EX-10.12



 




Exhibit
10.12




SOFTWARE LICENSE AND DISTRIBUTION




AGREEMENT




BY




AND




BETWEEN




HEWLETT-PACKARD COMPANY




AND




VOLTAIRE INC.




DATED




August 28, 2006




 









 





SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT



THIS SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT (“Agreement”) is made as of August 28, 2006 (the
“Effective Date”) by and between HEWLETT-PACKARD COMPANY a Delaware Corporation (“HP”), and
Voltaire, Inc., a Maryland Corporation (“Licensor”).




     The parties hereby agree as follows:



1. DEFINITIONS





	 	1.1.	 	“Additional Program” means a software program added as a Program to
this Agreement after the Effective Date by an amendment to Exhibit A herein.
	 
	 	1.2.	 	“Complete Copy” means the Program which includes (i) a master copy of
the Program, (ii) all Documentation and technical manuals for the Program, and (iii)
all associated Sales Tools and Support and Build Tools, each in the form(s) and on the
media described in Exhibit A
	 
	 	1.3.	 	“Days” means calendar days unless otherwise specified,
	 
	 	1.4.	 	“Documentation” means the manuals and other documentation (in
electronic form or hardcopy, as the case may be) that Licensor has created for the
Program and any other existing documentation and information regarding the Program
which HP reasonably requests for evaluation and use in connection with such Program as
contemplated herein, including those items listed and described in Exhibit A
hereto. Documentation will be provided in English only and shall be of a type and
quality as the Program documentation that Licensor has previously provided under
Product Purchase Agreement # PRO10804-100804 between the parties, dated October 8, 2004
(the “Product Purchase Agreement”).
	 
	 	1.5.	 	“Enhancements” mean all present and future modifications, new features,
new functionalities, upgrades or other new versions of the Program or Documentation
(other than bug fixes, error corrections and minor updates) that are specifically
identified and added as to this Agreement after the Effective Date pursuant to Section
2.7.
	 
	 	1.6.	 	“Final Copy” means a Complete Copy of the Program that has been
reviewed and accepted by HP pursuant to Section 2.5 hereof.
	 
	 	1.7.	 	“HP Product(s)” means any host channel adaptor (“HCA”) card or on-board
HCA product manufactured or distributed by HP that are specifically identified in
Exhibit E and to which a Licensor-authorized Label (as defined in Exhibit
B) has been affixed (or which includes such other Licensor-authorized designation
as may be approved from time to time by the parties), including all supported
configurations and associated peripherals that runs or is compatible with (i) a
Microsoft operating system on an industry-standard computing platform or (ii) any other
operating environment or hardware platform as mutually agreed by the parties pursuant
to Section 2.7.
	 
	 	1.8.	 	“Marks” shall have the meaning ascribed to such term in Section 4.1.
	 
	 	1.9.	 	“Program” means the software program, in object code format, listed and
described on Exhibit A hereto, including all Updates and Enhancements thereto
that are provided by Licensor




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	 	 	 	pursuant to the terms of this Agreement. Program shall also include Additional
Programs.






	 	1.10.	 	“Intellectual Property Rights” means patent rights, copyrights, moral
rights, trade secret rights and other proprietary rights.
	 
	 	1.11.	 	“Licensed Materials” means, collectively, the Programs, Updates,
Enhancements, Specifications and Documentation, Sales Tools and Support and Build
Tools.
	 
	 	1.12.	 	“Source Code Program” means the code of a Program, including comments
and procedural code such as job control language, which is machine-readable and which
may be printed or displayed in a form readable and understandable by a computer
programmer of ordinary skill.
	 
	 	1.13.	 	“Sales Tools” means all applications, utilities or other materials (in
object code form) related to a Program that are used by Licensor in marketing the
Programs.
	 
	 	1.14.	 	“Support and Build Tools” means all applications, compilers,
utilities, listings, build tools or other materials (in object code form) related to a
program that are reasonably necessary to enable HP to exercise its rights under Section
3.1 hereof.
	 
	 	1.15.	 	“Updates” mean all present and future bug fixes, error corrections and
other minor updates of the Program or Documentation, but expressly not including any
Enhancement.
	 
	 	1.16.	 	“Addendum 1” means Addendum 1 to the Product Purchase Agreement, which
was executed by the parties on or about December 16, 2005.





2. DELIVERY AND ACCEPTANCE





	 	2.1.	 	Delivery. Licensor agrees to deliver to HP a Complete Copy of (i) each
Program listed in Exhibit A as of the Effective Date of this Agreement and (ii)
all Updates to the Program no later than the date on which the corresponding Updates
are delivered to any other of Licensor’s distributors or partners and (iii) all
Enhancements pursuant to any agreement under Section 2.7. HP will have the right to
test and evaluate the Program and Enhancement(s) (but not Updates) under the acceptance
procedure described in Section 2.5.
	 
	 	2.2.	 	New HP Products and Operating Systems. Subject to Section 2.7,
Licensor shall modify or otherwise adapt the Programs and Enhancements for use in
conjunction with revisions, releases and successors to the HP Products within the same
timeframe as Licensor modifies or otherwise adapts the programs and Enhancements for
use in conjunction with any other products (“Non HP Products”). Similarly, Licensor
shall modify or otherwise adapt the Programs and enhancements for use in conjunction
with revisions, releases and successors to operating environments or hardware platforms
for which Licensor offers the Programs and Enhancements.
	 
	 	2.3.	 	HP Product Loans. To assist Licensor in adapting the Programs and
Enhancements to the HP Products pursuant to Section 2.2, HP shall provide Licensor with
access to the HP Products specified in and in accordance with the terms of HP’s
standard Equipment Loan Agreement, separately executed by both parties. Except as
provided in this Section 2.3 and Section 6, Licensor shall bear all costs and expenses
with respect to performing its obligations under this Agreement.
	 
	 	2.4.	 	Program Performance. Licensor shall ensure the Programs and
Enhancements for use in




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	 	 	 	conjunction with HP Products executes with the same features, functionality, speed
and quality as Programs and Enhancements for use in conjunction with Non-HP
Products.






	 	2.5.	 	Acceptance.






	 	2.5.1.	 	Acceptance of Program. HP will have thirty (30) days from the date of
receipt of a Complete Copy of the Program to evaluate the Program for
conformity with the applicable Specifications, and either accept, return for
rework, or reject the Program. HP will be entitled to test and evaluate any
Program internally, by whatever means it deems appropriate and consistent with
Licensor’s rights in the Program and, subject to the terms of this Agreement,
Licensor hereby grants to HP the license set forth in Section 3.3, but only as
necessary for HP to perform its evaluation hereunder. Such licenses will
include the right of HP to use third party subcontractors to achieve the
foregoing solely for HP’s benefit, and subject to such third party executing
separate agreements containing substantially similar confidentiality
provisions; provided, HP agrees to be fully responsible and liable for the
conduct of its subcontractors. HP may only reject a Program if it does not
substantially comply with the then current version of the relevant
Specification; provided, no Program may be rejected for any noncompliance
attributable to any HP Product or other technology provided by HP. If HP
returns a Program for rework, Licensor agrees to use reasonable efforts to
correct the listed defects and resubmit the Program for re-evaluation under the
same acceptance procedure within seven (7) days or such longer period as agreed
to by the parties. In the event HP rejects a Program, HP will give Licensor
written notice (including, without limitation, by electronic mail) of rejection
stating the reasons for its unacceptability. If Licensor fails to correct the
rejected Program within a reasonable time, then (a) the parties may agree that
Licensor will have additional time to correct such Program or (b) without
further obligation, either party may eliminate such non-conforming Program from
this Agreement upon written notice to the other and this Agreement will
terminate with respect to that version of the Program and associated
Documentation. Until such time as HP shall have either accepted or rejected
the Program in accordance with this Section 2.5.1 and associated Documentation
in accordance with Section 2.5.2, Licensor shall not make generally available
to HP any version of a Program (other than the versions released as of the
Effective Date or released prior to the corresponding Additional Program being
added to this Agreement), and shall not permit any of its distributors or other
partners to so release.
	 
	 	2.5.2.	 	Acceptance of Documentation. HP will have thirty (30) days from the date of
receipt of a Complete Copy of the Program to evaluate the associated
Documentation, and either accept, return for rework, or revise the
Documentation pursuant to HP’s license under Section 3.3 below. If HP returns
Documentation for rework, Licensor agrees to correct the listed defects and
resubmit the Documentation for re-evaluation under the same acceptance
procedure within fourteen (14) days or such longer period as agreed to by the
parties.






	 	2.6.	 	Final Copy. Licensor agrees to deliver to HP a Final Copy of each
Program simultaneous with its general availability by Licensor.
	 
	 	2.7.	 	Enhancements. During the term of this Agreement, HP may request that
Licensor develop an Enhancement to any Program. In such event, the parties agree to
negotiate in good faith mutually agreeable terms and conditions of such implementation
(such as, for example, requirements specification, price and schedule applicable to
such Enhancement). The




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	 	 	 	definitive agreement, if any, regarding each Enhancement shall be set forth in a
separate writing executed by the parties.






	 	2.8.	 	Additional Programs. Licensor shall offer to HP an opportunity to
execute an amendment to Exhibit A to include as Additional Programs any and all of
Licensor’s future software products that would not otherwise constitute a Program or
Enhancement hereunder as of the Effective Date. Such offer shall be made at least six
(6) months prior to Licensor’s scheduled general availability date for such software
product and not later than any similar offer being made to any other distributor or
partner of Licensor. HP will inform Licensor within three (3) months of such offer
whether it intends to accept such offer and add Licensor’s software as an Additional
Program. If HP accepts such offer, then subject to negotiation of mutually agreeable
terms and conditions, Licensor and HP shall execute an amendment to Exhibit A to
include such software product as Additional Program hereunder.





3. RIGHTS GRANTED





During the term of this Agreement and subject to all terms and conditions herein (including
without limitation, payment of all fees), Licensor agrees to grant HP the rights and
licenses expressly provided in this Section 3. HP agrees to be fully responsible and liable
for the conduct of the HP Subsidiaries and HP-authorized distributors, resellers, OEM’s and
other third parties to which it grants sublicenses as permitted below.




	 	3.1.	 	License to the Program. Licensor hereby grants and agrees to grant to
HP, under all of Licensor’s Intellectual Property Rights embodied in each Program, a
non-exclusive, worldwide license to use, reproduce, display and distribute (both
directly and indirectly), import the Program solely in conjunction with HP Product(s).
Such license will include the right of HP to distribute through HP Subsidiaries and to
sublicense HP-authorized distributors, resellers, OEM’s and other third parties
(“Distribution Channels”) to achieve the foregoing.






	 	3.1.1.	 	The parties agree that (a) when HP or any Distribution Channel delivers an HP
Compute Cluster Server system, the Program may be distributed as a matter of
administrative convenience using the same media as HP uses to distribute other
non-Licensor software programs, (b) the distributed Program shall be deemed to
be “Unlicensed Software,” unless such HP Compute Cluster Server system includes
one (1) or more HP Products, (c) neither HP nor its Distribution Channels or
end user customers shall have any right or license to install, access,
reproduce, display or use any such Unlicensed Software and (d) HP shall make
the foregoing prohibitions expressly known to the end user customers in
writing, on CD or in other electronic form pursuant to the procedures set forth
in Exhibit F.






	 	3.2.	 	Escrow Agreement. At HP’s request, Licensor agrees to enter into a
source code escrow agreement, including terms in the form attached hereto as Exhibit D,
regarding the Source Code Programs, with Iron Mountain, Inc. or comparable independent
escrow agent as may be mutually agreed upon, to which agreement HP will be a named
beneficiary. HP agrees to pay all escrow fees payable to establish and maintain such
escrow.
	 
	 	3.3.	 	License for Demonstration and Evaluation. Licensor hereby grants and
agrees to grant HP, under all of Licensor’s Intellectual Property Rights embodied in
the Program, a non-exclusive, worldwide, royalty free license to use, reproduce,
display, import, and distribute the Program in whole or in part, for purposes of
testing and evaluation pursuant Section 2.5 (Acceptance),




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	 	 	 	support, customer evaluation, demonstration, marketing and promotional activities,
in each case solely in conjunction with HP Products. Such license will include the
right of HP to sublicense distributors, resellers, and other third parties to
achieve the foregoing.






	 	3.4.	 	License to the Documentation. Licensor hereby grants and agrees to
grant to HP, under all of Licensor’s Intellectual Property Rights embodied in the
Documentation, a non-exclusive, worldwide, royalty free license to use, reproduce,
display, translate, import, disclose to customers, distribute to customers, modify and
prepare derivative works or compilations of: (a) the Documentation; and (b)
modifications, derivative works and compilations based upon the Documentation for use
with a Program. These rights are exercisable in any medium. Such license will include
the right of HP to sublicense HP-authorized distributors, resellers, and other third
parties to achieve the foregoing. The right to modify and prepare derivative works and
compilations is granted solely for the purposes of (i) combining documentation of more
than one program or product, (ii) condensing Documentation, (iii) localizing
Documentation, (iv) formatting and preparing Documentation for user accessibility and
(v) updating Documentation as appropriate to account for changes to the associated
Program. HP shall be solely responsible for any error or misrepresentation of the
Programs arising out of or resulting from its translations, derivative works,
compilations, combinations, formatting, updates and other modifications.
	 
	 	3.5.	 	Sublicenses. HP agrees that it shall cause any distributor, reseller,
OEM or other third party that is sublicensed hereunder to comply with all of HP’s
license obligations hereunder (including without limitation, confidentiality). HP will
provide Licensor with a copy of its then current standard form of distributor, reseller
and OEM agreements upon the written request of Licensor.
	 
	 	3.6.	 	License to Photograph (Marketing Materials). Licensor hereby grants
and agrees to grant to HP under all intellectual property rights embodied in each
Program and associated Documentation, a non-exclusive, worldwide, royalty free license
to capture visual images of the program screen displays and packaging, the
Documentation and the CD-ROM, if any, and to use, reproduce, display, perform,
distribute, import and modify, on any media, such photographs and modifications and
images solely in connection with HP’s marketing and support of the Program and training
with respect to the Program. Such license will include the right of HP to sublicense
distributors, resellers, and other third parties to achieve the foregoing.
	 
	 	3.7.	 	License to Support and Build Tools. Licensor hereby grants and agrees
to grant to HP under all intellectual property rights embodied in the Support and Build
Tools for each Program a non-exclusive, worldwide, royalty free license to internally
use such Support and Build Tools (i) for customer support, evaluation, testing, and
benchmarking and (ii) to localize a Program.
	 
	 	3.8.	 	License to Sales Tools. Licensor hereby grants and agrees to grant to
HP under all intellectual property rights embodied in the Sales Tools for each Program
a non-exclusive, worldwide, royalty free license to internally use such Sales Tools
solely in conjunction with a Program.





4. COVENANTS AND RESTRICTIONS





	 	4.1.	 	Trademarks. Neither party is granted any ownership in or license to
the trademarks or trade names (collectively “Marks”) of the other party.
Notwithstanding the foregoing, Licensor acknowledges that HP may fairly and accurately
reference Licensor’s name and the name of each Program in the course of marketing and
distributing such Program.




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	 	4.2.	 	Ownership. Subject to the rights and licenses expressly granted to HP
hereunder, no other license is granted, no other use is permitted, and Licensor retains
all right, title and interest in the Programs and Documentation and other Licensed
Materials, including all copyrights and other Intellectual Property Rights.
	 
	 	4.3.	 	Copyright Notices. HP agrees that it will not remove any copyright
notices or proprietary markings of Licensor from a Program or Documentation. Licensor
and HP agree that a second HP copyright notice in HP’s standard copyright notice form
may be added to any authorized HP modification of Documentation.
	 
	 	4.4.	 	Restrictions. Except as otherwise expressly provided herein, HP will not
directly or indirectly (a) disassemble, decompile or reverse engineer or otherwise try
to discover any source code or underlying structures, ideas or algorithms of any
Program, Update or Enhancement or other Licensed Materials without prior written
authorization from Licensor, except and only to the extent these restrictions are
expressly prohibited by applicable statutory law and then only as necessary to
ascertain interfaces, (b) use any of Licensor’s Confidential Information to create any
software or documentation that is similar to any of the Licensed Material, (c)
encumber, sublicense, transfer, rent, lease or use the Licensed Materials for the
benefit of any third party (e.g., time-share or service bureau arrangement), (d) copy,
adapt, create derivative works of, translate, localize, port or otherwise modify any
Licensed Materials, (e) use the Licensed Materials or transfer, transmit, export or
re-export all or any part or any product thereof in violation of any export control
laws or regulations of the United States or any other relevant jurisdiction, (f)
reproduce or distribute copies of the Program except in accordance with the method
described in Exhibit B or (g) authorize any third party to engage in any of the
foregoing proscribed acts.
	 
	 	4.5.	 	Software License Terms. HP will be entitled to use its then current standard
form software license terms for licensing the Programs under this Agreement, provided
it contains terms and conditions at least as protective of Licensor (and its rights in
and to the Program) as the provisions of this Agreement and all restrictions,
disclaimers and limitations herein. Promptly upon request, HP will provide Licensor
with a copy of its then current sublicense agreement.
	 
	 	4.6.	 	 Third Party Code. Licensor has identified in Exhibit A any code from
another party, including open source or freeware (“Third Party Code”) contained in the
Program and will promptly inform HP of its intention to incorporate Third Party Code in
any Update or Enhancement of the Program within a reasonable time after completion of
any such agreement with such third party. At such time Licensor will identify the
specific technical details of the Third Party Code to be included.
	 
	 	4.7.	 	Third Party Requirements. The Software may operate or interface with
Third Party Code or other Third Party Technology that is identified in the
Documentation (“In-Licensed Code”) and which is licensed to Licensor from, and
owned by, third parties (“Third Party Licensors”). HP agrees that (a) it will
use In-Licensed Code in accordance with this Agreement and any other restrictions
specified in the applicable license set forth or referenced in the Documentation, (b)
no Third Party Licensor makes any representation or warranty to HP concerning the
In-Licensed Code or Software and (c) no Third Party Licensor will have any obligation
or liability to HP as a result of this Agreement or HP’s use of the In-Licensed Code.




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5. PROGRAM MAINTENANCE AND SUPPORT



Licensor shall provide HP with the maintenance and support for the Program set forth in this
Section. The fee for such maintenance and support is set forth in Exhibit B.





	 	5.1.	 	If Licensor learns of an error independently, Licensor shall initiate
corrective action and provide a response based on the Problem Severity Definitions and
Response requirements specified below.
	 
	 	5.2.	 	Licensor technical personnel shall be designated by Licensor to respond to
telephone inquiries by HP during normal TAC business hours in Boston, MA and Tel-Aviv,
Israel.
	 
	 	5.3.	 	HP shall have exclusive right to determine (i) the severity level of an error
and (ii) whether or not Licensor response is satisfactory in helping to solve the
customer’s problem.
	 
	 	5.4.	 	Upon HP’s reasonable request, Licensor shall provide on-site visits to customer
locations to assist HP in resolving Severity 1 customer issues. Licensor shall bear
all of its costs and expenses related to such on-site visits. HP shall reimburse
Licensor for Licensor’s out-of-pocket expenses incurred in connection therewith in the
event that Hp and Licensor determine the problem is caused by a product other than the
Program. Such reimbursement shall be subject to and paid in accordance with HP’s then
current internal business expense policy for reimbursing its employees for actual and
reasonable travel and related expenses.
	 
	 	5.5.	 	Within sixty (60) days following the execution of the Agreement, Licensor and
HP will develop a support delivery plan that will define the specific procedures for
call handling and problem escalations within the requirements of this Agreement.
	 
	 	5.6.	 	Problem Severity Definitions and Response Requirements. Service
requests to Licensor made by HP will be handled in accordance with the following
procedures. When HP requires back-up support from Licensor, HP will contact Licensor’s
engineering support organization which will accept responsibility for handling the call
according to the severity levels described below. For the purposes of this section,
“receipt” of a call by Licensor will be considered to have occurred when the HP
engineering organization has made contact with Licensor’s engineering support
organization or a representative thereof.






	 	5.6.1.	 	Severity 1 Definition. A “Severity 1” problem is a catastrophic
problem that may severely impact the customer’s ability to conduct business.
This may mean the customer’s systems and/or Program are down or not functioning
and no procedural work-around exists.






Response Requirements. Licensor’s support organization will respond
directly to the HP service delivery organization within one (1) hour
following receipt of the call from HP engineering. HP and Licensor will
develop an Action Plan within four (4) hours following receipt of the call.




Implementation. When working a Severity 1 problem, the objective is
to get the



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customer back on line by whatever means within twenty-four (24) hours and to
downgrade the problem severity accordingly. Efforts to isolate, diagnose,
and deliver a work-around or repair to a Severity 1 problem shall be
continuous (i.e., around-the-clock). Continuous phone contact and progress
updates are also expected. These progress updates should be according to
the Action Plan and not less than once every four (4) hours until the
problem severity is reduced. When the severity level has been changes to a
Severity 2 or Severity 3 (defined below), the appropriate guidelines should
be followed. Resources must be available on a twenty-four (24) hours by
seven (7) day basis (24x7) to respond to severity 1 cases.




	 	5.6.2.	 	Severity 2 Definition. A “Severity 2” problem is a high-impact
problem in which the customer’s operation is disrupted but there is capacity to
remain productive and maintain necessary business-level operations. The
problem may require a fix be installed on the customer’s system prior to the
next planned commercial release of the Program.






Response Requirements. Licensor’s engineering support organization
will respond to the HP engineering organization within two (2) hours
following receipt of the call from the HP engineering organization during
normal business hours, otherwise the next business day.




Implementation. Efforts to isolate, diagnose, and deliver a
work-around or repair to a Severity 2 problem shall be continuous during
business hours (Monday through Friday, 8 am — 5 pm). Specific
implementation should be agreed between HP and Licensor on a case-by-case
basis and documented in an Action Plan within one (1) business day of
receipt of the call by Licensor. The frequency that Licensor shall provide
status updates shall be twice per week or as mutually agreed. Resources may
need to be available after hours and/or weekends depending on the Action
Plan. The objective is to have a solution and/or fix to the customer within
an average of twenty (20) days.




	 	5.6.3.	 	Severity 3 Definition. A “Severity 3” problem is a medium-to-low
impact problem that involves partial loss of non-critical functionality. The
problem impairs some operations but allows the customer to continue to
function. This may be a minor issue with limited loss or no loss of
functionality or impact to the customer’s operation. This includes
documentation errors.






Response Requirements. Licensor’s support organization will respond
to the HP engineering organization within three (3) business days.




Implementation. When working a Severity 3 problem, the objective is
to get the customer a fix to the problem within thirty (30) days or a
statement describing the disposition of the problem. Action should be
appropriate to the nature of the escalation. Efforts to isolate and resolve
the problem shall be as agreed to in the Action Plan or a minimum of Monday
through Friday during normal business hours, continuous effort.




	 	5.6.4.	 	Severity 4 Definition. “Severity 4” will be assigned to general
usage questions,




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	 	 	 	recommendations for future product enhancements or modifications and to
calls that are passed to Licensor for information purposes. There is no
impact on the quality, performance or functionality of the Program.






Response Requirements. Licensor’s support organization will respond
in a manner appropriate to the nature of the escalated call.




Implementation. If HP’s sole reason for escalating a “Severity 4”
call is to submit a draft symptom/solution article for consideration by
Licensor, Licensor will respond to the submission and, if appropriate, will
provide a reviewed and edited copy of the submission and a recommendation
for its disposition.




	 	5.7.	 	Survival of Licensor’s Support Obligations. Notwithstanding any
termination of this Agreement, upon HP’s written request and subject to payment of
applicable support fees, Licensor agrees to support each Program distributed by HP, as
set forth herein, for at least five (5) years after such Program is last made available
to HP for distribution hereunder. Such support shall be limited to supporting the
version of the Program that was last delivered to HP prior to termination of this
Agreement, and shall not require Licensor to provide Enhancements or Updates (other
than bug fixes and error corrections) to such Program following termination of this
Agreement, unless otherwise agreed by the parties in writing.
	 
	 	5.8.	 	Technical Assistance and Training. Licensor agrees to provide a
maximum of two training sessions per year to HP, at no charge (and any additional
training shall be at Licensor’s then current rates), the following technical assistance
and training:






	 	5.8.1.	 	Such technical assistance and training to HP personnel as may be reasonably
requested in order for HP to use, copy, distribute, support, build and maintain
the Program as contemplated herein.
	 
	 	5.8.2.	 	Such engineering training (ie., train the trainer) for a reasonable number of
HP personnel.
	 
	 	5.8.3.	 	Such technical assistance and training to HP personnel and, at HP’s election,
HP resellers and distributors, as may be reasonable requested in order for HP
and its resellers and distributors to effectively market and sell Programs and
competently use the Sales Tools as contemplated herein; and
	 
	 	5.8.4.	 	Such engineering training to HP personnel as may be reasonable requested in
order for HP to effectively use the Support and build Tools as contemplated
herein.






Unless otherwise agreed by the parties, all such training shall take place at HP
facilities designated by HP.




	 	5.9.	 	Escrow Provision. Failure of Supplier to enter into and comply with
the terms of the escrow agreement as described in Section 3.2 upon HP’s request shall
be grounds for HP’s termination of this Agreement.




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6. PAYMENT





	 	6.1.	 	Payment. HP agrees to pay Licensor in accordance with Exhibit
B. Unless specified otherwise, all amounts shall be paid in US dollars within the
period designated in Exhibit B.
	 
	 	6.2.	 	Fee Warranty. Licensor warrants that the amounts payable hereunder by
HP with respect to any Program are no greater than those for any other similarly
situated licensee for similar quantities of the Program on similar hardware that
correspond to such Program, and Licensor agrees to pass on to HP the lowest rate or
price it has given to any other licensee, commencing effectively on the date it so
grants the lower rate or price to any other licensee.
	 
	 	6.3.	 	Taxes. HP will be solely responsible for taxes on amounts paid to
Licensor by HP under this Agreement, including all state and local use, sales,
withholding, property (ad valorem) and similar taxes.
	 
	 	6.4.	 	Audit. Upon fifteen (15) days prior written notice to HP, Licensor
may, at its own expense, appoint a nationally recognized independent auditor, to whom
HP has no reasonable objection, to audit and examine such records at HP’s offices
during normal business hours, solely for the purpose of confirming the accuracy of
royalty payments hereunder. Such audit may be made no more often than once every
twelve (12) calendar month period. In the event that an audit reveals an overpayment
by HP, Licensor agrees to promptly refund or credit HP for such overpaid amount. In
the event that such audit reveals an underpayment by HP, HP agrees to promptly pay
Licensor the amount of such underpayment. This right of audit will be subject to
Licensor’s auditor executing HP’s standard Confidential Disclosure Agreement.
	 
	 	6.5.	 	Records. During the term of this Agreement (and thereafter during any
period when Program support is provided), and for one (1) year thereafter, HP agrees to
keep and maintain true, accurate and complete records and accounts of all Programs
distributed by it and its other activities hereunder, and to make such records
reasonably available for inspection by Licensor in accord with Section 6.4.





7. WARRANTY AND INTELLECTUAL PROPERTY PROTECTION





	 	7.1.	 	General Warranty. Licensor warrants to HP that it has full power and
authority to grant HP the rights granted herein, that it has obtained the required
rights for HP to any Third Party Code included in each Program, and that, as of the
Effective Date, each Program and accompanying Documentation is free of any and all
restrictions, settlements, judgments or adverse claims asserted in writing.
	 
	 	7.2.	 	Program Warranty. Licensor warrants to HP that each unaltered Program
referred to herein will operate in accordance with and substantially conform to the
Documentation for ninety (90) days after the Effective Date.
	 
	 	7.3.	 	No Infringement Warranty. Licensor warrants that each Program,
accompanying Documentation, trademarks, copyrights and trade names referred to in this
Agreement do not violate or infringe any patent, copyright, trademark, trade secret or
other proprietary right of any third party, and that Licensor is not aware of any facts
upon which such a claim for infringement could be based. Licensor will promptly notify
HP if it becomes aware of any claim or any facts upon which a claim could be based.




10









 












	 	7.4.	 	Intellectual Property Protection.






	 	7.4.1.	 	Licensor will, at HP’s option, indemnify, defend and hold harmless HP, its
affiliates, subsidiaries, permitted assigns, subcontractors, distributors and
customers from any claim, suit, or proceeding alleging that the Program, or any
combination of a Program with an HP Product, or any Documentation, or any part
thereof, or any Update provided as part of Licensor’s support services
furnished by Licensor under this Agreement constitutes an infringement of any
third party’s patent, copyright, trademark, trade name, other proprietary
right, or unauthorized trade secret use. Without limiting the generality of
the foregoing, Licensor will pay all claims, liabilities, losses, damages,
judgments, awards, costs and expenses including reasonable attorneys’ fees,
expert witness fees and bonds incurred with respect to any such claim, suit, or
proceeding and will pay any award in connection with, arising from or with
respect to any such claim, suit, or proceeding or agreed to in any settlement
of that claim, suit, or proceeding.
	 
	 	7.4.2.	 	In case the Program or Documentation or any part thereof in such suit is held
to constitute an infringement and its use is enjoined, or is otherwise likely
to become the subject of any injunction preventing its use as contemplated
herein, Licensor will, at its own expense and at its option (i) procure for HP
and its customers the right to continue use of the Program or Documentation as
contemplated hereunder, or (ii) if applicable, replace the same with a
non-infringing program and documentation of equivalent function and
performance, or (iii) modify them so they become non-infringing without
detracting from function or performance, or (iv) terminate this Agreement upon
written notice to HP.
	 
	 	7.4.3.	 	Licensor’s obligations hereunder are expressly conditioned on the
requirements that HP will give Licensor prompt written notice of any such claim
or action, and will give Licensor the authority, cooperation, information, and
reasonable assistance (at Licensor’s expense) necessary to defend or settle the
claim. If Licensor does not diligently pursue resolution of the claim nor
provide HP with reasonable assurances that it will diligently pursue
resolution, then HP may, without in any way limiting its other rights and
remedies under this Section 7.4, defend such claim or action and collect all
reasonable costs of doing so from Licensor (except that Licensor’s prior
written approval shall be required for any settlement that requires Licensor to
admit any wrongdoing or results in any ongoing liability to Licensor).
	 
	 	7.4.4.	 	Notwithstanding the foregoing, Licensor will have no responsibility for
claims to the extent arising from (i) unauthorized modifications of the Program
made by HP (or any third party) if such claim would not have arisen but for
such modifications, or (ii) unauthorized combination or use of the Program with
products not contemplated herein if such claim would not have arisen but for
such combination or use or (iii) any use of a Program not strictly in accord
with this Agreement, or in an application or environment or on a platform or
with devices for which it was not designed or contemplated, or (iv) HP’s
continuing allegedly infringing activity after being notified thereof or its
continuing use of any allegedly infringing version of the Program after being
provided modifications that would have avoided the alleged infringement.
	 
	 	7.4.5.	 	THIS SECTION 7.4 STATES THE ENTIRE LIABILITY OF LICENSOR AND HP’S EXCLUSIVE
REMEDY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY
RIGHTS BY THE PROGRAMS OR DOCUMENTATION OR ANY OTHER LICENSED MATERIALS, OR ANY
PART THEREOF, OR BY THEIR USE OR OPERATION




11









 






	 	 	 	(INCLUDING WITHOUT LIMITATION, ANY WARRANTY CLAIM UNDER SECTION 7.1, 7.3 OR
7.5).






	 	7.5.	 	Ownership; Right to Grant Licenses. Licensor is the exclusive owner of
all right, title and interest in and to all patents, copyrights, trademarks and other
intellectual property rights that protect any of the Programs, (including Enhancements
and Additional Programs), and Documentation, Sales tools or support and Build Tools
that either (exist as of the Effective Date of this Agreement or (ii) are added to
Exhibit A in this Agreement after the date hereof, in each case free and clear
of any and all liens or other adverse claims or any restriction or limitation that
affects Licensor’s ability to grant licenses of the scope and nature granted by
Licensor to HP under this Agreement other than the technology licensed from third
parties that is either (1) identified in Exhibit A hereto as of the date hereof
or (2) is identified in writing subsequent to the date hereof and contemporaneously
with the adding of the relevant Enhancement, Additional Program, Documentation, Sales
Tool or Support and Build Tool to Exhibit A (“Third Party Technology”).
Licensor has the requisite right, power and authority to grant sublicenses to the Third
Party Technology, without the need to obtain the consent of any licensor of any such
Third Party Technology.
	 
	 	7.6.	 	Warranty Exclusions. The warranties set forth in this Section 7 will
not apply to any Program to the extent it (i) has been improperly installed, or has
been repaired, altered or otherwise modified (other than by Licensor or its authorized
subcontractors), (ii) has been subjected to misuse, abuse, negligence or accident,
(iii) has been used in a manner contrary to the Specifications, Licensor’s written
instructions, the Documentation or industry standard practice, or (iv) implements a
design stipulated by HP.
	 
	 	7.7.	 	Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LICENSOR
MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING ANY PROGRAM OR OTHER
LICENSED MATERIAL OR SERVICE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY
REGARDING ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE OR ANY
WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.





8. TERM AND TERMINATION





	 	8.1.	 	Termination. This Agreement shall commence on the Effective Date and
continue in effect for an initial term of 2 years (“Initial Term”), unless
earlier terminated as provided herein. The Agreement will be extended automatically
for additional terms of 1 year at the end of the Initial Term and each renewal term.
This Agreement may only be terminated as follows:






	 	8.1.1.	 	HP and Licensor may jointly agree in writing to terminate this Agreement.
	 
	 	8.1.2.	 	Breach. Either party may terminate this Agreement effective upon
written notice to the other if the other party violates any material covenant,
agreement, representation or warranty contained herein or defaults or fails to
perform any of its material obligations or agreements hereunder, which
violation, default or failure is not cured within thirty (30) days after notice
thereof from the non-defaulting party (a) detailing the default or breach and
(b) stating its intention to terminate this Agreement.
	 
	 	8.1.3.	 	Insolvency, Bankruptcy. Either party may terminate this Agreement in
the event the other party (without a successor) ceases conducting business in
the normal course, becomes insolvent, makes a general assignment for the
benefit of creditors, (except




12









 






	 	 	 	that HP shall be permitted in its receivables to financial institutions),
suffers or permits the appointment of a receiver for its business or assets
or shall avail itself of, or becomes subject to, any proceeding under the
Federal Bankruptcy Act or any other statute of any state relating to
insolvency or the protection of rights of creditors that is not dismissed
within 90 days after filing.






	 	8.1.4.	 	Change of Control. Licensor shall provide HP with prompt written
notice of any Change of Control (as defined below). HP may terminate this
Agreement effective upon written notice to Licensor that is received by
Licensor within 30 days after HP receives Licensor’s notice regarding the
occurrence of a Change of Control of Licensor. For purposes of this Agreement,
the term “Change of Control” shall mean consummation of (i) the acquisition by
an individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act( of 50% or more of either (a) the then outstanding
shares of common stock of Licensor or (b) the combined voting power of the then
outstanding voting securities of Licensor entitled to vote generally n the
election of directors, or (ii) the direct or indirect (by merger,
reorganization, consolidation or otherwise) sale of all or substantially all of
the assets of Licensor or of the business unit of Licensor primarily
responsible for the development and maintenance of the Programs; provided,
Change of Control shall not apply in the case of any equity financing
transaction in which the entity providing the financing is not controlled by or
under common control with an entity that manufactures, markets or sells
computer hardware or software.
	 
	 	8.1.5.	 	After the Initial Term, either party may terminate this Agreement, for any
reason or no reason, upon at least sixty (60) days prior written notice to the
other party.






	 	8.2.	 	Effect of Termination and Survival. Notwithstanding any termination of
this Agreement, all licenses properly granted to end users for use of any Program will
survive so long as such end user complies with such license. Upon any expiration or
termination of this Agreement, all rights, obligations and licenses of the parties
shall cease, except that (a) all obligations that accrued prior to the effective date
of termination (including without limitation, payment obligations) and any remedies for
breach of this Agreement shall survive any termination or expiration of this Agreement,
(b) HP shall use reasonable commercial control to promptly stop promoting,
demonstrating and procuring orders for Programs, and stop taking any other action or
making any representation from which it might be inferred that any relationship exists
between Licensor and HP (but not act in any way to damage the reputation of Licensor or
any Licensed Material), and (c) promptly after any termination of this Agreement, the
receiving party shall return all of the other’s tangible Confidential Information,
permanently erase all Confidential Information from any storage media and destroy all
information, records and materials developed therefrom. In addition, the provisions of
this Agreement regarding Support (Section 5.7), Warranty and Intellectual Property
Protection (Section 7), Limitation of Liability (Section 9), Confidentiality (Section
10) and Miscellaneous clauses (Section 11) and this Section 8 shall survive any
termination or expiration of this Agreement.





9. LIMITATION OF LIABILITY





	 	9.1.	 	EXCEPT FOR BREACH OF CONFIDENTIALITY OR THE SCOPE OF ANY LICENSE BY EITHER
PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF BUSINESS,
REVENUES, PROFITS






13










 






OR GOODWILL), LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING
SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES. EXCEPT FOR BREACH OF CONFIDENTIALITY OR THE SCOPE OF ANY
LICENSE BY EITHER PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR AGGREGATE DAMAGES
IN EXCESS OF AMOUNTS PAID AND PAYABLE TO IT HEREUNDER (IN THE CASE OF LICENSOR) OR AMOUNTS PAID AND
PAYABLE BY IT HEREUNDER (IN THE CASE OF HP) FOR THE PROGRAM OR OTHER LICENSED MATERIAL OR SERVICE
GIVING RISE TO SUCH DAMAGES, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER BASED ON
CONTRACT, TORT, WARRANTY, STRICT LIABILITY OR OTHER LEGAL THEORY). THESE LIMITATIONS ARE
INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE
OF ANY REMEDY PROVIDED HEREIN. NOTHWITHSTANDING THE ABOVE, LICENSOR WILL BE RESPONSIBLE FOR ANY
AND ALL DAMAGES AND COSTS OF ANY KIND INCLUDED IN AN AWARD OR SETTLEMENT OF A THIRD PARTY CLAIM
UNDER SECTION 7.4 ABOVE, AND HP WILL BE RESPONSIBLE FOR THE PAYMENT OF ANY AND ALL FEES REQUIRED TO
BE PAID BY HP UNDER SECTION 6.1 ABOVE.




	10.	 	CONFIDENTIAL INFORMATION






	 	10.1.	 	Programs. The Program in object code form and related Documentation
provided to HP hereunder are deemed non-confidential; provided, however, HP shall
restrict access, use and disclosure of such Licensed Materials in accordance with its
obligations under Sections 3.5 and 4.5.
	 
	 	10.2.	 	Confidential Information. During the term of this Agreement, either
party may receive or have access to technical information, including without limitation
source code, as well as information about product plans and strategies, promotions,
customers, vendors and related non-technical business and financial information which
the disclosing party considers to be confidential and which is marked as confidential
at the time or disclosure or which, if disclosed orally, is identified as confidential
at the time of disclosure and is followed within thirty (30) days of disclosure with a
written memorandum so stating to the receiving party’s Designated Recipient for Notice
or which a reasonable person would understand to be proprietary or confidential
“(Confidential Information”). Confidential Information will be used only for the
purposes of this Agreement and only by those employees or subcontractors of the
receiving party who have a need to know such information for purposes related to this
Agreement and who have executed separate agreements containing substantially similar
confidentiality provisions.
	 
	 	10.3.	 	Protection of Confidential Information. Except for the specific
rights granted by this Agreement, the receiving party shall not copy or use any of the
other’s Confidential Information without its written consent. The receiving party will
protect any such Confidential Information of the disclosing party by using the same
degree of care, but no less than a reasonable degree of care, to prevent the
unauthorized use, dissemination or publication of the Confidential Information as the
receiving party uses to protect its own confidential information of like nature for a
period of five (5) years from the date of disclosure, unless otherwise provided in this
Agreement. The receiving party will provide reasonable prior notice to the disclosing
party and will request a protective order if the receiving party is required to reveal
the Confidential Information under a subpoena, court order or other operation of law.
The foregoing restriction will not apply to any information 




14









 






	 	 	 	which is (i) was in the receiving party’s rightful possession without restriction prior to receipt from the
disclosing party, (ii) independently developed or learned by the receiving party
without reliance on such information, (iii) is publicly known without breach of this
Agreement or readily ascertainable by proper means, (iv) rightfully received from a
third party without a duty of confidentiality, (v) is disclosed by the disclosing
party to a third party without a duty of confidentiality on the third party (vi)
disclosed under operation of law, or (vii) disclosed by the receiving party with the
disclosing party’s prior written approval.






	 	10.4.	 	Licensor Source Code. HP agrees to treat any Source Code programs
provided by Licensor hereunder as Confidential Information of Licensor under this
Section 10 at all times during and following termination or expiration of this
Agreement.
	 
	 	10.5.	 	Licensor understands that, subject to the restrictions on use and disclosure
of Confidential Information under this Agreement HP designs, develops and acquires
hardware and software for use with its own computer system products, and that existing
or planned hardware and software independently developed or acquired by HP may contain
ideas and concepts similar or identical to those contained in Licensor’s Programs,
Documentation, Sales Tools or Support and Build Tools. Licensor agrees that, subject
to the restrictions on use and disclosure of Confidential Information under this
Agreement, entering into this Agreement shall not preclude HP, in any way, from using
HP’s own ideas and concepts to develop or acquire similar hardware or software for any
purpose.






	11.	 	MISCELLANEOUS CLAUSES






	 	11.1.	 	Notices. All notices to be given under this Agreement must be in
writing addressed to the receiving party’s designated recipient specified in
Exhibit C. Notices are validly given upon the earlier of confirmed receipt by
the receiving party or three (3) days after dispatch by courier or certified mail,
postage prepaid, properly addressed to the receiving party. Notice may also be
delivered by telefax and will be validly given upon oral or written confirmation of
receipt. Either party may change its address for purposes of notice by giving notice to
the other party in accordance with these provisions.
	 
	 	11.2.	 	Counterparts. This Agreement may be executed by facsimile and in
counterparts, each of which will be deemed an original and together which shall
constitute one and the same instrument.
	 
	 	11.3.	 	Independent Contractors. The relationship of the parties established
under this Agreement is that of independent contractors and neither party is a partner,
employee, agent or joint venture of or with the other.
	 
	 	11.4.	 	Assignment. Neither this Agreement nor any part hereof may be
assigned by either party (other than the right to receive payments) without the other
party’s prior written consent and any attempted assignment is void. Notwithstanding
the foregoing, either party may assign or transfer this Agreement without such consent
as a consequence of a merger, acquisition, consolidation, reorganization, or sale of
substantially all of its assets or of the business to which this Agreement pertains.
This Agreement shall be binding upon, and inure to the benefit of, the successors,
representatives and permitted assigns of the parties.
	 
	 	11.5.	 	No Waiver. The waiver of any term, condition, or provision of this
Agreement must be in writing and signed by an authorized representative of the waiving
party. Any such waiver will not be construed as a waiver of any other term, condition,
or provision except as provided 




15









 






	 	 	 	 in writing, nor as a waiver of any subsequent breach of the same term, condition, or provision.






	 	11.6.	 	Export Control. The parties agree to comply with all applicable
United States laws and regulations which may govern the export of Program abroad,
including the Export Administration Act of 1979, as amended, any successor legislation,
and the Export Administration Regulations issued by the Department of Commerce.
	 
	 	11.7.	 	Headings. The Section headings used in this Agreement are for
convenience of reference only. They will not limit or extend the meaning of any
provision of this Agreement, and will not be relevant in interpreting any provision of
this Agreement.
	 
	 	11.8.	 	No Publication. neither party may publicize or disclose to any third
party, without the written consent of the other party, the existence or terms of this
Agreement; provided, either party may, subject to obligations of confidentiality,
disclose this Agreement in connection with any financing or due diligence inquiry.
Without limiting the generality of the foregoing sentence, no press releases may be
made without the mutual written consent of each party.
	 
	 	11.9.	 	Severability. If any provision in this Agreement is held invalid or
unenforceable by a body of competent jurisdiction, such provision will be construed,
limited or, if necessary, severed to the extent necessary to eliminate such invalidity
or unenforceability. The parties agree to negotiate in good faith a valid, enforceable
substituted provision that most nearly effects the parties’ original intent in entering
into this Agreement or to provide an equitable adjustment in the event no such
provision can be added. The other provisions of this Agreement will remain in full
force and effect.
	 
	 	11.10.	 	No Use Obligation. Except as expressly provided herein and subject to the
terms and conditions herein, HP may in its sole discretion decide whether or not to use
or distribute or sell any Program as it deems appropriate. Nothing in this Agreement
shall be construed or interpreted as placing a “Best efforts” standard upon HP with
respect to the use and distribution of any Program.
	 
	 	11.11.	 	Force Majeure. Non-performance of either party will be excused to the extent
that performance is rendered impossible by strike, fire, flood, governmental acts or
orders or restrictions, acts of terrorism, or other similar reason where failure to
perform is beyond the control and not caused by the negligence of the non-performing
party, provided that the non-performing party gives prompt notice of such conditions to
the other party and makes all reasonable efforts to perform.
	 
	 	11.12.	 	No Third Party Beneficiaries. Unless otherwise expressly provided, no
provisions of this Agreement are intended or shall be construed to confer upon or give
to any person entity other than Licensor and HP any rights, remedies or other benefits
under or by reason of this Agreement.
	 
	 	11.13.	 	Entire Agreement. This Agreement comprises the entire understanding between
the parties with respect to its subject matters and supersedes any previous
communications, representations, or agreements, whether oral or written. For purposes
of construction, this Agreement will be deemed to have been drafted by both parties.
No modification of this Agreement will be binding on either party unless in writing and
signed by an authorized representative of each party.
	 
	 	11.14.	 	Governing Law. This Agreement will be governed in all respects by the laws
of the Commonwealth of Massachusetts without reference to any choice of laws
provisions. The 




16









 






	 	 	 	Licensor consents to the jurisdiction of the federal and state courts within the Commonwealth of Massachusetts, the United States of America. Both parties
hereby waive any applications of the United Nations Convention on Contracts for the International Sale of Goods
(as promulgated in 1980 and any successor or subsequent conventions) with respect to
the performance or interpretations of this Agreement.






	 	11.15.	 	Counterparts. This Agreement may be executed by facsimile and in
counterparts, each of which will be deemed an original and together which shall
constitute one and the same instrument.
	 
	 	11.16.	 	Government License. If any user of the Programs or Documentation is a
department, agency or other entity of the United States Government, the use,
duplication, reproduction, modification, release, disclosure or transfer of the
Programs and Documentation is restricted in accordance with FAR 12.212 for civilian
agencies and DFAR 227.7202 for military agencies. The Programs are commercial computer
software and the Documentation is commercial computer software documentation, and their
use is further restricted in accordance with the terms of this Agreement.
	 
	 	11.17.	 	Exhibits. Each Exhibit attached to this Agreement is deemed a part of this
Agreement and incorporated herein wherever reference to it is made.






	 	11.17.1.	 	Exhibit A: Description of Program and Program Documentation, Form
and Media of Program and Documentation.
	 
	 	11.17.2.	 	Exhibit B: Pricing
	 
	 	11.17.3.	 	Exhibit C: Relationship and Account Managers, Designated Recipient
for Notice
	 
	 	11.17.4.	 	Exhibit D: Certain Escrow Terms
	 
	 	11.17.5.	 	Exhibit E: HP Products
	 
	 	11.17.6.	 	Exhibit F: Section 3.1.1 Compute Cluster Server System “Unlicensed
Software” Notification Procedure






	 	11.18.	 	Termination of Addendum 1. The parties agree that, immediately upon
execution of this Agreement, Addendum 1 and all of each party’s respective rights,
obligations and licenses thereunder are hereby terminated and of no further effect, and
that from and after the Effective Date of this Agreement, all of their respective
rights, obligations and licenses regarding the Programs and all related subject matter
shall be effective only as specifically set forth in this Agreement.




17









 











Agreed:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	HEWLETT-PACKARD COMPANY	 	LICENSOR	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/
Shaun Smith 	 	By:	 	/s/ Ronnie Kenneth	 	 
	 

	 	Print Name
	 	SHAUN
SMITH	 	 	 	Print Name:
	 	KENNETH RONNIE
	 	 
	 

	 	Title:
	 	PROCUREMENT
DIRECTOR — BCS	 	 	 	Title:
	 	CEO	 	 






18









 






EXHIBIT A




LICENSED PROGRAMS




DESCRIPTION OF PROGRAM AND DOCUMENTATION




	 	 	 
	     Program:

	 	1. Gridstack for Windows Compute Cluster Server
	 
	 

	 	2. Voltaire GridStack, Ver. 3.4 (Red Hat Advanced server 4 (RH EL4) for
IA32, IA64 and x86_64 Suse SLES 9 for IA32, IA64 and x86_64)






	 	 	 
	     Documentation:

	 	To include but not be limited to installation instructions, release notes
(as available), User/developer documents (as available), on-line documents, schematics,
and any/all documentation (as available) required to support HP customers.






     Sales Tools: N/A



     Support and Build Tools: N/A



FORM AND MEDIA FOR PROGRAM AND DOCUMENTATION




     Program Form/Media: Electronic



     Documentation Form/Media: Electronic



     Sales Tools Form/Media: N/A



     Support and Build Tools Form/Media: N/A



THIRD PARTY CODE





	1.	 	Gridstack for Windows Compute Cluster Server 
	 
	•	 	OpenFabrics software is developed by OpenFabrics alliance. OpenFabrics source code for
Windows is distributed under the and OpenIB BSD. Information about the OpenFabrics could be
found at http://www.openib.org/license.html
	 
	2.	 	Voltaire GridStack, Ver. 3.4





HCA host stack:





	•	 	The LINUX operating system is a free software program subject to
the GNU General Public License and its terms. A copy of such
license can be found at www.gnu.org/licenses or obtained from
Voltaire upon request.






	•	 	The MVAPICH software was developed by The Ohio State University’s
Network-Based Computing Laboratory (NBCL) headed by Professor
Dhabaleswar K. Panda. Copyright (c) 2002 The Ohio State




19









 






	 	 	University. All rights reserved. The use of such software is subject to the
terms of a Copyright Agreement, a copy of can be found at:
http://nowlab.cis.ohio-state.edu/projects/mpi-iba.






	•	 	MPICH is a freely available, portable implementation
of MPI. Copyright in MPICH have been asserted by the
University of Chicago and the Mississippi State
University (c) 1993. The use of such software is
subject to the terms of a copyright and disclaimer
notice, a copy of can be found at:
http://nowlab.cis.ohio-state.edu/projects/mpi-iba/LICE
NSE.mvapich2.TXT






	•	 	The uDapl and kDapl software was developed by the DAT
collaborative. The DAT Collaborative is an industry
group that was created to define and submit for
standardization a set of transport-independent,
platform-independent Application Programming
Interfaces that exploit the RDMA (remote direct
memory access) capabilities of next-generation
interconnect technologies such as InfiniBand, and
iWARP. The code is being provided under one of the
available licensing scheme — CPL (Common Public
License 1.0), GPL ( GNU general public license) or
BSD license. Information about the Dapl code
licensing could be found at
http://cvs.sourceforge.net/viewcvs.py/dapl/




The following rights would be applicable once Voltaire starts using the OpenIb source code as the
base for the stack development





	•	 	OpenFabrics software is developed by OpenFabrics alliance. OpenFabrics source code on
Linux is distributed under the GPL and OpenIB BSD. Information about the OpenFabrics could be
found at http://www.openib.org/license.html




20









 











Exhibit B




PRICING




Per Copy Fee.





HP agrees to pay Licensor a royalty in the amount of * USD for each copy of the Program
(excluding Unlicensed Software, as defined in Section 3.1 of the Agreement) that HP (or any
of its affiliates, distributors or other sublicensees) uses internally or distributes to an
end user for use in conjunction with one (1) HP Product (“Per Copy Fee”). Such Per Copy Fee
will include the right to reproduce and distribute associated Documentation.
Notwithstanding any other provision of this Agreement, no fee will be due for any Program
used by HP internally for reasonable end user support purposes.




HP’s requirement to pay the Per Copy Fee will include distribution to HP customers who
purchase an Infiniband-based cluster from HP with no operating system purchased at the time
of the initial sale.



Payment.





Per Copy Fees will accrue upon distribution of any copy of the Program for use with an HP
Product internally or by an end user. All accrued Per Copy Fees will be paid by HP to
Licensor within * ( * ) days after the end of each HP fiscal quarter, which ends on the
last day of each January, April, July and October. Payments will be accompanied by a report
stating the number of copies of the Program distributed in the relevant quarter and the
calculation for the royalty payment.




Payment by HP will be triggered by sale of, or any other distribution of, any HP Product and
facilitated by HP’s Royalty Administration organization.



Support Fees.





Subject to Licensor’s performance of its obligations under Section 5, including Section 5.7,
of this Agreement, Licensor shall be entitled to an annual support fee (herein, the
“Support Fee”) equal to * ( * ) percent of the then current applicable Per Copy Fee for
the associated Program for each HP customer covered by an HP service agreement. Support
Fees shall accrue monthly at the rate of 1/12th of the annual Support Fee for each such
service agreement in effect. Support Fees accrued during each HP fiscal quarter shall be
paid to Licensor within * ( * ) days after the end of each HP fiscal quarter. HP shall
provide Licensor with a statement regarding Support Fees for the subject quarter
simultaneous with making such payments. Support Fees shall be reduced by the amount of any
tax required to be withheld by any government or governmental agency. In the event that HP
makes any payment without deduction of withholding tax, and is subsequently required to pay
such tax, Licensor shall reimburse HP in the amount of such tax.



Copy/Distribution Restrictions.




Licensor will provide authorized license labels (“Labels”) of its design to the HP
designated source of the HCA’s. Any special requirements to be imposed on the HCA source,
for example, establishing and maintaining logs of quantity of Labels received and used, will
be documented by Licensor and communicated to the HCA source by HP.



21









 







HP customers will be directed to the HP Support website and asked to enter the HCA part
number in order to download the Licensor’s program. HP will be responsible for providing
its customers with the correct HCA part number.



22









 





EXHIBIT C




ACCOUNT/RELATIONSHIP MANAGERS




	 	 	 
	HP
	 	Licensor
	 	 	 
	Elaine Carroll
	 	Garrett Van Siclen
	 	 	 
	Commodity Manager
	 	Corporate Account Executive
	 	 	 
	Hewlett Packard
	 	Voltaire, Inc.
	 	 	 
	200 Forest Street
	 	6 Fortune Drive, 3rd Floor
	 	 	 
	Marlboro, MA 01752
	 	Billerica, MA 01821-3917
	 	 	 
	Tel: (508) 467-9815
	 	Tel: (978) 439-5425
	 	 	 
	Fax: (508) 467-3785
	 	Fax: (978) 439-5401






DESIGNATED RECIPIENT FOR NOTICE




	 	 	 
	HP
	 	Licensor
	 	 	 
	Mark Miller
	 	Mark Favreau
	 	 	 
	Product Manager
	 	President
	 	 	 
	Hewlett Packard
	 	Voltaire, Inc.
	 	 	 
	200 Forest Street
	 	6 Fortune Drive, 3rd Floor
	 	 	 
	Marlboro, MA 01752
	 	Billerica, MA 01821-3917
	 	 	 
	Tel: (508) 467-1671
	 	Tel: (978) 439-5454
	 	 	 
	Fax: (508) 467-3785
	 	Fax: (978) 439-5401






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Exhibit D




Certain Escrow Terms



1. Release Conditions. A release of the Source Code Program under the escrow agreement may be
triggered if one of the following conditions exists: Licensor fails to provide support and
maintenance services for the applicable Program in accordance with the terms of Section 5 of this
Agreement and such failure has not been cured within thirty (30) days after written notice thereof
by HP; or other than in the case when Licensor is a debtor-in-possession, a receiver or trustee in
bankruptcy is appointed for Licensor or its property, Licensor makes a general assignment for the
benefit of its creditors or Licensor commences, or has commenced against it, proceedings under any
bankruptcy, insolvency, or debtor’s relief law, which proceedings are not dismissed within ninety
(90) days.



2. License. In the event that the Source Code Program is delivered to HP in accordance with and
subject to the terms of the escrow agreement, Licensor will agree to grant HP a nonexclusive,
nontransferable license to use the Source Code Program internally for the sole purpose of
correcting errors in the Program, and distributing such corrections (in executable form only) to
HP’s customers for their use only with the HP Products with which the applicable Program was
delivered to the customer. HP may exercise such license rights during the then current term of
this Agreement and thereafter only so long as Licensor would be obligated to provide support
services for the Program hereunder; provided, such license rights shall terminate upon Licensor’s
written notice which reasonably demonstrates that the release condition that gave rise to the
release of the Source Code Program has been remedied and that Licensor or its successor is capable
of providing support services for the Program in accordance with the terms of this Agreement HP
agrees that it will maintain the Source Code Program (and all confidential or proprietary
information embodied therein) in strict confidence and that its license to possess and use the
Source Code Program does not include any right to disclose, market, sublicense or distribute the
Source Code Program (or any software based on or derived from the Source Code Program) to any third
party.




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Exhibit E




HP Products



HP Products are host channel adaptors (“HCA”) having any of the following HP part numbers:



HP Part #



380298-B21

380299-B21

409376-B21

409377-B21

431038-B21

431039-B21




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EXHIBIT F




Section 3.1.1 Compute Cluster Server System “Unlicensed Software” Notification Procedure



The parties agree that the following procedure, to be implemented by HP will satisfy the
requirements of subsection (d) of Section 3.1.1 of the Agreement:





	 	1.	 	Initial shipments of HP CCS systems will not contain any notification that the Windows
version of the Program is Unlicensed Software.
	 
	 	2.	 	Beginning approximately in mid-November 2006, HP will revise and update the
documentation that accompanies HP CCS systems to include notification to its end-user
customers of the prohibitions contained in Section 3.1.1.






	 	a.	 	Such documentation will be loaded onto the system’s hard drive when the
systems is shipped to the end-user customer with the CCS software pre-installed.
	 
	 	b.	 	In addition, a CD containing the documentation will be shipped with
each HP CCS system, whether or not the software was preloaded.






	 	3.	 	Except as noted in Section 1 of this Exhibit F, HP will include the notification in the
HP CCS System documentation throughout the term of this contract.




The parties agree that HP’s compliance with this procedure will not give rise to any HP
liability to Licensor for end-user customer misuse of Unlicensed Software, provided that HP does
not have actual knowledge of such misuse. In the event HP does acquire actual knowledge of
misuse of Unlicensed Software, HP sole obligation and Licensor’s sole remedy shall be for HP to
either (i) obtain from the end-user customer a valid software license for the Program in which
case HP shall pay the applicable Per Copy Fee(s) to Licensor, or (ii) obtain the return of all
copies of the Unlicensed Software from such customer.





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