exv10w97



 





Exhibit 10.97




Visual Studio Partner




Master Agreement



The Microsoft entity specified in Exhibit A (“us”) and “you,” the entity signing
below, agree as follows.





	1.	 	SCOPE. This Master Agreement contains the general terms for participation in various
Microsoft partner initiatives relating to Microsoft software development technologies. This
Master Agreement is supplemented by addenda containing the specific terms for participation in
individual initiatives (“Addenda”). Addenda may be signed by us or our affiliates. If there is
any inconsistency between this Master Agreement and an Addendum, the Addendum will prevail.






	2.	 	DEFINITIONS. All references to this “Master Agreement” are meant to include all Addenda and
other attachments, except where the context indicates otherwise. In addition, the following
definitions apply:






	 	2.1	 	“Eligible Products” means your software products as described in the Addenda we sign
with you.
	 
	 	2.2	 	“Microsoft Platforms” means any current and future Microsoft operating system
products, Microsoft run-time technologies (such as the .NET Framework), and Microsoft
application platforms (such as Microsoft® Office or Microsoft® Dynamics) that we offer
during the Term.
	 
	 	2.3	 	“Software” means any Microsoft software or other materials we provide you under this
Master Agreement.






	3.	 	INSTALLATION AND USE RIGHTS.






	 	3.1	 	General. You may install and use copies of the Software to design, develop, and test
Eligible Products.
	 
	 	3.2	 	Pre-Release Code. The Software may include pre-release code. The license terms with
the pre-release code apply to your use of it. If an Addendum gives you additional rights
to pre-release code, you also have those rights. In addition to any rights granted in the
license terms accompanying pre-release code or in an Addendum, you may, in accordance with
this Master Agreement, distribute Eligible Products that include or are developed from the
pre-release code if and only if we (a) give you our prior written consent; or (b) you test
and verify that the Eligible Products are fully compatible with the “release to
manufacturing” version of such code.
	 
	 	3.3	 	Third Party Materials. The Software may include third party programs or materials.
The license terms with those programs or materials apply to your use of them, and we are
not liable for them.






	4.	 	DISTRIBUTION RIGHTS AND REQUIREMENTS.






	 	4.1	 	Distribution Rights. The Software may contain the following items (“Distributable
Code”) that you may distribute in conjunction with Eligible Products if you comply with
Section 4.2:






	 	•	 	REDIST.TXT Files. You may copy and distribute the object code form of code listed
in REDIST.TXT files, if any.
	 
	 	•	 	Sample Code. You may modify, copy, and distribute the source and object code form
of code marked as “sample,” if any.
	 
	 	•	 	Image Library. You may copy and distribute images and animations in the Image
Library, if any, as described in the software documentation. You may also modify that
content. If you modify the content, it must be for use that is consistent with the
permitted use of the unmodified content.





 









 






	 	4.2	 	General Restrictions.






	 	•	 	Pass-Thru Terms. You will require distributors and external end users of
Distributable Code to agree to terms that protect it at least as much as this Master
Agreement.
	 
	 	•	 	Copy Quality. You will ensure that the copies of Distributable Code you distribute
are equivalent in quality to the copies included in the Software. At our request, you
will send us representative copies for our inspection. If we notify you that we are
dissatisfied with the quality of your copies, you will promptly correct the
deficiencies.
	 
	 	•	 	Legal Notices. You will not alter any copyright, trademark, patent, or other legal
notice or disclaimer in the Distributable Code.
	 
	 	•	 	Microsoft Platforms. You will not distribute the Distributable Code to run on a
platform other than a Microsoft Platform.
	 
	 	•	 	Malware. You will not include Distributable Code in malicious, deceptive, or
unlawful programs.
	 
	 	•	 	Excluded Licenses. You will not modify or distribute the source code of any
Distributable Code so that any part of it becomes subject to an Excluded License. An
“Excluded License” is one that requires, as a condition of use, modification, or
distribution, that (a) the code be disclosed or distributed in source code form; or
(b) others have the right to modify it.






	 	4.3	 	Eligible Product Restrictions.






	 	•	 	Copyright Notices. You will display your valid copyright notice on Eligible Products.
	 
	 	•	 	Our Trademarks. You will not use Microsoft trademarks in Eligible Products’ names
or in a way that suggests Eligible Products come from or are endorsed by Microsoft.
You may, however, refer to Microsoft products or services in accordance with our
trademark guidelines, currently located at
http://www.microsoft.com/trademarks.
	 
	 	•	 	Virus and Spyware Tests. You will test and clean all your copies of Distributable
Code, using the best commercially available (in your reasonable judgement) antivirus
and antispyware software, before you distribute them in conjunction with Eligible
Products.






	5.	 	SUBLICENSE RIGHTS. You may permit (a) independent contractors to install and use copies of
the Software to help you design, develop, or test Eligible Products; and (b) distributors to
copy and distribute the Distributable Code as part of Eligible Products. However, your
contractors and distributors must comply with all terms applicable to you, and you will be
jointly and severally responsible for breach of any such terms by your contractors or
distributors.






	6.	 	SCOPE OF LICENSE. The Software is licensed, not sold. This Master Agreement only gives you
some rights to the Software. We reserve all other rights. Unless applicable law gives you more
rights despite this limitation, you may use the Software only as expressly permitted herein.
In doing so, you must comply with any technical limitations in the Software that only allow
you to use it in certain ways. You may not:






	 	•	 	reverse engineer, decompile, or disassemble the Software, except and only to the extent
that applicable law expressly permits, despite this limitation;
	 
	 	•	 	publish the entire Software for others to copy;





 









 






	 	•	 	rent, lease, or lend the Software; or
	 
	 	•	 	transfer the Software to any third party.






The patent rights, if any, granted hereunder only apply to the Software, and do NOT extend to
any component or file not included in the Software (such as modifications or derivative works
of the Software, other software or technology needed to use the Software, or combinations of
the Software with other software or hardware).




	7.	 	OTHER SOFTWARE TERMS.






	 	7.1	 	Acceptance. The Software and any media are deemed accepted upon your receipt of them.
	 
	 	7.2	 	Support. Unless expressly provided in Addendum, we may not provide support services
for the Software. You, however, will be responsible for providing support for Eligible
Products.






	8.	 	PAYMENT TERMS.






	 	8.1	 	Program Fees. We will invoice you for any fees you must pay under an Addendum. You
will pay all invoices within 45 days after the invoice date, in accordance with the
instructions in our invoice. We may assess a late payment charge of 1.5% per month or the
highest lawful rate, whichever is less, on all past due amounts. All amounts payable will
be reported, invoiced, and paid in U.S. dollars.






	 	8.2	 	Taxes.






	 	(a)	 	The amounts you pay do not include any foreign, U.S. federal, state, local,
municipal, or other governmental taxes, duties, levies, fees, excises, or tariffs
arising out of or relating to the transactions contemplated herein. However, you will
pay us any applicable value added, goods and services, sales or use taxes, or like
taxes that are owed by you solely as a result of entering into this Master Agreement
and which are permitted to be collected from you by us under applicable law. You may
provide us a valid exemption certificate, in which case we will not collect taxes
covered by such certificate. We are not liable for any of your taxes that you are
legally obligated to pay that are incurred or arise in connection with or are related
to the sale of goods and services hereunder (including net income or gross receipts
taxes, franchise taxes, and/or property taxes), and all such taxes will be your
financial responsibility. You will defend. indemnify, and hold us harmless from any of
the foregoing taxes (including sales or use taxes paid by you to us) or claims, causes
of action, costs (including reasonable attorneys’ fees), and any other liabilities of
any nature whatsoever related to such taxes.
	 
	 	(b)	 	If any non-U.S. tax authorities determine that taxes must be withheld on your
payments to us, you may deduct such taxes from the amount you owe us and pay them to
the appropriate taxing authority, but only if you promptly secure and give us an
official receipt for such taxes or other documents necessary to enable us to claim a
U.S. Foreign Tax Credit. You will ensure that any taxes withheld are minimized to the
extent possible under applicable law.
	 
	 	(c)	 	This Section 8.2 governs the treatment of all taxes arising as a result of or
in connection with this Master Agreement, notwithstanding any other provision.






	 	8.3	 	Delivery Terms. All media we provide you will be delivered DDU (Delivered Duty
Unpaid) (as defined in Incoterms 2000) at the port of entry for your country.






	9.	 	FEEDBACK. If you give us feedback about the Software, you give us, without charge, the right
to use, share, and commercialize your feedback in any way and for any purpose. You also give
to third parties, without charge, any patent rights needed for their products, technologies,
and services to use or interface with any specific parts of any Microsoft software or service
that includes the feedback. You





 









 






will not give feedback that is subject to a license that requires us to license our software or
documentation to third parties because we include your feedback in them. We may also use any
technical information we gather or derive as part of support or other services provided to you
in connection with this Master Agreement, in order to improve Microsoft products or services,
or to provide customized services or technologies to you. We may disclose this information to
others, but not in a form that personally identifies you.




	10.	 	AUDITS. During the Term and for 2 years thereafter, you will keep all usual and proper
records relating to the Software and any Eligible Products, sufficient to determine your
compliance with this Master Agreement, including any amounts payable hereunder. You will
permit an independent certified public accountant we select (not on a contingent fee basis) to
conduct an audit of all of your records, information, personnel, and facilities for purposes
of verifying your compliance. The accountant will give you at least 5 days’ advance notice of
the audit, and will conduct it during your regular business hours. The accountant will provide
us a summary of its findings. If an audit does not reveal a material lack of compliance with
this Master Agreement, we will not initiate another audit for at least one year after that
audit. If an audit reveals an underpayment of fees, you will pay us the unpaid amount. If the
underpayment is by more than 5% for any period, you will pay our costs associated with the
audit.






	11.	 	YOUR WARRANTIES. You represent and warrant that (a) you have the right to enter into and
perform this Master Agreement; (b) there is no pending or threatened dispute or controversy
relating to Eligible Products; (c) Eligible Products comply and will comply with all
applicable laws; and (d) Eligible Products do not and will not violate any third party
intellectual property or other legal rights.






	12.	 	LEGAL EFFECT. This Master Agreement describes certain legal rights. You may have other rights
under the laws of your country. This Master Agreement does not change your rights under the
laws of your country if the laws of your country do not permit it to do so.






	13.	 	DISCLAIMER OF WARRANTY. Except for any express warranties in the specific license terms for
any Software and any services, trademarks, or logos we provide you in connection with this
Master Agreement, we provide such items “AS-IS.” You bear the risk of using them. We give no
express warranties, guarantees, or conditions. To the extent permitted under your local laws,
we exclude the implied warranties of merchantability, fitness for a particular purpose, and
non-infringement. If we provide you with any marketing benefits under an Addendum, we make no
representations, assurances, or warranties regarding the number of customers that you may gain
or any other benefits that you may enjoy as a result of the marketing benefits.






	14.	 	LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. You can recover from us and our
suppliers only direct damages up to the greater of the amount you paid under this Master
Agreement or U.S. $5.00. You cannot recover any other damages, including lost profits or
consequential, special, indirect, or incidental damages. This limitation applies to (a)
anything related to the Software, services, content (including code) on third party Internet
sites, or third party programs; and (b) claims for breach of contract, breach of warranty,
guarantee or condition, strict liability, negligence, or other tort to the extent permitted by
applicable law. It also applies even if we knew or should have known about the possibility of
the damages. The above limitation or exclusion may not apply to you because your country may
not allow the exclusion or limitation of incidental, consequential, or other damages.





15. INDEMNITY.





	 	15.1	 	Claims and Losses. You will defend us, our affiliates and successors, and the
officers, directors, employees, and agents of each (“Microsoft Indemnitees”) against any
and all threats, actions, suits, claims, demands, or other proceedings brought by others,
arising out of or relating to (a) the marketing, distribution, or use of Eligible Products
or modifications or derivative works of the Software made by you or on your behalf, if
such claims, etc. would have been avoided by the exclusive use of the unmodified Software;
or (b) any facts that, if true, would be a breach of your




 









 






	 	 	 	warranties or obligations in this Master Agreement, including obligations in any Addendum
(“Claims”). You will also indemnify and hold Microsoft Indemnitees harmless from all
damages, losses, liabilities, injuries, judgments, fines, penalties, interest, assessments,
costs, and expenses of any kind attributable to Claims, including reasonable attorneys’ and
experts’ fees (“Losses”).
	 
	 	15.2	 	Procedures. We will promptly notify you of any Claim. We will permit you, through
counsel chosen by you and reasonably acceptable to us, to answer and assume the defense of
any Claim, and will cooperate with you at your request and expense in all reasonable
respects in the defense. You will not be responsible for any settlement made by us without
your written permission, which permission shall not be unreasonably withheld. We may also
employ separate counsel and participate in the defense at our own expense. You may not
settle any Claim on behalf of a Microsoft Indemnitee, or publicize any settlement of a
Claim, without first obtaining our written permission, which we will not unreasonably
withhold.






	16.	 	CONFIDENTIALITY. If you have signed a standard reciprocal Microsoft Corporation
Non-Disclosure Agreement (“NDA”) with us, then any Confidential Information (as defined
therein) relating to the subject matter of this Master Agreement, including the terms of this
Master Agreement, will be subject to the NDA. If not (or if that NDA terminates during the
Term), then the following terms apply:






	 	16.1	 	Definition. The terms of this Master Agreement and any Addenda, and any Software
other than that which you may distribute or disclose under this Master Agreement, are our
“Confidential Information.”
	 
	 	16.2	 	Use. For 5 years after entering into this Master Agreement, you may not disclose
Confidential Information to third parties. You may disclose Confidential Information only
to your employees and consultants who need to know the information to assist you. You must
have written agreements with them that protect the Confidential Information at least as
much as this Master Agreement.
	 
	 	16.3	 	Exclusions. You may disclose Confidential Information in response to a judicial or
governmental order. You must first give written notice to us to allow us to seek a
protective order or otherwise protect the information. Confidential Information does not
include information that (a) becomes publicly known through no wrongful act; (b) you
received from a third party who did not breach confidentiality obligations to Microsoft or
its suppliers; or (c) you developed independently.
	 
	 	16.4	 	Media Communications. Any press release or communication to the press or public
regarding this Master Agreement and the parties’ relationship will be made only after
prior consultation with and written approval of each party. You may, however, publicly
describe your participation, if any, in specific Visual Studio partner programs in way
that is accurate, is not misleading in any way, and does not claim or imply Microsoft
endorsement of you or your Eligible Products.






	17.	 	TERM AND TERMINATION.






	 	17.1	 	Term. This Master Agreement will become effective on the later of the dates you and
we sign it, and will end on the third-year anniversary of that date, unless terminated
earlier (“Term”).
	 
	 	17.2	 	Termination of Master Agreement. During the Term, either party may immediately
terminate this Master Agreement (a) upon a material breach of this Master Agreement by the
other party, including breach of Sections 11, 16, or 18.5 or any infringement of the first
party’s proprietary rights; (b) if the other party does not cure any other breach of this
Master Agreement within 30 days after written notice; (c) upon expiration or termination
of the last remaining Addendum in effect between the parties; or (d) if the other party is
found bankrupt, admits its inability to pay or ceases to pay debts as they become due, or
otherwise can reasonably be considered insolvent.




 









 






	 	17.3	 	Termination of Addenda. During the Term, either party may immediately terminate an
Addendum (a) upon the other party’s material breach of the Addendum or this Master
Agreement; or (b) for any other breach of the Addendum or this Master Agreement by the
other party that is not cured within 30 days after written notice. In addition, upon any
expiration or other termination of this Master Agreement, all Addenda will also terminate.
	 
	 	17.4	 	Effect of Termination. Neither party will be responsible for any costs or damages
resulting from the termination of this Master Agreement or any Addendum in accordance with
this Master Agreement. Expiration or other termination of this Master Agreement will not
affect any external end user licenses you have previously granted in accordance with this
Master Agreement. In addition, unless we terminate this Master Agreement or an Addendum
for your material breach, you may (a) for a period of 90 days after termination, continue
to distribute copies of Eligible Products in accordance with this Master Agreement that
are in your inventory or distribution channel as of the effective date of termination; and
(b) continue to exercise any rights granted hereunder as necessary to provide external end
users with technical support for copies of Eligible Products licensed to them in
accordance with this Master Agreement.
	 
	 	17.5	 	Return or Destroy. Upon expiration or other termination of this Master Agreement or
an Addendum (or, if this Master Agreement gives you rights surviving such expiration or
other termination, as in Section 17.4, then after such license rights expire), you must
return or destroy all full or partial copies of the Software in your possession or under
your control within 30 days after the termination date. At our request, you will certify
such return or destruction in writing
	 
	 	17.6	 	Survival. All definitions and Sections 8 through 18, together with any terms in
Addenda that are designated as surviving, will survive expiration or termination of this
Master Agreement. Upon any termination of an Addendum but not this Master Agreement, the
terms in Addendum designated as surviving, together with the rest of this Master
Agreement, will survive.






	18.	 	GENERAL.






	 	18.1	 	Notices. All notices, authorizations, and requests relating to this Master Agreement
will be in writing. Notices will be deemed given on the day of receipt by messenger,
delivery service, email, fax, or U.S. mail (postage prepaid, certified or registered,
return receipt requested) and addressed as follows (or to such other address as may be
designated by written notice under this Section):





	 	 	 	 
	 	If to us:

	 	If to you:
	 	 
	 	 
	 	To the entity specified in Exhibit A

	 	Name of entity: Borland Software Corporation
	 	Attention: VS Partner Program Manager

	 	Address: 20450 Stevens Creek Blvd.
	 	Copy to: VS Partner Program Attorney

	 	Suite 800, Cupertino, CA 95014-2265
	 	Email: vsipinfo@microsoft.com

	 	Attention: Terry Carroll
	 	 

	 	Fax: 408-517-2869
	 	 

	 	Email:







	 	18.2	 	Our Relationship. Even if we call you a “partner,” you are an independent contractor
for purposes of this Master Agreement. This Master Agreement will not be construed as
creating a partnership, joint venture, agency, or franchise relationship or any fiduciary
duty. You do not have the power to (a) make any promise or warranty on behalf of us or our
affiliates; (b) vary any terms, conditions, warranties, or covenants by us or our
affiliates; or (c) grant any person any rights that we have not previously authorized in
writing.
	 
	 	18.3	 	Waivers. No waiver of any breach of any term of this Master Agreement will constitute
a waiver of any other breach of the same or other terms. No waiver will be effective
unless made in a writing signed by an authorized representative of the waiving party.




 









 






	 	18.4	 	Severability. If a court finds any term of this Master Agreement to be unenforceable,
unlawful, or invalid, that term will be enforced to the maximum extent permissible so as
to effect the intent of the parties, and the remainder of this Master Agreement will
continue in full force and effect.
	 
	 	18.5	 	Assignment. You may not assign this Master Agreement, or any rights or obligations in
this Master Agreement, without our prior written consent. For purposes of this Master
Agreement, an “assignment” by you includes each of: (a) a change in your beneficial
ownership of greater than 20% (whether in a single transaction or series of transactions)
if you are a partnership, trust, limited liability company, or other like entity; (b) your
merger with another party, whether or not you are the surviving entity; (c) the
acquisition of more than 20% of any class of your voting stock (or any class of non-voting
security convertible into voting stock) by another party (whether in a single transaction
or series of transactions); and (d) the sale or other transfer of more than 50% of your
assets (whether in one or multiple transactions).
	 
	 	18.6	 	Governmental Approvals. You will, at your own expense, obtain and maintain in full
force and effect all governmental approvals or filings, if any, and comply with all
applicable laws and regulations, in connection with your performance under this Master
Agreement.
	 
	 	18.7	 	Export Restrictions. The Software may be subject to United States export laws and
regulations. You must comply with all domestic and international export laws and
regulations that apply to the Software. These laws include restrictions on destinations,
end users, and end use. For additional information, see www.microsoft.com/exporting.
	 
	 	18.8	 	Applicable Law. If you are based outside of the European Union, this Master Agreement
will be governed by the laws of the State of Washington and the United States. Otherwise,
this Master Agreement will be governed by the laws of Ireland. The 1980 United Nations
Convention on Contracts for the International Sale of Goods will not apply to this Master
Agreement.
	 
	 	18.9	 	Dispute Resolution. If we bring an action to enforce this Master Agreement, we will
bring it in the jurisdiction where you are based. If you bring an action to enforce this
Master Agreement against any Microsoft affiliate located outside of the European Union,
you will bring it in the State of Washington, USA. Otherwise, you will bring such action
in Ireland. Either party may, however, seek injunctive relief with respect to a violation
of intellectual property rights or confidentiality obligations in any appropriate
jurisdiction.
	 
	 	18.10	 	Entire agreement; Modifications. This Master Agreement, together with the NDA (if
any) and the terms for supplements, updates, Internet-based services and support services
that you use, is the entire agreement between you and us with respect to the subject
matter of this Master Agreement. Except as otherwise provided herein, this Master
Agreement will not be modified except by a subsequent written agreement signed by your and
our authorized representatives.





	 	 	 	 	 	 	 	 	 	 	 
	THE MICROSOFT ENTITY INDICATED IN	 	YOU:	 	 	 	 
	EXHIBIT A:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Entity name:
	 	Borland	 	 
	Signature: 

Printed name:

	 	/s/ Darrell G. Malcolm
 

Darrell G. Malcolm
	 	 
	 	Signature:

Printed name:
	 	/s/ Tod Nielsen
 

Tod Nielsen
	 	 
	Date: 11 Aug 2006

	 	 	 	Date: 8/10/06