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,

 

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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