Distribution Agreement

EXHIBIT 10.1


CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.


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MINI-OSS SOFTWARE LICENSE, DEVELOPMENT
AND DISTRIBUTION AGREEMENT


BY AND BETWEEN


DORADO SOFTWARE, INC.


AND


ACCELERATED NETWORKS, INC.


DATED


JULY 1, 2000


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[DORADO LOGO]


DORADO SOFTWARE, INC.
MINIOSS SOFTWARE LICENSE, DEVELOPMENT AND DISTRIBUTION AGREEMENT


This miniOSS Distribution Agreement ("Agreement"), dated July1, 2000 ("Effective Date") is made by and between DORADO SOFTWARE INC. ("Dorado"), having its principal place of business at 5176 Hillsdale Circle, El Dorado Hills, CA. 95762 and ACCELERATED NETWORKS ("CUSTOMER"), having its principal offices at 301 Science Drive, Moorpark, CA 93021, agree as follows:


1 DEFINITIONS:


1.1 SOFTWARE PRODUCTS means the Dorado Software proprietary computer
software set forth in Schedule A including but not limited to
Oware [***] to RedCell SAC & RedCell SPC and Related Materials
(including all new releases to the foregoing provided hereunder).


1.2 OWARE(TM) - is Dorado Software's flagship software product for
creating, executing and managing distributed business
applications.


1.3 REDCELL(TM) MetaPolicy Management - is a Dorado Software Solution
Blade [***], built with Oware for management of network policies
to deliver differentiated class of service to users of IP network
resources such as QoS policy-based networking for intranets and
the Internet. It consists of [***], created with Oware.


1.4 REDCELL(TM) SERVICE ASSURANCE CENTER (SAC) - is a Dorado Software
Solution Blade, built with Oware for managing of Service-Level
Agreements, Network Faults and Customer information. It consists
of [***], created with Oware technology.


1.5 REDCELL(TM) SERVICE PROVISIONING CENTER (SPC) - is a Dorado
Software Solution Blade, built with Oware for provisioning and
activation of OSI Level 1 & 2 services. It consists of [***],
created with Oware technology.


1.6 CUSTOMER SOLUTION BLADE means any Customer proprietary computer
software (in Source Code or Object Code) and Related Materials
developed with or incorporating the Software Products (or portions
thereof) or any derivative works of the Software Products (or
portions thereof), [***] in accordance with the Specifications
relating to Customer equipment in the SOW and the terms and
conditions hereunder.


1.7 RELATED MATERIALS means all materials furnished by Dorado Software
for use with, or promotion of, the Software Products, including
operating and instructional manuals and information,
specifications, and release notes.


1.8 SOURCE CODE means the referenced software, in human readable or
encrypted machine-readable form.


1.9 OBJECT CODE means the referenced software in a format that can be
executed by the processing unit of a computer without further
modification licensed.


------------------- ***Confidential treatment has been requested for certain redacted provisions of this agreement. The redacted provisions are identified by three asterisks enclosed by brackets and underlined. The confidential portion has been filed separately with the Securities and Exchange Commission.


-------------------------------------------------------------------------------- Dorado Software, Inc. miniOSS Distribution Agreement Page 1


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1.10 ENHANCEMENTS means changes or additions to the Software Products
or Related Materials that add significant new functions or
substantially improved performance.


1.11 ERROR means any material problem caused by an incorrect operation
of the computer code in the Software Products or an incorrect
statement or diagrams in Related Materials that produces incorrect
results.


1.12 PRODUCT TRANSFER DATE means the contract date to be used for the
determination of warranty periods, any acceptance periods, or any
other event which is controlled by an agreed to start date. This
date shall coincide with the date the software is received by
Customer.


1.13 DELIVERABLE means any item, documentation, information, software
or other materials identified in a SOW to be delivered to
Customer.


1.14 PROPRIETARY RIGHTS means patent rights, copyrights, trademark
rights, trade secret rights, and all other intellectual or
industrial property and proprietary rights of any sort anywhere in
the world.


1.15 SOW means the Statement of Work detailing the development of the
Customer Solution Blade attached hereto as Schedule B and any
future Statements of Work duly executed by authorized
representatives of both parties and attached hereto.


1.16 SPECIFICATIONS means either the requirements and specifications
for any Deliverable as set forth in the applicable SOW for that
Deliverable or, for the Software Products, the requirements and
specifications set forth in the Related Materials and any other
published documentation relating to the Software Products.


2 RECITALS


2.1 This Agreement specifies the terms and conditions under which
Dorado will license and provide the Software Products and services
to Customer and will develop the Customer Solution Blade for
Customer. This Agreement also sets forth the terms and conditions
under which Customer and/or its qualified affiliates shall pay for
the Software Products, Customer Solution Blade and services from
Dorado defined herein. All prices contained in this Agreement are
stated in US dollars.


2.2 Customer may use Software Products to develop it's own Customer
Solution Blades.


2.3 Customer may use [***] Dorado's RedCell(TM)Service Assurance
Center (SAC) and RedCell(TM)Service --- Provisioning Center (SPC)
applications within its Customer Solution Blades.


2.4 Dorado shall deliver the Software Products to Customer to enable
Customer to [***] develop modified --- versions of the Customer
Solution Blade [***]. ---


2.5 Customer may reproduce and distribute the portions of Software
Products [***] or in any Customer Solution Blade that Customer
develops [***] on its own in a runtime environment under the terms
of this Agreement.


2.6 Utilizing the Software Products, Dorado and Customer will work
together to deliver the Customer Solution Blade in multiple Phases
as defined in Schedule B of this agreement.


3 LICENSE AND ASSIGNMENT:


3.1 Subject to Customer's compliance with the terms and conditions of
this Agreement, Dorado hereby grants to Customer a perpetual,
nonexclusive, fully paid-up, royalty-free, nontransferable (except
as set forth in Section 14.3), irrevocable (except as set forth in
Section 14.1) license to (or through its independent contractors):
(a) install, use, execute, modify and create derivative works of
the Software Products on the computer(s) used by Customer at its
facilities for purposes of developing, testing and manufacturing
Customer Solution Blades; and (b) use the Related Materials only
in conjunction with the Software Products.


------------------- ***Confidential treatment has been requested for certain redacted provisions of this agreement. The redacted provisions are identified by three asterisks enclosed by brackets and underlined. The confidential portion has been filed separately with the Securities and Exchange Commission.


-------------------------------------------------------------------------------- Dorado Software, Inc. miniOSS Distribution Agreement Page 2


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3.2 Subject to Customer's compliance with the terms and conditions of
this Agreement, Dorado hereby grants to Customer a perpetual,
fully paid-up, royalty-free, non-transferable (except as set forth
in Section 14.3), irrevocable (except as set forth in Section
14.1) license to reproduce, distribute and sublicense to
Customer's end user customers runtime versions of (a) the Oware
software for use in conjunction with Customer Solution Blades and
(b) any of the Software Products or portions thereof that are
incorporated into any Customer Solution Blade only for the
purposes of managing and controlling Customer's own products and
those products that Customer OEM's from third parties. Customer
shall have the right to sublicense the rights set forth in this
Section 3.2 to original equipment manufacturers (OEMs),
value-added resellers (VARs) and other entities in the chain of
distribution of Customer Solution Blades.


3.3 Except for the rights explicitly granted to Customer herein, all
rights, title, and interest in and to the Software Products (and
all derivative works thereof) are and shall remain with Dorado.
Customer acknowledges that no ownership right, title, or interest
(except for the rights explicitly granted to Customer herein) in
or to the Software Products is granted under this Agreement, and
no such assertion shall be made by Customer.


3.4 Customer (and its independent contractors) may use as many copies
of the Software Products as is required for Customer's internal
business [***].


3.5 Dorado also grants to Customer the rights to distribute runtime
versions of the Software Products and the applicable portions of
the Related Materials to be used only in support of Customer
Solution Blades to Customer's end-user customers. Customer shall
have the right to sublicense the rights set forth in this Section
3.5 to original equipment manufacturers (OEMs), value-added
resellers (VARs) and other entities in the chain of distribution
of Customer Solution Blades.


3.6 Dorado, as part of the Software Maintenance agreement, will
continue to update Oware and the Dorado standard versions of
RedCell SAC and RedCell SPC for Customer.


3.7 Customer can have Dorado or its own resources or a third party
continue the updates to the Customer Solution Blades to include
additional functionality and Customer device types, whether OEMed
or manufactured by Customer.


3.8 Dorado hereby grants to Customer an option to include the RedCell
MetaPolicy application into the terms of this Agreement by
incorporating RedCell MetaPolicy under the definition of Software
Products hereunder. Customer may exercise this option by (i)
providing Dorado written notice of its intent to exercise such
option in accordance with Section 14.6 below on or before October
1, 2000 ("Exercise Notice") and (ii) payment of a one-time license
fee of [***] U.S. Dollars to --- Dorado on or before October 1,
2000. If the option to include the RedCell MetaPolicy is properly
exercised by Customer according to this Section 3.8, Customer may
elect to include the RedCell MetaPolicy under the terms and
conditions of the Software Maintenance and Support Agreement
attached as Schedule D by providing Dorado written notice
simultaneously with or within thirty (30) days following the
Exercise Notice, and Dorado will invoice Customer based on an
additional annual maintenance fee of [***] U.S. Dollars (covering
the RedCell MetaPolicy product) in accordance with Section 4
of the Software Maintenance and Support Agreement, with such
maintenance and support coverage to begin upon receipt by Customer
of the RedCell MetaPolicy application.


4 DORADO DEVELOPMENT OF THE CUSTOMER SOLUTION BLADE


4.1 Development. Dorado agrees to undertake and complete development
of the each Deliverable (including, without limitation, the
developed Customer Solution Blade) in accordance with and on the
schedule specified in each SOW.


------------------- ***Confidential treatment has been requested for certain redacted provisions of this agreement. The redacted provisions are identified by three asterisks enclosed by brackets and underlined. The confidential portion has been filed separately with the Securities and Exchange Commission.


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4.2 Development Project Management. Customer and Dorado designate
the following Project Managers:
Customer Project Manager: Joanne Maccari
Phone Number: (805) 553-9680 Ext. 553
Fax Number: (805) 553-9690
email: jmaccari@acceleratednetworks.com


Dorado Project Manager: Andrew Knight
Phone Number: (916) 939-8590 ext. 3087
Fax Number: (916) 939-8595
email: aknight@doradosoftware.com


Either party may change its Project Managers at any time and from
time to time by giving the other party fifteen (15) calendar days
written notice. Each Project Manager will be responsible for (i)
monitoring the schedules and progress of work pursuant to this
Agreement and each SOW; (ii) receiving and submitting requests for
information and/or assistance; (iii) determining whether a request
he or she receives for information and/or assistance from the
other Project Manager is necessary for the other party to complete
a specific Deliverable; (iv) receiving and submitting
Deliverables; (v) cooperating with the other Project Manager to
implement acceptance testing; and (vi) supervising and recording
the exchange of Confidential Information pursuant to this
Agreement. The Project Managers will meet periodically as mutually
agreed upon by the Project Managers to discuss the progress of the
development effort and, if applicable, to exchange information and
Deliverables (with such meetings expected to occur weekly via
teleconference and bi-weekly via physical meetings in alternating
Dorado and Customer locations). Except as set forth in Section 4.3
below, neither party's Project Manager is authorized to amend,
alter or extend this Agreement in any manner. If the Project
Managers disagree on any issue, and cannot resolve it within five
(5) business days, either Project Manager may submit the problem
to the Executive Steering Committee ("ESC") The ESC shall consist
of the CEO and the V.P. of Sales/Business Development from Dorado
and Yogi Mistry and Fred Boyer from Customer and shall meet upon
the request of a Project Manager to review progress and to resolve
major issues. The Executive Steering Committee may take action
only by the unanimous written consent of all members identified
above ("ESC Action"). To the extent that the terms and conditions
of any such ESC Action conflict with the terms and conditions of
this Agreement, the terms and conditions of such ESC Action will
prevail. With the exception of interim equitable relief, neither
party shall institute legal proceedings regarding a dispute until
it has exercised good faith reasonable efforts to achieve
resolution through the foregoing procedure.


4.3 Change Orders. If Customer's Project Manager proposes a change to
a SOW, Dorado will reasonably and in good faith consider and
discuss the proposed change. Dorado agrees to accept any change
proposed by Customer where Customer agrees to bear any extra
expense to Dorado and pay (at mutually agreed time and materials
rates) for any additional work required by such change. Any
agreement to change a SOW shall be in writing signed by both
party's Project Managers ("Change Order"). Notwithstanding
anything else herein, to the extent that the terms and conditions
of any Change Order conflict with the terms and conditions of this
Agreement, the terms and conditions of this Agreement will
prevail. If the parties' Project Managers cannot agree upon a
Customer SOW change request, then either party's Project Manager
can submit the request to the ESC for resolution in accordance
with Section 4.2.


4.4 Acceptance and Rejection Procedure. When Dorado has appropriately
completed a Deliverable in accordance with the Specifications for
such Deliverable, Dorado will immediately deliver it to Customer
(even if such a delivery would occur before the


-------------------------------------------------------------------------------- Dorado Software, Inc. miniOSS Distribution Agreement Page 4 6


scheduled date for such delivery as listed in the applicable SOW).
Customer may reject any Deliverable if such Deliverable fails in
some material respect to meet the Specifications therefore. Each
Deliverable shall be inspected by Customer upon delivery and will
be deemed accepted by Customer unless written notification of
non-compliance is sent to Dorado, defined herein, within fifteen
(15) business days following receipt of such Deliverable by
Customer. A written notice of rejection should provide a
description of any such non-conformities. Upon Customer's
rejection of any Deliverable, Dorado shall correct the
non-conformities specified in the rejection notice within fifteen
(15) business following receipt of such notice. When Dorado has
made the necessary corrections to conform such a rejected
Deliverable with the Specifications, Dorado will deliver the
corrected Deliverable to Customer and the
acceptance/rejection/correction provisions above shall be
reapplied until the Deliverable is accepted by Customer; provided,
however, that upon the third or any subsequent rejection or if the
corrections are not made within thirty (30) calendar days of the
initial rejection, the issue of the Deliverable's non-compliance
shall be submitted to the ESC for resolution. If an ESC Action is
not taken within fifteen (15) business days following such
submission, Customer may terminate this Agreement by providing
fifteen (15) calendar days written notice to Dorado, unless the
Deliverable is accepted by Customer during such notice period.


4.5. Ownership of Deliverables. As between the parties, Customer
exclusively shall have all right, title and interest in and to all
Deliverables (except for the Software Products or other "Dorado
Stock" defined in this Section 4.5); and all inventions,
works-of-authorship, ideas or information made or conceived or
reduced to practice by Dorado (independently or jointly with a
third party) or the parties jointly in the course of performance
under this Agreement ("Inventions") and all Proprietary Rights in
the foregoing, subject to Dorado's rights in any "Dorado Stock"
incorporated into any Deliverable. Dorado Stock means the Software
Products, as well as derivatives and modifications thereof;
[***]. Dorado Stock shall include developed functionality not
directly related to managing and controlling Customer's own
products and those products that Customer OEM's from third
parties. [***].


4.6 Cooperation. Dorado agrees to perform, during and after the term
of this Agreement, all acts deemed necessary or desirable by
Customer to permit and assist Customer, at Dorado's hourly rate as
set forth in the most recent SOW (or, if no hourly rate is
specified in such SOW, at such rate Company in its sole discretion
deems reasonable), in evidencing, perfecting, obtaining,
maintaining, defending and enforcing Customer's Proprietary Rights
in any Deliverables, Inventions and/or the licenses and
assignments granted to Customer herein. Such acts may include, but
are not limited to, execution of documents and assistance or
cooperation in legal proceedings. If after a reasonable written
request by Customer to Dorado, Customer is unable for any reason
whatsoever to secure Dorado's signature to any document Customer
is entitled to under this Section 4.6, Dorado hereby irrevocably
designates and appoints Customer and its duly authorized officers
and agents, as Dorado's agents and attorneys-in-fact, with full
power of substitution, to act for and in its behalf and instead of
Dorado, solely to execute and file any such document and to do all
other lawfully permitted acts solely to further the purposes of
the foregoing with the same legal force and effect as if executed
by Dorado.


4.7 Moral Rights. Any assignment of copyright hereunder includes all
rights of paternity, integrity, disclosure and withdrawal and any
other rights that may be known as or referred to as "moral rights"
(collectively "Moral Rights"). To the extent such Moral Rights
cannot be assigned under applicable law and to the extent the
following is allowed by the laws in


------------------- ***Confidential treatment has been requested for certain redacted provisions of this agreement. The redacted provisions are identified by three asterisks enclosed by brackets and underlined. The confidential portion has been filed separately with the Securities and Exchange Commission.


-------------------------------------------------------------------------------- Dorado Software, Inc. miniOSS Distribution Agreement Page 5


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the various countries where Moral Rights exist, Dorado hereby
ratifies and consents to any action consistent with the terms of
this Agreement that would violate such Moral Rights in the absence
of such ratification/consent. Dorado will confirm any such
ratifications and consents from time to time as requested by
Customer.


4.8 Reports. During the term of this Agreement, Dorado shall provide
weekly status reports to Customer. The content of such reports
shall be mutually agreed upon by the parties, but at a minimum
will include (i) a list of tasks completed during the week covered
by the report, (ii) open issues that remain to be completed and or
resolved, along with proposed time frames for such completion or
resolution, (iii) all work anticipated to be completed during the
following week, and (iv) any project related dependencies.


5 LIMITED WARRANTY, LIMITATION OF LIABILITY, AND INDEMNITY


5.1 Dorado represents and warrants to Customer that as of the
Effective Date: (i) Dorado has not assigned, transferred,
licensed, pledged or otherwise encumbered any Software Product or
underlying technology or intellectual property rights with respect
thereto in a manner inconsistent with the terms of this Agreement
or agreed to do so, (ii) Dorado is not aware of any material
questions or challenges (or any potential basis therefor) with
respect to the patentability or validity of any claims of any
existing patents or patent applications relating specifically to
the Software Products, (iii) neither Dorado's entering into nor
performing this Agreement will violate any right of or breach any
obligation to any third party under any agreement or arrangement
between Dorado and such third party, and (iv) no licenses,
permissions, assignments or releases of third party rights are
necessary to give full effect the licenses and assignments granted
to Customer herein, for Dorado's development of the Customer
Solution Blade, or Customer's development, production or
distribution of any Customer Solution Blade or any other currently
anticipated exerci ...