneys fees and
costs and expenses of such defense paid by Ixia).


 


24.          Limitation of Liability and
Exclusion of Consequential Damages


 


NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN, EXCEPT AS EXPRESSLY PROVIDED, AND
WITH THE EXCEPTION OF IXIA’S MISUSE OF THE RADVIEW SOURCE MATERIALS, NEITHER
PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR
INCIDENTAL INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, OR (B) ANY DAMAGES WHATSOVER
RESULTING FORM LOSS OF USE, DATA, REVENUES.BUSINESS OR PROFITS, OR COSTS OF
PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, IN EITHER EVENT ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT,EVEN IF SUCH PARTY HAS BEEN APPRISED OF
THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.


 


25.          Notices


 


Except
as specifically provided herein, all notices required hereunder shall be in
writing and shall be given by: (i) personal delivery, in which case notice
shall be deemed effective upon personal delivery; or (ii) national
overnight courier service, in which case notice shall be deemed effective one
(1) business day following deposit with the national overnight courier service;
or (iii) U.S. mail, certified or registered, postage prepaid, return
receipt requested, in which case notice shall be deemed effective three (3)
days following deposit in the U.S. mail. 
The addresses for giving notice shall be the addresses first set forth
above, or any other address as shall be specified by a party in a written
notice to the other party.


 


26.          Miscellaneous


 


26.1.        Entire Agreement.  This Agreement constitutes the entire
understanding and agreement between the parties hereto and supersedes any and
all prior or contemporaneous representations, understandings and agreements
between Ixia and RadView with respect to the subject matter hereof, all of
which are merged herein. 
Notwithstanding the foregoing, the parties understand and agree that any
confidentiality agreements between the parties are separate from this
Agreement, and, except as may be expressly stated herein, nothing contained in
this Agreement shall be construed as affecting the rights or obligations of
either party set forth in any such agreement. 
It is expressly understood and agreed that no employee, agent or other
representative of either party has any authority to bind such party with regard
to any statement, representation, warranty, or other expression unless the same
is specifically set forth or incorporated by reference herein.  It is expressly understood and agreed that,
there being no expectation of the contrary between the parties hereto, no usage
of trade or custom and practice within the industry, and no regular practice or
method of dealing between the parties hereto, shall be used to modify,
supplement or alter in any manner the terms of this Agreement or any part
hereof.  This Agreement shall not be
modified, amended or in any way altered except by an instrument in writing
signed by an officer of RadView and an officer of Ixia.


 


26.2.        Independent Parties.  Nothing contained herein shall be deemed to
create or construed as creating a joint venture or partnership between Ixia and
RadView.  Neither party is, by virtue of
this Agreement


 


19

















 


or
otherwise, authorized as an agent or legal representative of the other
party.  Neither party is granted any
right or authority to assume or to create any obligation or responsibility,
express or implied, on behalf of or in the name of the other party or to bind
such other party in any manner. 
Further, it is not the intention of this Agreement or of the parties
hereto to confer a third party beneficiary right of action upon any third party
or entity whatsoever, and nothing hereinbefore or hereinafter set forth shall
be construed so as to confer upon any third party or entity other than the
parties hereto a right of action under this Agreement or in any manner
whatsoever.


 


26.3.        Waiver.  No waiver of any provision of this Agreement
or any rights or obligations of either party hereunder shall be effective,
except pursuant to a written instrument signed by the party or parties waiving
compliance, and any such waiver shall be effective only in the specific
instance and for the specific purpose stated in such writing.


 


26.4.        Amendments.  All amendments or modifications of this
Agreement shall be binding upon the parties despite any lack of consideration
so long as the same shall be in writing and executed by the parties hereto in
accordance with the other terms of this Agreement regarding modifications.


 


26.5.        Severability of Provisions.  In the event that any
provision hereof is found invalid or unenforceable pursuant to judicial decree
or decision, the remainder of this Agreement shall remain valid and enforceable
according to its terms.


 


26.6.        Assignment.  Neither party shall have the right to, and
each party covenants that it will not, assign or transfer this Agreement or any
of its rights, duties or obligations hereunder, and this Agreement may not be
involuntarily assigned or assigned by operation of law, without the prior
written consent of the other party, which consent may be granted or withheld by
such other party in its sole discretion, except that either party shall have
the right to assign or transfer this Agreement or any interest herein
(including rights and duties of performance) to any entity: (i) which owns more
than fifty percent (50%) of such party’s issued and outstanding capital stock
or voting interest; (ii) in which such party owns more than fifty percent (50%)
of the issued and outstanding capital stock or voting interest; (iii) which
acquires all or substantially all of such party’s operating assets, (iv) which
is under common ownership or control with such party, or (v) into which
such party is merged or reorganized pursuant to any plan of merger or
reorganization.  Any attempted
assignment without such consent shall be null and void.  This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and their respective legal
successors and permitted assigns.


 


26.7.        Choice of Law; Forum and Jurisdiction.  This Agreement was entered
into in the Commonwealth of Massachusetts, and its validity, construction,
interpretation and legal effect shall be governed by the laws and judicial
decisions of the Commonwealth of Massachusetts applicable to contracts entered
into and performed entirely within the State of California and by applicable
federal law, and the choice-of-law provisions of Massachusetts law shall not be
applied to substitute the law of any other State or nation.  The parties expressly agree that any action
arising out of or relating to this Agreement shall be filed and maintained only
in the courts of the State of Massachusetts for the County of Middlesex, or the
United States District Court for the Middlesex County.  The parties hereby consent and submit to the
personal jurisdiction of such courts for the purposes of litigating any such
action.


 


26.8.        Attorneys’ Fees.  In the event any litigation or other
proceeding is brought by either party arising out of or relating to this
Agreement, the prevailing party in such litigation or other proceeding shall be
entitled to recover from the other party all costs, attorneys’ fees and other
expenses incurred by such prevailing party in such litigation or proceeding.


 


26.9.        Force Majeure.  Neither party shall be deemed in default if
its performance or obligations hereunder are delayed or become impossible or
impractical by reason of any act of God, war, fire, earthquake, labor dispute,
accident, civil commotion, epidemic, act of government or government agency or
officers, or any other cause beyond such party’s control.


 


20

















 


26,10       Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.


 


26.11       No Hire.  Subject to any limitations of applicable
law, for the term of this Agreement (as that may be renewed and/or extended by
agreement of the parties) and for a twelve month period thereafter, neither
party may solicit for employment or employ, directly or indirectly, an employee
or former employee of the other party unless such employee has left the
employment of the other party at least six (6) months previously.


 


 


IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.


 


	
  IXIA

  	
   

  	
  RADVIEW
  SOFTWARE, LTD.

  
	
   

  
	
   

  
	
  By:

  	
   

  	
  /s/
  ERROL GINSBERG

  	
   

  	
  By:

  	
   

  	
  /s/
  ILAN KINREICH

  	
   

  
	
   

  
	
  Name:

  	
   

  	
  Errol
  Ginsberg

  	
   

  	
  Name:

  	
   

  	
  Ilan
  Kinreich

  	
   

  
	
   

  
	
  Title:

  	
   

  	
  President
  and CEO

  	
   

  	
  Title:

  	
   

  	
  President
  and CEO

  	
   

  
	
   

  
	
  Date:

  	
   

  	
  February 7,
  2003

  	
   

  	
  Date:

  	
  February 7,
  2003

  	
   

  
															



 


21

















 


Exhibit “A”


 


Products Covered By Agreement


 


WebLOAD


 


	
  Part

  Number

  	
   

  	
  License

  	
   

  	
  Price

  	
   

  	
  18%
  S&M

  	
   

  	
  Total

  
	
  WL50 (NEW)

  	
   

  	
  50

  	
   

  	
  [  *  
  ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WL100

  	
   

  	
  100

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WL300

  	
   

  	
  300

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WL500

  	
   

  	
  500

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WL1000

  	
   

  	
  1,000

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WL3000

  	
   

  	
  3,000

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WL5000

  	
   

  	
  5,000

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WL Unltd

  	
   

  	
  Unlimited

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  



 


WebRM


 


	
  Part

  Number

  	
   

  	
  License

  	
   

  	
  Price

  	
   

  	
  18%
  S&M

  	
   

  	
  Total

  
	
  RM300 (NEW)

  	
   

  	
  300

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  RM500 (NEW)

  	
   

  	
  500

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  RM1000

  	
   

  	
  1,000

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  RM3000

  	
   

  	
  3,000

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  RM5000

  	
   

  	
  5,000

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  RM10000

  	
   

  	
  10,000

  	
   

  	
  [  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  RM20000 (NEW)

  	
   

  	
  20,000

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  RM Unltd

  	
   

  	
  Unlimited

  	
   

  	
  Quote

  	
   

  	
   

  	
   

  	
   

  



 


(Prices exclude WebLOAD Workstations, priced
separately)


 


WebLOAD Workstation


 


	
  Part

  Number

  	
   

  	
  License

  	
   

  	
  Price

  	
   

  	
  18%
  S&M

  	
   

  	
  Total

  
	
  WS1

  	
   

  	
  Single

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WS5

  	
   

  	
  5-pak

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WS10

  	
   

  	
  10-pak

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WS15

  	
   

  	
  15-pak

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WS25

  	
   

  	
  25-pak

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  
	
  WS50

  	
   

  	
  50-pak

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  	
   

  	
  [ 
  *   ]

  



 


Note: Each Workstation is 10 virtual clients


 












* Confidential


 


22

















 


Pricing is effective July 1, 2002


18% Support and Maintenance applies to the
license fee.


Payment Terms are 30 Days.


 


WebLoad
500 – [ * ]


WebLoad
1000 – [ * ]


 


WebLoad
Resource Manager 500 - [ * ]


WebLoad
Resource Manager 1000 - [ * ]


WebLoad
Resource Manager 3000 - [ * ]


 


The
Resource manager configuration gives access to multiple users to share the full
license through resource manager workstations. Each workstation (per seat)
costs [ * ] and there is volume discount - 10-pak costs [ * ].


 


 












* Confidential


 


23

















 


Exhibit “B”


 


Parties As To Whom Rights Are Exclusive


 


Spirent


 


Agilent


 


Antara


 


EXFO


 


Digital Lightwave


 


24

















 


Exhibit “C”


 


Third Party Rights Products


 


ActiveCube
- ActiveCube Exporting Capabilities


ActiveCube
- Active Reports Viewer


Apachi
– Axis


APEX
Software Corporation – True OLE DBGrid


Blue
Sky Software – RoboHelp Classic


Certicom
– SSL Plus


Dundas
– Dundas Files


Faircom
– Ctree


Global
Majic Software Inc – GMS Automobile Gauge ActiveX Control


Global
Majic Software Inc – GFX Module Ocx


Global
Majic Software Inc – GMS Odometer ActiveX Control


hallogram
Publishing – Component Toolbox


Innovasys
– Properties List Control


Macrovision
– FlexLM


MicroQuill
– SmartHeap


Microsoft
– Microsoft Forms


Microsoft
– ATL Module for Windows NT


Microsoft
– Microsoft C Runtime Library


Microsoft
– Microsoft MCF Library


Microsoft
– Extended MAPI 1.0 for Windows NT


Microsoft
– Microsoft Data Grid Control 6.0


Microsoft
– Microsoft Data List Control 6.0


Microsoft
– Microsoft ADO Data Control 6.0


Microsoft
– Microsoft FlexGrid Control 6.0


Microsoft
– Microsoft Standard Data Formatting Object DLL


Microsoft
– Microsoft Masked Edit Controls


Microsoft
– Microsoft OLE 2.30 for Windows NT


Microsoft
– Microsoft GFX Module Ocx


Microsoft
– Microsoft ActiveX Control


Microsoft
– Microsoft CMDialog ActiveX Control DLL


Microsoft
– Microsoft common control


Microsoft
– Microsoft Rich Edit


Mozilla
– Mozilla DLL


Nsoftware
– ipworks lib


Quicksoft
Corp. – EasyMail


RogueWave
– Stingray Objective Toolkit/X 2.0


RogueWave
– Tools H++ library


RogueWave
– Threads H++ library


RSA
Data Security Inc - BSAFE


SAP
– SAP library


Software
FX – Chart FX


Ssleay
– SSL Certificate Module


Sun
Microsystems – JRE


Word
Wide Web Consortium – Jigsaw


 


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