**Exhibit 10.97*****Visual Studio Partner******Master Agreement***The Microsoft entity specified in Exhibit A (**“us”**) and **“you,”**the entity signingbelow, agree as follows.**1.** **SCOPE.**This Master Agreement contains the general terms for participation in variousMicrosoft partner initiatives relating to Microsoft software development technologies. ThisMaster Agreement is supplemented by addenda containing the specific terms for participation inindividual initiatives (**“Addenda”**). Addenda may be signed by us or our affiliates. If there isany 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 andother attachments, except where the context indicates otherwise. In addition, the followingdefinitions apply: 2.1 **“Eligible Products”**means your software products as described in the Addenda we signwith you.  2.2 **“Microsoft Platforms”**means any current and future Microsoft operating systemproducts, Microsoft run-time technologies (such as the .NET Framework), and Microsoftapplication platforms (such as Microsoft® Office or Microsoft® Dynamics) that we offerduring the Term.  2.3 **“Software”**means any Microsoft software or other materials we provide you under thisMaster Agreement.**3.** **INSTALLATION AND USE RIGHTS.** 3.1 **General.**You may install and use copies of the Software to design, develop, and testEligible Products.  3.2 **Pre-Release Code.**The Software may include pre-release code. The license terms withthe pre-release code apply to your use of it. If an Addendum gives you additional rightsto pre-release code, you also have those rights. In addition to any rights granted in thelicense terms accompanying pre-release code or in an Addendum, you may, in accordance withthis Master Agreement, distribute Eligible Products that include or are developed from thepre-release code *if and only if*we (a) give you our prior written consent; or (b) you testand verify that the Eligible Products are fully compatible with the “release tomanufacturing” 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 arenot liable for them.**4.** **DISTRIBUTION RIGHTS AND REQUIREMENTS.** 4.1 **Distribution Rights.**The Software may contain the following items (**“DistributableCode”**) that you may distribute in conjunction with Eligible Products if you comply withSection 4.2: **•** **REDIST.TXT Files.**You may copy and distribute the object code form of code listedin REDIST.TXT files, if any.  **•** **Sample Code.**You may modify, copy, and distribute the source and object code formof code marked as “sample,” if any.  **•** **Image Library.**You may copy and distribute images and animations in the ImageLibrary, if any, as described in the software documentation. You may also modify thatcontent. If you modify the content, it must be for use that is consistent with thepermitted use of the unmodified content.
 

 
 4.2 **General Restrictions.** **•** **Pass-Thru Terms.**You will require distributors and external end users ofDistributable Code to agree to terms that protect it at least as much as this MasterAgreement.  **•** **Copy Quality.**You will ensure that the copies of Distributable Code you distributeare equivalent in quality to the copies included in the Software. At our request, youwill send us representative copies for our inspection. If we notify you that we aredissatisfied with the quality of your copies, you will promptly correct thedeficiencies.  **•** **Legal Notices.**You will not alter any copyright, trademark, patent, or other legalnotice or disclaimer in the Distributable Code.  **•** **Microsoft Platforms.**You will not distribute the Distributable Code to run on aplatform other than a Microsoft Platform.  **•** **Malware.**You will not include Distributable Code in malicious, deceptive, orunlawful programs.  **•** **Excluded Licenses.**You will not modify or distribute the source code of anyDistributable 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, ordistribution, 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’ namesor 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 ourtrademark guidelines, currently located athttp://www.microsoft.com/trademarks.  **•** Virus and Spyware Tests. You will test and clean all your copies of DistributableCode, using the best commercially available (in your reasonable judgement) antivirusand antispyware software, before you distribute them in conjunction with EligibleProducts.**5.** **SUBLICENSE RIGHTS.**You may permit (a) independent contractors to install and use copies ofthe Software to help you design, develop, or test Eligible Products; and (b) distributors tocopy and distribute the Distributable Code as part of Eligible Products. However, yourcontractors and distributors must comply with all terms applicable to you, and you will bejointly and severally responsible for breach of any such terms by your contractors ordistributors.**6.** **SCOPE OF LICENSE.**The Software is licensed, not sold. This Master Agreement only gives yousome rights to the Software. We reserve all other rights. Unless applicable law gives you morerights 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 allowyou to use it in certain ways. You may not: **•** reverse engineer, decompile, or disassemble the Software, except and only to the extentthat 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 toany component or file not included in the Software (such as modifications or derivative worksof the Software, other software or technology needed to use the Software, or combinations ofthe 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 servicesfor the Software. You, however, will be responsible for providing support for EligibleProducts.**8.** **PAYMENT TERMS.** 8.1 **Program Fees.**We will invoice you for any fees you must pay under an Addendum. Youwill pay all invoices within 45 days after the invoice date, in accordance with theinstructions in our invoice. We may assess a late payment charge of 1.5% per month or thehighest lawful rate, whichever is less, on all past due amounts. All amounts payable willbe 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 tariffsarising out of or relating to the transactions contemplated herein. However, you willpay us any applicable value added, goods and services, sales or use taxes, or liketaxes that are owed by you solely as a result of entering into this Master Agreementand which are permitted to be collected from you by us under applicable law. You mayprovide us a valid exemption certificate, in which case we will not collect taxescovered by such certificate. We are not liable for any of your taxes that you arelegally obligated to pay that are incurred or arise in connection with or are relatedto the sale of goods and services hereunder (including net income or gross receiptstaxes, franchise taxes, and/or property taxes), and all such taxes will be yourfinancial responsibility. You will defend. indemnify, and hold us harmless from any ofthe foregoing taxes (including sales or use taxes paid by you to us) or claims, causesof action, costs (including reasonable attorneys’ fees), and any other liabilities ofany nature whatsoever related to such taxes.  (b) If any non-U.S. tax authorities determine that taxes must be withheld on yourpayments to us, you may deduct such taxes from the amount you owe us and pay them tothe appropriate taxing authority, but only if you promptly secure and give us anofficial receipt for such taxes or other documents necessary to enable us to claim aU.S. Foreign Tax Credit. You will ensure that any taxes withheld are minimized to theextent possible under applicable law.  (c) This Section 8.2 governs the treatment of all taxes arising as a result of orin connection with this Master Agreement, notwithstanding any other provision. 8.3 **Delivery Terms.**All media we provide you will be delivered DDU (Delivered DutyUnpaid) (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 rightto use, share, and commercialize your feedback in any way and for any purpose. You also giveto 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 servicethat includes the feedback. You
 

 
will not give feedback that is subject to a license that requires us to license our software ordocumentation to third parties because we include your feedback in them. We may also use anytechnical information we gather or derive as part of support or other services provided to youin 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 toothers, 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 properrecords relating to the Software and any Eligible Products, sufficient to determine yourcompliance with this Master Agreement, including any amounts payable hereunder. You willpermit an independent certified public accountant we select (not on a contingent fee basis) toconduct an audit of all of your records, information, personnel, and facilities for purposesof verifying your compliance. The accountant will give you at least 5 days’ advance notice ofthe audit, and will conduct it during your regular business hours. The accountant will provideus a summary of its findings. If an audit does not reveal a material lack of compliance withthis Master Agreement, we will not initiate another audit for at least one year after thataudit. If an audit reveals an underpayment of fees, you will pay us the unpaid amount. If theunderpayment is by more than 5% for any period, you will pay our costs associated with theaudit.**11.** **YOUR WARRANTIES.**You represent and warrant that (a) you have the right to enter into andperform this Master Agreement; (b) there is no pending or threatened dispute or controversyrelating to Eligible Products; (c) Eligible Products comply and will comply with allapplicable laws; and (d) Eligible Products do not and will not violate any third partyintellectual property or other legal rights.**12.** **LEGAL EFFECT.**This Master Agreement describes certain legal rights. You may have other rightsunder the laws of your country. This Master Agreement does not change your rights under thelaws 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 forany Software and any services, trademarks, or logos we provide you in connection with thisMaster Agreement, we provide such items “AS-IS.” You bear the risk of using them. We give noexpress warranties, guarantees, or conditions. To the extent permitted under your local laws,we exclude the implied warranties of merchantability, fitness for a particular purpose, andnon-infringement. If we provide you with any marketing benefits under an Addendum, we make norepresentations, assurances, or warranties regarding the number of customers that you may gainor 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 oursuppliers only direct damages up to the greater of the amount you paid under this MasterAgreement or U.S. $5.00. You cannot recover any other damages, including lost profits orconsequential, special, indirect, or incidental damages.**This limitation applies to (a)anything related to the Software, services, content (including code) on third party Internetsites, 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 byapplicable law. It also applies even if we knew or should have known about the possibility ofthe damages. The above limitation or exclusion may not apply to you because your country maynot 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 theofficers, directors, employees, and agents of each (**“Microsoft Indemnitees”**) against anyand 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 Productsor modifications or derivative works of the Software made by you or on your behalf, ifsuch 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 alldamages, losses, liabilities, injuries, judgments, fines, penalties, interest, assessments,costs, and expenses of any kind attributable to Claims, including reasonable attorneys’ andexperts’ fees (**“Losses”**).  15.2 **Procedures.**We will promptly notify you of any Claim. We will permit you, throughcounsel chosen by you and reasonably acceptable to us, to answer and assume the defense ofany Claim, and will cooperate with you at your request and expense in all reasonablerespects in the defense. You will not be responsible for any settlement made by us withoutyour written permission, which permission shall not be unreasonably withheld. We may alsoemploy separate counsel and participate in the defense at our own expense. You may notsettle any Claim on behalf of a Microsoft Indemnitee, or publicize any settlement of aClaim, without first obtaining our written permission, which we will not unreasonablywithhold.**16.** **CONFIDENTIALITY.**If you have signed a standard reciprocal Microsoft CorporationNon-Disclosure Agreement (**“NDA”**) with us, then any Confidential Information (as definedtherein) relating to the subject matter of this Master Agreement, including the terms of thisMaster Agreement, will be subject to the NDA. If not (or if that NDA terminates during theTerm), then the following terms apply: 16.1 **Definition.**The terms of this Master Agreement and any Addenda, and any Softwareother 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 discloseConfidential Information to third parties. You may disclose Confidential Information onlyto your employees and consultants who need to know the information to assist you. You musthave written agreements with them that protect the Confidential Information at least asmuch as this Master Agreement.  16.3 **Exclusions.**You may disclose Confidential Information in response to a judicial orgovernmental order. You must first give written notice to us to allow us to seek aprotective order or otherwise protect the information. Confidential Information does notinclude information that (a) becomes publicly known through no wrongful act; (b) youreceived from a third party who did not breach confidentiality obligations to Microsoft orits suppliers; or (c) you developed independently.  16.4 **Media Communications.**Any press release or communication to the press or publicregarding this Master Agreement and the parties’ relationship will be made only afterprior consultation with and written approval of each party. You may, however, publiclydescribe your participation, if any, in specific Visual Studio partner programs in waythat is accurate, is not misleading in any way, and does not claim or imply Microsoftendorsement 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 andwe sign it, and will end on the third-year anniversary of that date, unless terminatedearlier (“Term”).  17.2 **Termination of Master Agreement.**During the Term, either party may immediatelyterminate this Master Agreement (a) upon a *material*breach of this Master Agreement by theother party, including breach of Sections 11, 16, or 18.5 or any infringement of the firstparty’s proprietary rights; (b) if the other party does not cure any other breach of thisMaster Agreement within 30 days after written notice; (c) upon expiration or terminationof the last remaining Addendum in effect between the parties; or (d) if the other party isfound bankrupt, admits its inability to pay or ceases to pay debts as they become due, orotherwise can reasonably be considered insolvent.
 

 
 17.3 **Termination of Addenda.**During the Term, either party may immediately terminate anAddendum (a) upon the other party’s *material*breach of the Addendum or this MasterAgreement; or (b) for any other breach of the Addendum or this Master Agreement by theother party that is not cured within 30 days after written notice. In addition, upon anyexpiration 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 damagesresulting from the termination of this Master Agreement or any Addendum in accordance withthis Master Agreement. Expiration or other termination of this Master Agreement will notaffect any external end user licenses you have previously granted in accordance with thisMaster Agreement. In addition, unless we terminate this Master Agreement or an Addendumfor your material breach, you may (a) for a period of 90 days after termination, continueto distribute copies of Eligible Products in accordance with this Master Agreement thatare 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 endusers with technical support for copies of Eligible Products licensed to them inaccordance with this Master Agreement.  17.5 **Return or Destroy.**Upon expiration or other termination of this Master Agreement oran Addendum (or, if this Master Agreement gives you rights surviving such expiration orother termination, as in Section 17.4, then after such license rights expire), you mustreturn or destroy all full or partial copies of the Software in your possession or underyour control within 30 days after the termination date. At our request, you will certifysuch return or destruction in writing  17.6 **Survival.**All definitions and Sections 8 through 18, together with any terms inAddenda that are designated as surviving, will survive expiration or termination of thisMaster Agreement. Upon any termination of an Addendum but not this Master Agreement, theterms in Addendum designated as surviving, together with the rest of this MasterAgreement, will survive.**18.** **GENERAL.** 18.1 **Notices.**All notices, authorizations, and requests relating to this Master Agreementwill 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 bedesignated 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 contractorfor purposes of this Master Agreement. This Master Agreement will not be construed ascreating a partnership, joint venture, agency, or franchise relationship or any fiduciaryduty. You do not have the power to (a) make any promise or warranty on behalf of us or ouraffiliates; (b) vary any terms, conditions, warranties, or covenants by us or ouraffiliates; or (c) grant any person any rights that we have not previously authorized inwriting.  18.3 **Waivers.**No waiver of any breach of any term of this Master Agreement will constitutea waiver of any other breach of the same or other terms. No waiver will be effectiveunless 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 asto effect the intent of the parties, and the remainder of this Master Agreement willcontinue in full force and effect.  18.5 **Assignment.**You may not assign this Master Agreement, or any rights or obligations inthis Master Agreement, without our prior written consent. For purposes of this MasterAgreement, an “assignment” by you includes each of: (a) a change in your beneficialownership 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) yourmerger with another party, whether or not you are the surviving entity; (c) theacquisition of more than 20% of any class of your voting stock (or any class of non-votingsecurity convertible into voting stock) by another party (whether in a single transactionor series of transactions); and (d) the sale or other transfer of more than 50% of yourassets (whether in one or multiple transactions).  18.6 **Governmental Approvals.**You will, at your own expense, obtain and maintain in fullforce and effect all governmental approvals or filings, if any, and comply with allapplicable laws and regulations, in connection with your performance under this MasterAgreement.  18.7 **Export Restrictions.**The Software may be subject to United States export laws andregulations. You must comply with all domestic and international export laws andregulations 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 Agreementwill 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 NationsConvention on Contracts for the International Sale of Goods will not apply to this MasterAgreement.  18.9 **Dispute Resolution.**If we bring an action to enforce this Master Agreement, we willbring it in the jurisdiction where you are based. If you bring an action to enforce thisMaster 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 actionin Ireland. Either party may, however, seek injunctive relief with respect to a violationof intellectual property rights or confidentiality obligations in any appropriatejurisdiction.  18.10 **Entire agreement; Modifications.**This Master Agreement, together with the NDA (ifany) and the terms for supplements, updates, Internet-based services and support servicesthat you use, is the entire agreement between you and us with respect to the subjectmatter of this Master Agreement. Except as otherwise provided herein, this MasterAgreement will not be modified except by a subsequent written agreement signed by your andour authorized representatives.           **THE MICROSOFT ENTITY INDICATED IN** **YOU:**    **EXHIBIT A:**                       Entity name: Borland  Signature: