Exhibit 10.6


 


BUSINESS DEVELOPMENT AGREEMENT


 


This BUSINESS DEVELOPMENT
AGREEMENT (the “Agreement”) is made and entered into as of the 30th day of
November, 2003, (the “Effective Date”) by and between MathStar, Inc., a
Minnesota corporation, with offices at 5900 Green Oak Drive, Minneapolis, MN
55343 (“MathStar”), and Summit Design, Inc., a Delaware corporation, with
offices at 35 Corporate Drive, Burlington, MA 01803 (“Summit”).


 


WHEREAS, MathStar intends
to offer the electronic product design market a programmable logic device that
streamlines the implementation of complex system logic designs and lowers the
unit production cost of the end products.


 


WHEREAS, Summit is
working to develop the electronic system level design market by offering
software that facilitates design definition and functional verification at
multiple abstraction levels, provides advanced performance analysis for complex
systems and facilitates the simultaneous development of software with
electronic hardware.


 


WHEREAS, because MathStar
devices are constructed from objects more complex than traditional logic gates,
Summit’s software design environment is expected to be well suited to help
designers create logic designs in MathStar devices; and because MathStar
devices provide inherent uniqueness and are focused at complex electronic
product applications, they are expected to be successful with customers who
would also be good prospective customers for Summit software.


 


WHEREAS, MathStar and
Summit desire to collaborate to develop a product that provides an effective
solution to the challenge of rendering logic designs in MathStar Field
Progammable Object Arrays (“FPOAs”) and to further collaborate on the marketing
and sale of such product.


 


NOW, THEREFORE, in
consideration of the mutual promises contained herein, the parties agree as
follows:


 


1.             DEFINITIONS.  Capitalized terms used in this Agreement are
defined herein and throughout the Agreement. 
Terms not defined herein shall be given their plain English meaning;
provided, however, that those terms, acronyms and phrases known in the computer
software industry which are not defined shall be interpreted in accordance with
their generally accepted industry meaning. 
As used herein, the following terms shall have the meanings set forth
below:


 


1.1           “Product”
shall mean software used to define, refine, simulate and analyze the functional
logic design intended for rendering in a MathStar FPOA and used to generate
OHDL code for output to the MathStar COAST software.  Such product shall consist of the Summit
Software, the MathStar-Specific Software and the MathStar Library.


 


1.2           “Summit
Software” shall mean Summit’s Visual Elite ESL software.


 


1.3           “MathStar
Library” shall mean MathStar’s library of SystemC models and their associated
graphic symbols.


 


1.4           “MathStar-Specific
Software” shall mean features of the Summit Software specific to the MathStar
FPOA design application and which are not specific to any other manufacturer of
any other programmable logic devices.


 


1.5           “External
MathStar-Specific Software” shall mean any portion of the MathStar-Specific
Software that is located outside a publicly exposed application programming
interface within the Product.


 


1.6           “End
Users” shall mean users of the Product who have executed Summit’s end user
license agreement, the current version of which is attached hereto as Exhibit A.


 


1





















 


2.             INTENT
AND PURPOSE; STATEMENTS OF WORK.


 


2.1           INTENT
AND PURPOSE.  This Agreement contemplates
certain joint development activities between MathStar and Summit to develop the
Product and the marketing, sales and support activities for the Product (the “Activities”).


 


2.2           STATEMENTS
OF WORK.  It is understood and agreed
that the parties have attempted to define their respective roles and
responsibilities with respect to the Product; however, the parties agree and
acknowledge that an exhaustive definition of each party’s roles and
responsibilities at this time is not feasible and therefore the parties may
determine that it is appropriate to execute and deliver a separate plan for
some Activities undertaken (each, a “Statement of Work”).  If and when executed, each Statement of Work
will be attached to and incorporated by reference into this Agreement, and the
terms and conditions of the Statement of Work shall control to the extent
inconsistent with the terms contained herein. 
The parties agree that each Statement of Work may set forth, among other
things as the parties shall deem appropriate, the following:


 


•              a
detailed description of the Activity;


•              any
design documents or specifications (unless the Activity contemplates creation
or development of the same);


•              deliverables,
if any, that either or both parties will be responsible for creating and
developing;


•              tasks,
responsibilities, covenants and agreements of each party relating to the
Activity;


•              deadlines,
interim milestones, and other matters relating to timing and delivery or
performance under the Activity;


•              intellectual
property rights or licenses to the extent different from the terms of this
Agreement;


•              exclusivity
rights or other restrictions on use with or marketing of competing
technologies, if any;


•              obligations
of the parties to market or sell the Product; and


•              any
other terms or conditions that vary from the terms and conditions set forth in
this Agreement.


 


3.             THE
ACTIVITIES


 


3.1           THE
MARKET ASSESSMENT


 


3.1.1        ASSESSMENT.  MathStar, with reasonable assistance from
Summit and subject to Section 3.1.2 hereof, shall assess market
requirements, gather customer feedback and transform this information into a
market requirements document for the Product and any new versions thereof.


 


3.1.2        DEFINITION
OF DETAILED PRODUCT REQUIREMENTS.  The
parties shall jointly define the detailed product requirements for the Product
and any new versions thereof, taking into account market demands and each party’s
need to maintain efficient business operations. 
MathStar shall define the functional enhancements and schedule objectives
for the Product.  Summit shall define the
implementation, cost and release schedule for Product and all enhancements
thereto.  As provided in Section 4.4
hereof, MathStar shall pay Summit engineering fees for enhancements to the
Product.


 


3.2           PRODUCT
DEVELOPMENT.  Summit shall develop and
maintain the Summit Software and the MathStar-Specific Software.  MathStar shall develop and maintain the
MathStar Library and deliver a copy of the MathStar Library to Summit as soon
as reasonably practicable for incorporation into the Product.  MathStar hereby grants to Summit the right to
incorporate the MathStar Library with and into the Product and to grant
sublicenses of the MathStar Library to End Users.  Each party will provide reasonable
development support to the other party as needed.


 


3.2.1        PRODUCT
RELEASE SCHEDULE.  Summit shall control
the master schedule for the development and release of the Product and new
versions thereof and shall be responsible for defining which features and bug
fixes will be available within the Product and each Product release.


 


2





















 


3.2.2        COMPUTING
PLATFORM SUPPORT.  Summit shall
release and support the Product on the PC Windows (NT, 2000, XP), Solaris and
Red Hat Linux platforms.  Summit shall
specify the support for specific operating system versions as a requirement for
each major Product version to be released.


 


3.2.3        FIELD
TESTING ALPHA AND BETA SOFTWARE RELEASES. 
MathStar staff shall assist Summit engineering in the functional testing
of alpha and beta versions of new Product releases, as reasonably requested by
Summit.


 


3.2.4        SOFTWARE
QUALITY ASSURANCE.  Summit shall perform
software quality assurance testing for each Product release, except for patch
distribution, beta releases and other releases where the Product is made
available prior to full verification.


 


3.3           MARKET
DEVELOPMENT AND DEMAND GENERATION


 


3.3.1        TRADE
SHOW SUPPORT.  Each party shall exhibit
the Product or information about the Product at trade shows where the party
exhibits their products.  In cases where
exhibition of the Product would conflict with the interests of the trade show
sponsor, this obligation shall not apply. 
When the Product is being exhibited at trade shows, the exhibiting party
may request assistance from the other party in supporting the Product
exhibition or demonstrations.  The
parties shall mutually determine what information about the Product is to be
exhibited and how it is to be exhibited.


 


3.3.2        TECHNICAL
SEMINARS.  Each party may provide
technical seminars involving the Product in the context of FPOA design and each
party shall provide reasonable support to the other in furtherance of such
seminars.  The parties shall mutually
determine the contents of the seminars.


 


3.3.3        INTERNET
PRESENCE AND WEBSITE RESOURCES.  Each
party shall dedicate a portion of its website to information about the Product,
its primary value points and its role in the FPOA design process.  The parties shall mutually determine the
content of such information to be set forth on their websites.  The parties shall cooperate on the development
of links between their respective websites, where such links would be helpful
to customers.


 


3.3.4        LEAD
GATHERING AND DISSEMINATION.  Sales leads
regarding the use of the Product for FPOA design shall be shared by the
parties.  Shared leads shall be
distributed to the other party on a regular basis.  Points of contact shall be established
between the parties in order to facilitate shared lead communication.


 


3.3.5        ADVERTISING.  Advertising developed by either party that
includes the Product or references the Product shall include the brand
identification of both parties within the advertisement.  The brand identification shall include the
party’s graphic logo and, if sufficient room, the party’s tag line.  Each presentation of each party’s brand image
shall require the prior approval of the marketing leadership of the other
party.


 


3.3.6        PRINTED
PRODUCT LITERATURE.  Product data sheets,
application guides and other Product literature developed by either party that
includes the Product or references to the Product shall include the brand
identification of both parties within the publication.  The brand identification shall include the
party’s graphic logo and, if sufficient room, the party’s tag line.  Each presentation of each party’s brand image
shall require the prior approval of the marketing leadership of the other
party.


 


3.4           PRODUCT
LICENSE SALES


 


3.4.1        PRODUCT
CONFIGURATION AND PRICING.  Summit shall
establish the suggested list price for the Product.  The parties shall collaborate on development of
Product configurations, promotions and discounting strategies.


 


3.4.2        DIRECT
SALES CHANNELS.  The Product shall be
sold through coordinated actions of the MathStar and Summit direct sales
staffs, including field sales and inside sales staff.  Either party may initiate customer
qualification, prospect for new sales opportunities and perform technical
qualification of an opportunity.  Except
for cases where the Product is bundled with other MathStar products and sold as
a single part number, Summit shall be


 


3





















 


exclusively responsible
for providing price and delivering quotations to customers and selling the
Product to End Users.  MathStar may
bundle the Product only with other MathStar products and sell the combined
product under a single part number on a limited promotional basis.  In such cases, MathStar shall purchase a
block of one-year term licenses for the Product at a mutually agreed price from
Summit and distribute such Product to End Users bundled as provided above.


 


3.4.3        INDIRECT
RESELLERS.  The Product may be sold
through indirect channels, including resellers, selected by either party, which
both parties must qualify as technically competent to handle the Product and
which both parties must qualify as a business partner.  Indirect resellers shall have entered into a
reseller agreement with Summit pursuant to which such reseller has specific
authorization to resell the Product, to provide quotes to customers and to take
customer orders for the Product.


 


3.4.4        ORDER
ENTRY AND FULFILLMENT.  All customer
purchase orders for the Product shall be placed with Summit or with indirect
resellers who have entered into a reseller agreement with Summit.  Summit shall process orders and ship Product
licenses and software download instructions in accordance with Summit’s normal
business practices.


 


3.4.5        PRODUCT
TRAINING FOR SALES CHANNELS.  The parties
shall jointly provide sales training to indirect sales channels.  MathStar shall provide sales training to
Summit with respect to the MathStar Library and the MathStar-Specific Software
and Summit shall provide sales training to MathStar with respect to the Summit
Software.


 


3.4.6        CHANNEL
CONFLICT.  In order to minimize any
channel conflict and to maximize the parties’ sales of the Product, the parties
shall meet periodically, as mutually agreed, in order to discuss potential
customer opportunities and required resources in order to close sales of the
Product.


 


3.5           PRODUCT
DISTRIBUTION.


 


3.5.1        PRODUCT
LICENSING.  The Product shall be licensed
to End Users via Summit’s then current end user license agreement.  The current version of such agreement is
attached hereto as Exhibit A.  If
Summit’s form of end user license agreement changes, it shall give notice of
such changes to MathStar, and Summit and MathStar shall amend this agreement by
attaching the most current form of Summit’s end user license agreement to this
Agreement as new Exhibit A.


 


3.5.2        PACKAGING
OF PRODUCT RELEASES.  The Product and all
major versions thereof shall consist of the Summit Software, the
MathStar-Specific Software and the MathStar Library, packaged together by
Summit as a single part number, downloadable as a single complete file
image.  Summit shall provide End Users
with a single installation process that places the Product in the proper
locations in the End User’s environment.


 


3.5.3        PRODUCT
DISTRIBUTION LOGISTICS.  The distribution
mechanism for the Product shall be FTP access via the internet.  The distribution website shall be developed,
hosted and maintained by Summit or its supplier with assistance and support
from MathStar.  The website shall provide
for effective, secure upload of model library releases and patches from
MathStar, as well as effective location and retrieval of software and patches
by customers.  Qualified resellers of the
Product may provide links to the Summit website in order to act as distribution
portals.


 


3.6           CUSTOMER
SUPPORT.  Summit shall provide first line
support of the Product to End Users. 
Such support shall include, but not be limited to, initial
troubleshooting assistance and involving Summit technical support in those
cases where the problem appears to be located within or caused by Summit
Software or the MathStar-Specific Software. 
Summit shall provide technical customer support via a toll-free
telephone number in the United States and Canada staffed during normal, weekday
business hours (excluding Summit holidays), as well as via e-mail and
website.  Summit will use commercially
reasonable efforts to respond promptly to all reasonable service requests from
End Users.  If Summit determines that the
problem appears to be located within or caused by the MathStar Library,
MathStar, upon Summit’s request, shall provide technical customer support
either to Summit or, if requested, directly to an End User.  MathStar shall provide such support in
accordance with the terms set forth above.


 


4





















 


3.6.1        BUG
REPORTING AND TRACKING.  Summit shall
provide MathStar access to Summit’s bug tracking system for the purpose of
tracking problem reports and bugs in the Product.  Problems and potential bugs in the Product
shall be entered into Summit’s bug tracking system by technical support staff
or application engineers from either party. 
Each party shall identify and maintain a technical support point of
contact, who shall be responsible for communicating technical problem status
and customer impact priority with the other party and for insuring that
customer problem reports associated with the Product are resolved in a timely
manner.


 


3.6.2        BUG
CONFIRMATION AND RESOLUTION.  Summit
shall confirm and resolve bugs in the Summit Software and MathStar-Specific
Software in accordance with its customary procedures for support of its
products.  MathStar shall confirm and
resolve bugs in the MathStar Library. 
Each party shall provide engineering support to the other party upon
request in order to expedite the resolution of bugs.


 


3.6.3        FIELD
SALES TECHNICAL STAFF.  Each party shall
develop and maintain trained technical staff that will be available in the
field to visit End Users and assist with technical problem solving or
troubleshooting as required.


 


3.7           END
USER TRAINING.


 


3.7.1        END
USERS TRAINING CLASS DEVELOPMENT. 
MathStar and Summit shall collaborate on the development of an End User
training course that may be provided by qualified staff members of either party
or both parties, depending on resource availability and geographical
convenience.  Customer training classes
shall consist of the essential training elements necessary for End Users to
learn how to use the Product for the purpose of creating and verifying FPOA
designs.  Each party shall own the
portion of the course materials such party contributes to the End User training
course and hereby grants to the other party a no charge license to use and
distribute such materials to End Users attending such training courses.


 


3.7.2        CUSTOMER
TRAINING CLASS DELIVERY.  Each party
may deliver the jointly developed training class using their own
instructors.  The parties shall explore
ways of sharing resources for training delivery or for contracting for training
instructors from one party to deliver training to End Users of the other party
pursuant to a mutually agreed agreement. 
Unless otherwise agreed, the party providing the training services shall
be entitled to receive all fees associated with such services.


 


3.8           USER
MANUALS.


 


3.8.1        USER
MANUAL DEVELOPMENT.  Summit shall develop
a section or addendum to the Summit Software user manual that addresses
the use of the MathStar-Specific Software. 
MathStar shall develop any user manual documentation required for the
MathStar Library.  Summit shall assemble
the user manual for the Product, consisting of the standard Summit Software
user manual, a section or addendum dedicated to the MathStar-Specific
Software within the Summit Software and a section or addendum with the
documentation for the MathStar Library. 
Each party shall own all right, title and interest in and to the portion
of the user manual such party contributes to the user manual and hereby grants
to the other party a no charge license to incorporate such party’s materials
into the user manual for the Product and to distribute such materials to End
Users as part of the user manual for the Product.  Each party agrees not to remove the copyright
notices on any user manual materials of the other party.


 


3.8.2        USER
MANUAL DISTRIBUTION.  User manuals shall
be updated and distributed electronically with each major release of the
Product only in PDF file format.  Summit
shall have the responsibility of aligning the user manual information with the
functionality of each major release of the Product.


 


4.             FINANCIAL
CONSIDERATIONS.


 


4.1           REVENUE
FROM PRODUCT LICENSE SALES AND MAINTENANCE


 


Summit shall receive all
revenue from Product license sales and maintenance, except for commissions or
margins provided to indirect sales organizations in accordance with valid
reseller agreements between Summit and the respective reseller.  MathStar shall receive all revenue from
Product license sales by MathStar in accordance with section 3.4.2 hereof.


 


5





















 


4.2           ENGINEERING
FEES FOR PRODUCT ENHANCEMENTS


 


MathStar shall pay Summit
engineering fees only for enhancements to the Product that are requested by
MathStar.  The parties shall agree on the
amount of the fee, sign a mutually agreed specifications document and sign a
Statement of Work prior to Summit performing such services.


 


4.3           ENGINEERING
FEES FOR PRODUCT MAINTENANCE


 


During the term of this
Agreement, MathStar shall pay to Summit engineering fees in the amount of
US$50,000 per year on the anniversary of the Effective Date of this Agreement,
beginning on the first anniversary date of the Effective Date, and on each
anniversary thereafter.  Such fee shall
be in consideration of Summit’s maintenance of the MathStar-Specific Software
within the context of the constantly evolving Summit Software releases.


 


4.4           ENGINEERING
DEVELOPMENT CREDIT


 


During the term of this
Agreement, within twenty (20) days after each anniversary of the Effective Date
of this Agreement, beginning on the first anniversary date of the Effective
Date, Summit shall provide MathStar with an engineering development credit in
the amount of ten percent (10%) of the revenue from Product license sales and
maintenance recognized by Summit during the prior term (initial or renewal) of
the Agreement (the “Summit Revenue”). 
Within twenty (20) days after each anniversary date of the Effective
Date of this Agreement, Summit shall deliver to MathStar a report showing, in
reasonable detail, the amount of Summit Revenue recognized by Summit in such
prior term.  Upon thirty (30) days prior
written notice, at MathStar’s sole cost and expense, MathStar shall have the
right to appoint an independent accounting firm or other qualified agent or
employee to examine such financial books, records and accounts during Summit’s
normal business hours at Summit’s offices to verify the information contained
in any of the reports provided by Summit pursuant to this Section, subject to
the execution of Summit’s standard confidentiality agreement by the accounting
firm or other qualified agent or employee; provided, however, that execution of
such agreement shall not preclude such firm or other qualified agent or
employee from reporting its results to MathStar.  MathStar may apply this engineering
development credit toward the purchase of Product enhancements or Product
maintenance during the current term of the Agreement.  The fee for such Product enhancements or
Product maintenance set forth in Sections 4.2 and 4.3 hereof shall be offset
against the credit upon written notice by MathStar to Summit that MathStar is
electing use the credit in such manner; provided, however in no event shall the
credit exceed one hundred percent of the fee for such Product enhancements or
maintenance.  Any credit that is unused
during such one year period shall expire upon the end of such period and is not
available for use during any future renewal term of this Agreement.  No engineering development credit shall apply
to orders from MathStar for Product enhancements during the initial term of the
Agreement.


 


4.5           SUMMIT
SOFTWARE FOR MATHSTAR INTERNAL USE


 


Summit hereby grants to
MathStar a no-charge, worldwide right and license to use Summit Visual Elite
ESL, System Architect and Virtual Prototype products for MathStar’s internal
use for an unlimited number of users and for the development of design
application examples.  MathStar’s use of
such products shall in all events be subject to the terms and conditions of
Summit’s end user license agreement attached hereto as Exhibit A.  Such license shall be in effect for the
initial term of the Agreement and each subsequent renewal term of the Agreement
during which Summit has recognized at least US$100,000 in revenue from Product
license sales and maintenance during the prior term (initial or renewal) of the
Agreement.  If Summit notifies MathStar
that Summit failed to recognize at least US$100,000 in revenue from Product
license sales and maintenance during the prior term (initial or renewal) of the
Agreement, MathStar may within ten (10) business days of the date of such
notice pay to Summit the difference between US$100,000 and the actual amount
recognized by Summit during such term. 
If Summit notifies MathStar that Summit failed to recognize at least
US$100,000 in revenue from Product license sales and maintenance during the
prior term (initial or renewal) of the Agreement and MathStar fails to exercise
its pay-down option as provided in the foregoing sentence, then MathStar shall
immediately return to Summit the Visual Elite ESL, System Architect and Virtual
Prototype products and shall provide an officer’s certificate to Summit that
such products have been removed from all computer systems of MathStar.  MathStar shall be entitled to the same audit
rights as described in Section 4.4, and the time periods described in this
Section 4.5 shall be tolled during the conduct and completion of any such
audit, provided such audit is completed within a thirty (30) day period.


 


 


6





















 


5.             ADDITIONAL
AGREEMENTS OF THE PARTIES


 


5.1           LOGO
USAGE.  MathStar hereby grants Summit the
right to use MathStar’s logo, subject to logo usage guidelines to be provided
by MathStar to Summit, as such guidelines may be amended by MathStar from time
to time.  Summit hereby grants MathStar
the right to use Summit’s logo, subject to logo usage guidelines to be provided
by Summit to MathStar, as such guidelines may be amended by Summit from time to
time.


 


5.2           PUBLICITY;
PRESS RELEASES.  The parties may by
mutual consent agree to issue a joint press release describing the
collaboration of the parties.  The
parties shall also consult regularly during the term of the Agreement and
issue, as and when appropriate, such further press releases and/or other
publicity materials as may be appropriate. 
The contents of any press releases issued by the parties shall be
subject to the approval of each party, which approval shall not be unreasonably
withheld or delayed. 





5.3           USE
OF NAME IN PROMOTIONAL MATERIALS.  Each
party shall, with prior approval of the other party (which will not be
unreasonably withheld or delayed), be permitted to identify the other party as
a development partner, to use the other party’s name in connection with
proposals to prospective customers, and to refer to the other party in print or
electronic form for marketing or reference purposes.


 


5.4           FREEDOM
OF ACTION.  Except as specifically provided
herein or in any Statement of Work, either party may market and offer its own
or third party products or services (through any means) which are the same as
or similar to and which are competitive with the other party’s products and
services.  Neither party makes any
assurances or representations to the other in connection with any financial
gain or other benefit that may result from the activities contemplated in this
Agreement.


 


6.             ACTIVITY
MANAGEMENT.


 


6.1           POINTS
OF CONTACT.  Each of the parties agrees
to appoint and keep in place during the term of this Agreement a business point
of contact and a technical point of contact, each of whom will allocate such
portion of his or her working time as may be reasonably necessary to facilitate
communications between the parties.


 


6.2           MEETINGS.  The business points of contact shall meet on
a mutually agreed basis, at least one time each year, to review the overall
progress of the Activities contemplated hereunder and to provide overall
supervision and oversight.  Such meetings
will be held at a mutually agreed location.


 


7.             DEVELOPMENT
EFFORTS; RESOURCE COMMITMENT; EXPENSES.


 


7.1           COST
SHARING AND REIMBURSEMENT.  Except as may
be provided in any specific Statement of Work or as may be otherwise agreed by
the parties or as provided in Section 4.4 hereof, each of Summit and
MathStar agrees that it shall be responsible for its own expenses incurred in
conjunction with this Agreement and any attachments hereto, and with any
undertakings and obligations contemplated hereby.  Notwithstanding the foregoing, if development
efforts are undertaken at either MathStar or Summit offices, then the host
party agrees to provide the necessary office space at no cost to the other
party.


 


7.2           INDEPENDENT
CONTRACTORS.  Either party shall have the
option to utilize contractors in order to satisfy its obligation to supply
personnel resources to the Activities contemplated hereunder, but only to the
extent and insofar as reasonably required in connection with the performance of
the obligations of the party retaining the contractor under this Agreement, and
subject to the further requirements and limitations set forth herein.


 


8.             DISPUTE
RESOLUTION PROCESS.


 


8.1           INITIAL
CONSULTATION AND NEGOTIATION.  In the
event a dispute between Summit and MathStar arises under the Agreement or a
party’s performance thereunder, the matter shall first be escalated to each
party’s business points of contact in an attempt to settle such dispute through
consultation and negotiation in good faith and a spirit of mutual cooperation.


 


7





















 


8.2           ESCALATION.  If the business party contacts are unable to
resolve the dispute within ten (10) days, it shall be referred to the
Chief Executive Officers of each party who shall attempt to resolve such
dispute through consultation and negotiation in good faith and a spirit of
mutual cooperation.


 


8.3           CONTINUED
PERFORMANCE.  Except where prevented from
doing so by the matter in dispute, the parties agree to continue performing
their obligations under this Agreement while any good faith dispute is being
resolved unless and until such obligations are terminated by the termination or
expiration of this Agreement.


 


9.             OWNERSHIP.


 


9.1           OWNERSHIP
BY SUMMIT.  As between MathStar and
Summit, Summit shall own all right, title, and interest in the Summit Software
and MathStar-Specific Software (the “Summit Intellectual Property”), except the
External MathStar-Specific Software, and MathStar shall have no ownership
interest in the Summit Intellectual Property. 
MathStar hereby irrevocably transfers, conveys and assigns to Summit all
of its right, title, and interest in the Summit Intellectual and in any
property owned or to be owned by Summit under this Agreement.  MathStar shall execute such documents, render
such assistance, and take such other action as Summit may reasonably request,
at Summit’s expense, to apply for, register, perfect, confirm, and protect
Summit’s ownership rights set forth in this Section, and Summit shall have the
exclusive right to apply for or register any patents, mask work rights,
copyrights, and such other proprietary protections with respect thereto.


 


9.2           OWNERSHIP
BY MATHSTAR.  As between MathStar and
Summit, MathStar shall own all right, title, and interest in the MathStar
Library and the External MathStar-Specific Software (the “MathStar Intellectual
Property), and Summit shall have no ownership interest in the MathStar
Intellectual Property.  Summit hereby
irrevocably transfers, conveys and assigns to MathStar all of its right, title,
and interest in the MathStar Intellectual Property and in any property owned or
to be owned by MathStar under this Agreement. 
Summit shall execute such documents, render such assistance, and take
such other action as MathStar may reasonably request, at MathStar’s expense, to
apply for, register, perfect, confirm, and protect MathStar’s ownership rights
set forth in this Section, and MathStar shall have the exclusive right to apply
for or register any patents, mask work rights, copyrights, and such other
proprietary protections with respect thereto.


 


9.3           PARTY
AS ATTORNEY-IN-FACT.  Summit agrees that
if MathStar is unable because of Summit’s dissolution or incapacity, or for any
other reason, to secure Summit’s signature to apply for or to pursue any
application for any United States or foreign patents or mask work or copyright
registrations covering the inventions assigned to MathStar above, then Summit
hereby irrevocably designates and appoints MathStar and its duly authorized
officers and agents as Summit’s agent and attorney-in-fact, to act for and in
Summit’s behalf and stead to execute and file any such applications and to do
all other lawfully permitted acts to further the prosecution and issuance of
patents, copyright and mask work registrations thereon with the same legal
force and effect as if executed by Summit. 
MathStar agrees that if Summit is unable because of MathStar’s
dissolution or incapacity, or for any other reason, to secure MathStar’s
signature to apply for or to pursue any application for any United States or
foreign patents or mask work or copyright registrations covering the inventions
assigned to Summit above, then MathStar hereby irrevocably designates and
appoints Summit and its duly authorized officers and agents as MathStar ‘s
agent and attorney-in-fact, to act for and in MathStar ‘s behalf and stead to
execute and file any such applications and to do all other lawfully permitted
acts to further the prosecution and issuance of patents, copyright and mask
work registrations thereon with the same legal force and effect as if executed
by MathStar.


 


9.4           NO
REVERSE ENGINEERING.  Each of MathStar
and Summit agrees that it shall not (i) copy, adapt, modify, translate,
localize, distribute, create any derivative work of, or include in any other
products any Summit Intellectual Property (in the case of MathStar) or MathStar
Intellectual Property (in the case of Summit) or any portion thereof, or (ii) reverse
assemble, decompile, reverse engineer or otherwise attempt to derive source
code (or the underlying ideas, algorithms, structure or organization) from any
such property, except as specifically authorized in writing by the party owning
the same or as specifically provided under this Agreement.


 


9.5           COPYRIGHT
NOTICES.  Each party shall ensure that
all copies of any software or other property in its possession or control
incorporates all copyright and other proprietary notices in the same manner
that the party owning the same incorporates such notices, or in any other
manner reasonably requested by the owner. 
Each party


 


8





















 


shall promptly notify the
other party in writing upon its discovery of any unauthorized use of a party’s
property or the infringement of such party’s proprietary rights therein.


 


10.           TRADEMARKS,
TRADE NAMES AND BRANDING.


 


10.1         USAGE
GUIDELINES.  Summit shall comply with
MathStar’s logo, trademark and branding usage guidelines, which MathStar shall
provide to Summit, and as the same may be updated by MathStar from time to
time.  MathStar shall comply with Summit’s
logo, trademark and branding usage guidelines, which Summit shall provide to
MathStar, and as the same may be updated by Summit from time to time.  Neither party shall alter the other party’s
marks.


 


10.2         OWNERSHIP.  All MathStar marks are and shall remain, as
between Summit and MathStar, the exclusive property of MathStar or its
providers.  All Summit marks are and
shall remain, as between Summit and MathStar, the exclusive property of Summit
or its suppliers.  Neither party grants
any rights in the marks or in any other trademark, trade name, service mark,
business name or goodwill of the other except as expressly permitted hereunder
or by separate written agreement of the parties, and all use of a party’s marks
shall inure to the benefit of the owner of such mark.  Each party agrees that it shall not challenge
or assist others to challenge the rights of the other party or its suppliers or
licensors in the marks or the registration of the marks, or attempt to register
any trademarks, trade names or other proprietary indicia confusingly similar to
the marks.


 


11.           CONFIDENTIALITY.


 


11.1         AGREEMENT
AS CONFIDENTIAL INFORMATION.  The parties
shall treat the terms and conditions and the existence of this Agreement as
Confidential Information (as the term “Confidential Information” is hereinafter
defined).  Each party shall obtain the
other’s consent prior to any publication, presentation, public announcement or
press release concerning the existence or terms and conditions of this
Agreement.


 


11.2         DEFINITION
OF CONFIDENTIAL INFORMATION.  “Confidential
Information” means the terms and conditions of this Agreement, the existence of
the discussions between the parties, any information disclosed in connection
with the Activities being undertaken as described herein, and any proprietary
information a party considers to be proprietary including, but not limited to,
information regarding each party’s product plans, product designs, product
costs, product prices, finances, marketing plans, business opportunities,
personnel, research and development activities, know-how and pre-release
products; provided that information disclosed by the disclosing party (“Disclosing
Party”) in written or other tangible form will be considered Confidential
Information by the receiving party (“Receiving Party”) only if such information
is conspicuously designated as “Confidential,” “Proprietary” or a similar
legend.  Information disclosed orally
shall be considered Confidential Information only if:  (i) it is identified as confidential,
proprietary or the like at the time of disclosure, and (ii) it is
confirmed in writing within thirty (30) days of disclosure.  Confidential Information disclosed to the
Receiving Party by any affiliate or agent of the Disclosing Party is subject to
this Agreement.


 


11.3         NONDISCLOSURE.  The Receiving Party shall not disclose or
use, except as permitted under this Agreement, the Confidential Information to
any third party other than employees and contractors of the Receiving Party who
have a need to have access to and knowledge of the Confidential Information
solely for the purpose of performing its obligations under this Agreement.  The Receiving Party shall have entered into non-disclosure
agreements with such employees and contractors having obligations of
confidentiality as strict as those herein prior to disclosure to such employees
and contractors to assure against unauthorized use or disclosure.


 


11.4         EXCEPTIONS
TO CONFIDENTIAL INFORMATION.  The
Receiving Party shall have no obligation with respect to information which (i) was
rightfully in possession of or known to the Receiving Party without any
obligation of confidentiality prior to receiving it from the Disclosing Party; (ii) is,
or subsequently becomes, legally and publicly available without breach of this
Agreement; (iii) is rightfully obtained by the Receiving Party from a
source other than the Disclosing Party without any obligation of
confidentiality; (iv) is developed by or for the Receiving Party without
use of the Confidential Information and such independent development can be
shown by documentary evidence; (v) was publicly known at the time of the
Disclosing Party’s communication thereof to the Receiving Party; or (vi) is
identified by the Disclosing Party as no longer proprietary or
confidential.  Further, the Receiving
Party may disclose Confidential Information pursuant to a valid order issued by
a court or government


 


9





















 


agency with jurisdiction,
provided that the Receiving Party provides the Disclosing Party:  (a) prior written notice of such
obligation; and (b) the opportunity to oppose such disclosure or obtain a
protective order.  The Receiving Party
further agrees that if the Disclosing Party is not successful in precluding the
requesting legal body from requiring the disclosure of the Confidential
Information, it will furnish only that portion of the Confidential Information
which is legally required to be disclosed and will exercise all reasonable
efforts to obtain reliable assurances that confidential treatment will be
accorded the Confidential Information.


 


11.5         RETURN
OR DESTRUCTION OF CONFIDENTIAL INFORMATION. 
Upon written demand by the Disclosing Party, and in any event upon
termination of this Agreement, the Receiving Party shall:  (i) cease using the Confidential
Information; (ii) return the Confidential Information and all copies,
notes or extracts thereof to the Disclosing Party within seven (7) calendar
days of receipt of demand; and (iii) upon request of the Disclosing Party,
certify in writing that the Receiving Party has complied with the obligations
set forth in this section.


 


11.6         INDEPENDENT
DEVELOPMENT AND RESIDUALS.  The terms of
confidentiality under this Agreement shall not be construed to limit either
party’s right to develop independently or acquire products without use of the
other party’s Confidential Information. 
The Disclosing Party acknowledges that the Receiving Party may currently
or in the future be developing information internally, or receiving information
from other parties, that is similar to the Confidential Information.  Accordingly, except as provided in this
Agreement, neither party shall be prohibited from developing or having
developed for it products, concepts, systems or techniques that are similar to
or compete with the products, concepts, systems or techniques contemplated by
or embodied in the Confidential Information provided that the Receiving Party
does not violate any of its obligations under this Agreement in connection with
such development.  Further, subject to
the other restrictions and limitations contained in this Agreement, the
residuals resulting from access to or work with such Confidential Information
shall not be subject to the confidentiality obligations contained in this
Agreement.  The term “residuals” means
non-specific information in non-tangible form, which may be retained by persons
who have had access to the Confidential Information, including general ideas,
concepts, know-how or techniques contained therein.  Neither party shall have any obligation to
limit or restrict the assignment of such persons or to pay royalties for any
work resulting from the use of residuals.


 


12.           REPRESENTATIONS
AND WARRANTIES.


 


12.1         SUMMIT’S
REPRESENTATIONS AND WARRANTIES.  Summit
represents and warrants to MathStar as follows: 
Summit and its licensors own or possess the necessary rights, title and
licenses necessary to perform its obligations hereunder.  Summit has the right to enter into this
Agreement and to perform its obligations hereunder.  Summit will perform all of its obligations in
a workmanlike manner.  EXCEPT AS
SPECIFICALLY PROVIDED IN THIS SECTION, SUMMIT EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY
LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.


 


12.2         MATHSTAR’S
REPRESENTATIONS AND WARRANTIES.  MathStar
represents and warrants to Summit as follows: 
MathStar and its licensors own or possess the necessary rights, title
and licenses necessary to perform its obligations hereunder.  MathStar has the right to enter into this
Agreement and to perform its obligations hereunder.  MathStar will perform all of its obligations
in a workmanlike manner.  EXCEPT AS
SPECIFICALLY PROVIDED IN THIS SECTION, MATHSTAR EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY
LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.


 


13.           INDEMNITY.


 


13.1         INDEMNIFICATION
BY MATHSTAR.  MathStar shall defend,
indemnify and hold harmless Summit and its officers, directors, employees,
shareholders, agents, successors and assigns from and against any and all loss,
damage, settlement, costs or expense (including legal expenses), as incurred,
resulting from, or arising out of (i) any claim against Summit which
alleges that the MathStar Intellectual Property or the MathStar-Specific
Software, as specified by MathStar, infringes upon, misappropriates or violates
any patents, copyrights, trademarks or trade


 


10





















 


secret rights or other
proprietary rights of persons, firms or entities who are not parties to this
Agreement; and (ii) any claim relating to negligence, misrepresentation,
error or omission by MathStar.


 


13.2         MATHSTAR
EXCLUSIONS.  MathStar shall have no
obligation under Section 13.1 above to the extent any claim of infringement
or misappropriation results from:  (i) use
by Summit of the MathStar Intellectual Property or the MathStar-Specific
Software in combination with any other product if the infringement would not
have occurred but for such combination; (ii) any claim based on Summit’s
use of the MathStar Intellectual Property or the MathStar-Specific Software as
shipped after MathStar has informed Summit of modifications or changes in the
Product required to avoid such claims and offered to implement those
modifications or changes, if such claim would have been avoided by
implementation of MathStar’s suggestions; (iii) use of the MathStar
Intellectual Property or the MathStar-Specific Software other than as permitted
under this Agreement, if the infringement would not have occurred but for such
use; or (iv) compliance by MathStar with specifications or instructions
supplied by Summit.


 


13.3         INDEMNIFICATION
BY SUMMIT.  Summit shall defend,
indemnify and hold harmless MathStar and its officers, directors, employees,
shareholders, agents, successors and assigns from and against any and all loss,
damage, settlement, costs or expense (including legal expenses), as incurred,
resulting from, or arising out of (i) any claim against MathStar which
alleges that the Summit Software infringes upon, misappropriates or violates
any patents, copyrights, trademarks or trade secret rights or other proprietary
rights of persons, firms or entities who are not parties to this Agreement; and
(ii) any claim relating to negligence, misrepresentation, error or
omission by Summit.


 


13.4         SUMMIT
EXCLUSIONS.  Summit shall have no
obligation under Section 13.3 above to the extent any claim of
infringement or misappropriation results from: 
(i) use by MathStar of the Summit Software in combination with any
other product if the infringement would not have occurred but for such
combination; or (ii) use of the Summit Software other than as permitted
under this Agreement, if the infringement would not have occurred but for such
use.


 


13.5         CONTROL
OF DEFENSE.  As a condition to such
defense and indemnification, the party seeking indemnification will provide the
other party with prompt written notice of the claim and permit such other party
to control the defense, settlement, adjustment or compromise of any such claim.  The party seeking indemnification may employ
counsel at its own expense to assist it with respect to any such claim.


 


13.6         DISCLAIMER.  THE FOREGOING PROVISIONS OF THIS SECTION STATE
THE ENTIRE LIABILITY AND OBLIGATIONS OF THE PARTIES AND THE EXCLUSIVE REMEDY
WITH RESPECT TO ANY VIOLATION OR INFRINGEMENT OF PROPRIETARY RIGHTS INCLUDING,
BUT NOT LIMITED TO, ANY PATENT, COPYRIGHT, TRADEMARK, BY THE INTELLECTUAL
PROPERTY OF MATHSTAR AND SUMMIT, RESPECTIVELY, OR ANY PART THEREOF.  EACH PARTY’S OBLIGATIONS UNDER THIS SECTION ARE
SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 14.


 


14.           LIMITATION
OF LIABILITY.


 


14.1         LIMITATION
OF DAMAGES.  EXCEPT FOR BREACH OF THE
OBLIGATIONS OF CONFIDENTIALITY SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE
WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, STRICT
LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST REVENUE OR PROFITS, OR COST OF
PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.


 


14.2         LIMITATION
OF LIABILITY.  EXCEPT FOR BREACH OF THE
OBLIGATIONS OF CONFIDENTIALITY SET FORTH HEREIN AND THE INDEMNIFICATION
OBLIGATIONS UNDER SECTION 13, THE TOTAL DOLLAR LIABILITY OF EITHER PARTY
UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE LESSER OF $100,000 OR
THE AMOUNT OF SUMMIT REVENUE RECOGNIZED FOR PRODUCT LICENSE SALES.


 


11





















 


15.           TERM
AND TERMINATION.


 


15.1         TERM
OF AGREEMENT.  This Agreement shall be
effective upon the Effective Date and shall remain in force for a period of one
(1) year, unless otherwise terminated as provided herein.  Thereafter, this Agreement shall
automatically renew for one or more terms of twelve months, unless otherwise
terminated as provided herein.


 


15.2         TERMINATION
FOR CAUSE.  This Agreement may be
terminated by a party for cause immediately upon the occurrence of and in
accordance with the following:  (a) Insolvency
Event.  Either may terminate this
Agreement by delivering written notice to the other party upon the occurrence
of any of the following events:  (i) a
receiver is appointed for either party or its property; (ii) either party
makes a general assignment for the benefit of its creditors; (iii) either
party commences, or has commenced against it, proceedings under any bankruptcy,
insolvency or debtor’s relief law, which proceedings are not dismissed within
sixty (60) days; or (iv) either party is liquidated or dissolved. (b) Default.  Either party may terminate this Agreement
effective upon written notice to the other if the other party violates any
covenant, agreement, representation or warranty contained herein in any
material respect or defaults or fails to perform any of its obligations or
agreements hereunder in any material respect, which violation, default or
failure is not cured within thirty (30) calendar days after notice thereof from
the non-defaulting party stating its intention to terminate this Agreement by
reason thereof.


 


15.3         TERMINATION
FOR CONVENIENCE.  This Agreement may be
terminated by either party without penalty, for any or no reason, by providing
ninety (90) days’ prior written notice of such termination.


 


15.4         SURVIVAL
OF RIGHTS AND OBLIGATIONS UPON TERMINATION. 
Sections 5, 7, 9, 10, 11, 13, 14, 15, 16 and all payment obligations of
the parties shall survive any expiration or termination of this Agreement.  Furthermore, in the event of any termination
or expiration of this Agreement, all licenses expressly granted to End Users
shall survive.


 


15.5         EFFECT
OF TERMINATION.  If this Agreement is
terminated, (i) Summit shall immediately document in detail the status of
any Statement of Work then in effect, and Summit shall deliver to MathStar all
copies of External MathStar — Specific Software that are in its or any third
party’s possession (except in the possession of End Users), whether or not such
External MathStar — Specific Software has been completed or is still in
progress, and such External MathStar — Specific Software shall, for all
purposes of this Agreement, be deemed transferred to MathStar, with respect to
which MathStar shall have all applicable ownership and license rights; (ii) the
parties shall immediately cease work as of the effective date of termination as
to any Statement of Work then in process; and (iii) MathStar shall pay
Summit, within thirty (30) days after the receipt by MathStar of a report from
Summit describing the work performed by Summit in reasonable detail, for any
amount due Summit for work performed under any Statement of Work.


 


16.           MISCELLANEOUS.


 


16.1         FORCE
MAJEURE.  Neither party shall be liable
to the other for delays or failures in performance resulting from causes beyond
the reasonable control of that party including, but not limited to, acts of
God, labor disputes or disturbances, material shortages or rationing, riots,
acts of war, governmental regulations, communication or utility failures, or
casualties.  However, the occurrence of a
force majeure event shall not relieve either party of its payment obligations
under this Agreement.


 


16.2         EXPORT.  Each party hereby acknowledges that one or
more deliverables supplied under the Agreement are or may be subject to export
or import controls under the laws and regulations of the United States (U.S.).  Each shall comply with such laws and
regulations and agrees not to knowingly export, re-export, import or re-import,
or transfer products without first obtaining all required U.S. Government
authorizations or licenses.  MathStar and
Summit each agree to provide the other such information and assistance as may
reasonably be required by the other in connection with securing such
authorizations or licenses, and to take timely action to obtain all required
support documents.  Each party agrees to
maintain a record of exports, re-exports, and transfers of any such
deliverables for five (5) years and to forward within that time period any
required records to the party needing the same or, at such party’s request, the
U.S. Government.  Each party agrees to
permit audits as required under the regulations to assure compliance with this
Agreement.


 


12





















 


16.3         RELATIONSHIP
OF PARTIES.  The parties are independent
contractors under this Agreement, and no other relationship is intended,
including a partnership, franchise, joint venture, agency, employer/employee,
fiduciary, master/servant relationship, or other special relationship.  Neither party shall act in a manner which
expresses or implies a relationship other than that of independent contractor,
nor bind the other party.  Neither party
is by virtue of this Agreement authorized as an agent, employee or legal
representative of the other party.


 


16.4         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 or entity other than
MathStar and Summit any rights, remedies or other benefits under or by reason
of this Agreement.


 


16.5         EQUITABLE
RELIEF.  Each party acknowledges that a
breach by the other party of any confidentiality or proprietary rights
provision of this Agreement may cause the non-breaching party irreparable harm,
for which the award of damages would not be adequate compensation.  Consequently, the non-breaching party may
institute an action to enjoin the breaching party from any and all acts in
violation of those provisions, which remedy shall be cumulative and not
exclusive, and a party may seek the entry of an injunction enjoining any breach
or threatened breach of those provisions in addition to any other relief to
which the non-breaching party may be entitled at law or in equity.


 


16.6         ATTORNEYS’
FEES.  In addition to any other relief
awarded, the prevailing party in any action arising out of this Agreement shall
be entitled to its reasonable attorneys’ fees and costs.


 


16.7         NOTICES.  Any notice required or permitted to be given
by either party under this Agreement shall be in writing and shall be
personally delivered or sent by a reputable overnight mail service (e.g.,
Federal Express), or by first class mail (certified or registered) to the
business point of contact of the other party. 
Notices will be deemed effective (i) three (3) working days
after deposit, postage prepaid, if mailed, or (ii) the next day if sent by
overnight mail.  A copy of any notice
shall be sent to the following:  Summit
Design, Inc., 35 Corporate Drive, Burlington, MA 01803, Attn:  VP, Finance, and to:  MathStar, Inc., 5900 Green Oak Drive,
Minnetonka, MN 55343, Attn:  CFO.


 


16.8         ASSIGNMENT.  Except as otherwise expressly provided herein
with respect to subcontractors, neither party may assign its rights or delegate
its obligations hereunder, either in whole or in part, whether by operation of
law or otherwise, without the prior written consent of the other party.  Any attempted assignment or delegation
without consent will be void.  The rights
and liabilities of the parties under this Agreement will bind and inure to the
benefit of the parties’ respective successors and permitted assigns.


 


16.9         WAIVER
AND MODIFICATION.  Failure by either
party to enforce any provision of this Agreement will not be deemed a waiver of
future enforcement of that or any other provision.  Any waiver, amendment or other modification
of any provision of this Agreement will be effective only if in writing and
signed by the parties.


 


16.10       SEVERABILITY.  If for any reason a court of competent
jurisdiction finds any provision of this Agreement to be unenforceable, that
provision of the Agreement will be enforced to the maximum extent permissible
so as to effect the intent of the parties, and the remainder of this Agreement
will continue in full force and effect.


 


16.11       CONTROLLING
LAW.  This Agreement and any action
related thereto shall be governed, controlled, interpreted and defined by and
under the laws of the State of Delaware and the United States, without regard
to the conflicts of laws provisions thereof. 
The parties specifically disclaim the UN Convention on Contracts for the
International Sale of Goods.


 


16.12       HEADINGS.  Headings used in this Agreement are for ease
of reference only and shall not be used to interpret any aspect of this
Agreement.


 


16.13       ENTIRE
AGREEMENT.  This Agreement, including all
exhibits which are incorporated herein by reference, constitutes the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes and replaces all prior and contemporaneous understandings or
agreements, written or oral, regarding such subject matter.


 


13





















 


16.14       COUNTERPARTS.  This Agreement may be executed in two
counterparts, each of which shall be an original and together which shall
constitute one and the same instrument.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Agreement by persons duly authorized as of
the date and year first above written.


 


	
   

  	
  SUMMIT DESIGN,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Paul
  Bogonis

  
	
   

  	
   

  	
   Name:

  	
  Paul Bogonis

  
	
   

  	
   

  	
   Title:

  	
  Vice President
  of Finance

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MATHSTAR, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Dean
  Westman

  
	
   

  	
   

  	
   Name:

  	
  Dean Westman

  
	
   

  	
   

  	
   Title:

  	
  VP Sales and
  Marketing

  
					



 


14





















 


EXHIBIT A


 





















 


EXHIBIT A


 


	
  SUMMIT
  DESIGN LICENSE AND SERVICES AGREEMENT

  	
  

  SUMMIT

  



 


This Agreement (“Agreement”)
is between the purchaser of this license and its agents and representatives
(collectively, “Licensee”) and Summit Design, Inc., a Delaware
corporation, and its subsidiaries (collectively “Summit”).


 


This Agreement governs Summit’s grant of a license to
Licensee to use this Licensed Product(s), which is defined as, (i) this
computer program and all error corrections, Updates and Upgrades hereto (as
defined below), solely in machine readable form, furnished to Licensee under
this Agreement (the “Software”); (ii) all written and electronic materials
generally made available by Summit for the Software (the “Documentation”); and (iii) the
code block(s) software for use with the Software.


 


BY INSTALLING OR USING THE SOFTWARE, LICENSEE
ACKNOWLEDGES THAT IT HAS READ ALL OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEM. LICENSEE
UNDERSTANDS THAT, IF IT PURCHASED A COPY OF THE LICENSED PRODUCT FROM AN
AUTHORIZED RESELLER OF SUMMIT, THAT ANY SUCH RESELLER IS NOT SUMMIT’S AGENT AND
IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES,
STATUTORY OR OTHERWISE, ON SUMMIT’S BEHALF NOR TO VARY ANY OF THE TERMS OR
CONDITIONS OF THIS AGREEMENT. IF LICENSEE AND SUMMIT ARE PARTIES TO A WRITTEN
LICENSE AGREEMENT, DULY EXECUTED AND DELIVERED BY EACH OF THEM, WITH RESPECT TO
LICENSEE’S USE OF THE SOFTWARE, IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS
OF SUCH LICENSE AGREEMENT AND THIS AGREEMENT, THE RELEVANT PROVISION OF SUCH
OTHER LICENSE AGREEMENT SHALL SUPERSEDE THE CONTRADICTING TERM OF THIS
AGREEMENT.


 


If Licensee does not agree to the terms of this
Agreement and there is no other agreement between the parties with respect to
the Software, Licensee may promptly (but in no event later than 7 days from the
first attempted installation) return this LICENSED PRODUCT to the place FROM
WHICH it obtained the LICENSED PRODUCT for a full refund.


 


1.             DEFINITIONS.


 


1.1.          “Designated Equipment” means (a) for
licenses that are restricted to Use on only one computer (“Node Locked License”),
the individual computer on which the Software is first installed and (b) for
licenses that permit the Use of the Software on more than one computer (“Floating
License”), the computer server on which the Software licensing mechanism is
first installed and the number of individual computers for which a license fee
has been paid.  If there is no agreemen
between Licensee and Summit with respect to the type of license, each license
shall be deemed to be a Node Locked License.


 


1.2.          “Designated Location” means the street address
of the Designated Equipment.


 


1.3.          “Licensed Product(s)” is defined as:


(i)    the computer program and all error corrections, Updates and
Upgrades hereto (as defined below), in machine readable form (the “Software”);


 


(ii)   all written and electronic materials generally made available by Summit
Design for the Software (the “Documentation”); and/or


 


(iii)  the code block(s) software for use with the Software;


 


provided that such was
ordered by Licensee and provided by Summit Design while this Agreement is in
effect.


 


1.4. “Proprietary Information” means: 


(a) Summit’s marketing, product, business, and
other strategies and plans; (b) any other information of Summit disclosed
in tangible form and marked or identified as proprietary or confidential; and (c) the
source code, object code, internal design and implementation techniques of the
Software. Excluded from Proprietary Information is any information that is: (d) rightfully
in the public domain; (e) rightfully in Licensee’s possession prior to
receipt from Summit; (f) rightfully learned by Licensee from a third party
not in violation of any obligation of confidentiality or other right; or (g) developed
independently by Licensee without benefit of the Proprietary Information.


 


1.4.          “Territory” means the country of the
Designated Location.


 


A-1





















 


1.5.          “Update(s)” means a new release of a
particular Software program which provides error corrections or enhanced
functionality and for which Summit does not charge a license or update fee to
licensees of that Software program.


 


1.6.          “Upgrade(s)” 
means a Software program with greater or different capability than the
Software program, but providing the same essential functionality, to be
upgraded and for which Summit charges a license fee to licensees of the
Software program to be upgraded.


 


1.7.          “Use” means copying all or any portion of the
Software into a computer or transmitting it to a computer for processing of its



instructions or displaying
any portion of the Software in connection with the processing of such machine
instructions.


 




	
  2.             PAYMENT AND INSTALLATION.

  






 


2.1.          Payment. 
Licensee shall pay Summit in full for the Licensed Product within thirty
(30) days of the invoice date, provided, however, that payment may become
immediately due and payable if Licensee’s account becomes delinquent. Licensee
shall pay for each installment delivery of Licensed Product.


 


2.2.          Installation. 
Licensee shall be responsible for installation of the Licensed Product.


 




	
  3.             LICENSE GRANT.

  






 


3.1.          Evaluation License. If this Software has been
provided for evaluation by Licensee or Licensee has not paid to Summit all
applicable charges for this Software, then Summit grants to Licensee only a
non-exclusive, non-transferable, limited-term evaluation license solely for
internal use of the Software, and solely for the purpose of testing and
evaluating the Software to determine if Licensee will purchase a license to the
Software from Summit (an “Evaluation License”). Licensee shall not use the
Software pursuant to an Evaluation License in the productive course of business
or for any purpose other than testing and evaluating the Software as described
above. This Evaluation License shall be effective as of the date Licensee first
receives the Software and shall remain in effect only for thirty (30) days,
unless this Agreement is terminated prior thereto by either party. During the
term of an Evaluation License, Summit shall provide Licensee with maintenance
and support services for the Software as follows, (i) telephone support
from Summit customer support personnel during Summit’s normal support business
hours, subject to Summit’s normal prioritization procedures; and (ii) software
Updates for the Software as deemed appropriate by Summit. Promptly upon the
expiration of this Evaluation License, and without any notice or demand from
Summit, Licensee shall either: (a) purchase a standard license for the
Software pursuant to the terms of this Agreement; or (b) return the
Software and all related materials to Summit. Failure to return the Software
and all such materials to Summit within thirty-five (35) days of first receipt
shall be deemed to be an election by Licensee to purchase a standard license
for the Software pursuant to Section 3.2 hereof, and payment for such
license shall become due and payable thirty (30) days thereafter (65 days after
first receipt).


 


3.2.          Standard License. If this Software has been
provided to License for use in the productive course of business, Summit hereby
grants,  and Licensee accepts, a
non-transferable, non-sublicensable, perpetual or time-based, non-exclusive,
limited license to Use the Licensed Product in machine-readable form only, and
only on the Designated Equipment at the Designated Location, and only for
Licensee’s internal, normal business purposes; provided, however, that if this
Licensed Product was licensed under Summit’s University Program, the Licensed
Product shall be used only to train Licensee’s students and shall not be used
for any commercial purpose, including but not limited to the creation of any
commercial product. The Licensed Product shall not be used under any
circumstance whatsoever directly or indirectly in a computer service business
or in a rental or commercial timesharing arrangement.


 


3.3.          Intellectual Property Rights. All intellectual
property rights in and to the Licensed Product shall remain the sole and
exclusive property of Summit (and/or its suppliers, if applicable). Licensee
shall have no rights, title, or interest in or to the Licensed Product other
than the license expressly granted in this Agreement.


 


3.4.          Use on Designated Equipment. Use of the
Software is restricted to the Designated Equipment at the Designated Location
on (a) a single computer, in the case of a Node Locked License and (b) via
a local-area network within the Designated Location on the number of individual
computers for which a license fee has been paid, in the case of a Floating
License. Accessing the Software from any location other than the Designated
Location via local- or


 


A-2





















 


wide-area networking
technology, or any other means, is prohibited unless Licensee has paid the
appropriate Summit wide-area network license fee for the applicable Software
and is subject to the restrictions set forth herein. Within five business days
of installation of a Node Locked License, Licensee shall send to Summit the
serial number and type of the Designated Equipment to the following e-mail
address: licenses@sd.com.


 


3.5.          Transfers. 
Licensee may change the Designated Equipment or Designated Location but
only after giving five (5) days prior written notice to Summit; provided,
however, that if the Designated Equipment becomes inoperative Licensee may
change the Designated Equipment provided that Licensee notifies Summit in writing
(by hard copy and e-mail to the address set forth in Section 3.4 above) of
the change promptly following such change. If the new Designated Location is
outside of the Territory, Licensee shall pay Summit’s then standard transfer
charges prior to the change in Designated Location. If the Licensed Product is
not covered by a Software Maintenance Policy (as described below) at the time of
a change in Designated Equipment or Designated Location, Licensee shall pay
Summit’s then standard charges for any assistance provided by Summit to change
the Designated Equipment or Designated Location. Licensee shall, upon request
from Summit, certify to Summit in writing the current Designated Equipment and
Designated Location.


 


3.6.          License Terminates.  Licensee’s license to Use the Licensed
Product that is replaced by an Update or an Upgrade shall terminate thirty (30)
days after the Update or Upgrade is first installed. Within such thirty (30)
day period, Licensee shall destroy or archive the original and all copies of
the Licensed Product that is replaced by the Update or Upgrade, and certify the
destruction or archiving in writing to Summit.


 


4.             PROTECTION OF PROPRIETARY INFORMATION.


 


4.1.          Ownership. 
The Proprietary Information of Summit shall remain confidential and
proprietary to Summit.


 


4.2.          Source Code. 
Licensee shall not attempt to reverse engineer, decompile or disassemble
the Software or any portion thereof, or otherwise derive its source code.


 


4.3.          Copy. Licensee may make one copy of the
Software and Documentation solely for backup and archival use, retaining on
such copy Summit’s and/or its suppliers’ copyright, trademark, confidentiality,
and other notices. Such backup copy shall be delivered to Summit or destroyed
upon the termination of this Agreement.


 


4.4.          Destruction of Software. Licensee shall erase
the Software from all Designated Equipment prior to retiring such equipment
from active use and in the event of termination of this Agreement.


 


4.5.          Inclusion with Other Software. Licensee may
Use the Software within or in conjunction with any other software, but must
comply with Section 4.4 above upon termination of this Agreement or change
of the Designated Equipment, and any Use shall always remain subject to this
Agreement.


 


4.6.          Confidentiality. Licensee shall not disclose,
provide or otherwise make available the Proprietary Information of Summit to
any person, other than authorized employees of Licensee who have signed
agreements with Licensee providing for the protection of the Proprietary Information,
without Summit’s prior written consent, signed by an authorized officer of
Summit.  Licensee shall also protect the
Proprietary Information through instructions to its employees, access
limitations, and the like, no less securely than if it were Licensee’s own
intellectual property. Licensee shall not use the Proprietary Information
except to the extent permitted hereunder. No media containing the Software, nor
any Documentation, shall be transferred, reproduced, or used in any way, other
than as expressly permitted by this Agreement.


 


5.             SOFTWARE MAINTENANCE POLICY.


 


Summit recommends that all Software be covered by
Summit’s standard Software support services. In consideration of payment by
Licensee of Summit’s standard Software support fees, Summit will provide Summit’s
standard Software support services for the Software pursuant to Summit’s
Software Maintenance Policy described below. Software support reinstatement
charges may be incurred in the event of a lapse in Software support coverage
and subsequent renewal.


 


5.1           Term of Support. These support services shall
be for an initial support term of one year, and thereafter for successive
periods of support renewal terms of one year each, unless and until terminated
pursuant to Section 5.7 below.


 


A-3





















 


5.2           Support Fee. 
To obtain support services under the Software Maintenance Policy,
Licensee shall pay to Summit Summit’s standard annual service fee for the
Licensed Product. All service fees are due and payable in full at the start of
each service term for such Licensed Product described in Section 5.1
above. Summit may increase its annual service fees at, but only at, the
beginning of a service term.  If Licensee
and Summit agree, the term of support may be modified and support fees prorated
such that the term of support for all Licensed Product used by Licensee expire
on the same date.  Service fees do not
include excise, sales, use, value added, or other similar taxes, nor any
duties. Licensee shall reimburse Summit for all such taxes and duties incurred
by Summit in connection with this Agreement. If an Upgrade is provided to
Licensee and covered by these support services, Licensee shall pay an
additional service fee equal to the amount by which the annual service fee for
the Upgrade exceeds the annual service fee for the Licensed Product.


 


5.3           Support Services.  Summit will provide Licensee with the
following support services during the support term for the Licensed
Product:  (a) telephone diagnostics
and assistance in the use of the Licensed Product in accordance with the
Documentation during normal,  weekday EST
business hours,  excluding Summit
holidays;  (b) repair or
replacement, at Summit’s option, of any media that is defective and which is
returned to Summit in accordance with Section 6 below; (c) delivery
of Updates upon their general commercial releases by Summit; and (d) delivery
of Upgrades upon their general commercial releases by Summit, provided that
Licensee has ordered the Upgrade and paid the applicable Upgrade Fee. Summit
will use commercially reasonable efforts to respond promptly to all reasonable
service requests from Licensee. Summit shall determine the timing and frequency
of its Update and Upgrade deliveries in its sole discretion. If Licensee and
Summit mutually agree, Summit will provide maintenance services to Licensee
that are not covered under this Section 5.3. If such services are ordered
by Licensee and provided by Summit, they shall be governed by this Agreement,
they shall be provided during normal business hours, excluding holidays
observed by Summit, and Licensee shall pay Summit’s then current standard
charges for such services.


 


5.4           Excluded Services. The following services are
not included under this Section 5: (a) services necessitated by: (i) relocation,
movement, improper operation, neglect, or misuse of the Licensed Product; (ii) Licensee’s
failure to maintain proper site or environmental conditions; (iii) use of
the Software with any software or hardware for which its use is not recommended
in the documentation for the Software provided by Summit; (iv) the fault
of Licensee or Licensee’s agents or employees; (v) any attempt at repair,
maintenance, or modification of the Licensed Product performed by anyone other
than authorized Summit service personnel; (vi) casualty, act of God, or
the unauthorized act of any third party; (vii) failure or interruption of
any electrical power, telephone, or communication service or like cause; or (viii) any
other cause external to the Licensed Product except ordinary Use in accordance
with the license granted in Section 3.2 above; (b) any service or
product not specifically set forth in Section 5.3 above; and (c) service
at Licensee’s location.


 


5.5           Discontinued Licensed Product. Summit reserves
the right to replace a Licensed Product that is discontinued or retired by
Summit with a replacement Licensed Product, and negotiate with Licensee the
difference in price, if any.


 


5.6           Support Services Cease.  If Licensee ceases paying for support
services as described herein, Summit shall have no further obligations
hereunder, and Licensee shall promptly pay to Summit all fees and charges due
hereunder.


 


5.7           Renewal. Either Summit or Licensee may choose
not to renew this Agreement for support services at any time by notifying the
other party of this fact prior to commencement of the next annual service term.
After notification, Summit will continue to provide support services through
the end of the paid term.


 


5.8           University Program. Any Licensee licensing the
Licensed Product through Summit’s University Program shall designate one
person, who must be properly trained in the operation and use of the Licensed
Product, to serve as Licensee’s contact person for all services performed under
this Agreement.  All requests for service
under this Agreement shall be made by Licensee through such contact person.


 


6              LIMITED WARRANTY AND DISCLAIMER.


 


THE LICENSED PRODUCT AND ALL
OTHER ITEMS AND SERVICES PROVIDED IN CONNECTION WITH ANY EVALUATION LICENSE
HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS AND WITHOUT ANY EXPRESS OR


 


A-4





















 


IMPLIED WARRANTY OF ANY KIND, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS SECTION 6. With respect to any license hereunder other
than Evaluation Licenses, Summit warrants that the Software will conform
substantially to its Documentation for thirty (30) days from delivery and that
the medium containing the Software will be free of defects in material and
workmanship under normal use for thirty (30) days from delivery. Licensee must
obtain a return authorization number from Summit before returning the Software,
media, or a Peripheral to Summit. If Summit confirms a material non-conformity
in the Software reported by Licensee in the unaltered Software, Summit will use
commercially reasonable efforts to remedy the nonconformance. Summit does not
warrant that the operation of the Licensed Product will be uninterrupted or
error free, nor does it guarantee that its remedial efforts will correct any
nonconformance. Corrections and replacements will be warranted for the
remainder of the original warranty period. If any Software fails to comply
materially with any limited warranty set forth in this Section 6 and
Summit does not remedy such failure pursuant to this Section 6, Summit’s
sole obligation and liability, and Licensee’s exclusive remedy for such failure
shall be limited: (i) for nonconforming Software, to the refund of the
license fee paid for such Software, upon the return of such Software to Summit,
in which event this Agreement shall terminate; and (ii) for defective
medium to replace the defective media that are returned to Summit within the
warranty period. Some jurisdictions do not allow the exclusion or limitation of
relief, incidental or consequential damages, so the above limitation or
exclusion may not apply to Licensee. Summit will have no obligation for
non-conformities in the Software or defects in medium that are caused by
accident, abuse, or misuse of the Software, medium, or Peripheral. In the event
that Summit separately grants Licensee in writing the right to modify the
Licensed Product, Licensee shall display Summit’s and/or its suppliers’
copyright, trademark, confidentiality and other notices on any portion of the
Licensed Product so Used. SUMMIT MAKES NO CONDITIONS OR WARRANTIES OF ANY KIND,
WHETHER EXPRESSED OR IMPLIED, WRITTEN OR ORAL, EXCEPT AS EXPRESSLY STATED IN
THIS SECTION 6. SUMMIT DISCLAIMS ALL OTHER CONDITIONS AND WARRANTIES,
EXPRESSED AND IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
FREEDOM FROM INFRINGEMENT WITH RESPECT TO THE LICENSED PRODUCT AND ALL OTHER
PRODUCTS, SUPPORT SERVICES, OTHER SERVICES, MATERIALS, DOCUMENTATION, AND OTHER
ITEMS FURNISHED UNDER, OR IN CONNECTION WITH, THIS AGREEMENT.


 


7              INFRINGEMENT.


 


7.1           Summit to Defend. Summit will defend, at its
own expense, any action against Licensee based on a claim that the Licensed
Product infringes a United States patent or United States copyright or involves
misappropriation of a trade secret. 
Summit will pay such damages or costs as are finally awarded against
Licensee for such infringement or misappropriation provided that Licensee gives
Summit: (a) prompt written notice of any such action and of all prior
related claims; (b) sole control of the defense and settlement of such action;
and (c) full cooperation in any defense or settlement. Summit shall not be
liable for any fees, costs, or damages incurred without such prompt written
notice, control, and cooperation.


 


7.2           Exclusive Remedy.  Should any Licensed Product become, or in
Summit’s opinion be likely to become, the subject of a claim of infringement or
trade secret misappropriation as set forth in Section 7.1 above, Summit
shall, at its option and expense: (a) obtain for Licensee the right to
continue using the Licensed Product; (b) replace or modify the Licensed Product
so its use becomes no infringing or otherwise lawful;  or (c) terminate the license granted
hereunder with respect to the infringing Licensed Product or subcomponent and refund
the applicable license fee paid by Licensee for the Licensed Product or
subcomponent, less a reasonable allowance for past use based on straight-line
depreciation over a three-year period.


 


7.3           Disclaimer. Notwithstanding the foregoing,
Summit shall have no liability for any claim of infringement of a patent,  copyright or other intellectual property right
or trade secret misappropriation, based on the use of the Licensed Product: (a) on
a computer for which it was not designed; (b) with any other product not
supplied by Summit; (c) in any manner or purpose for which the Licensed
Product was not designed; (d) if the infringement or misappropriation
would have been avoided by Licensee’s use of the most current version of the
Licensed Product; (e) if it has been modified by anyone other than Summit;
or (f) infringing on intellectual property rights or trade secrets owned
by Licensee or any of its affiliated companies.


 


A-5





















 


7.4           Exclusive Remedy.  THIS SECTION 7 STATES LICENSEE’S
EXCLUSIVE REMEDY AND SUMMIT’S SOLE LIABILITY FOR THE LICENSED PRODUCTS OR
SOFTWARE INFRINGING ON THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR
CONSTITUTING A MISAPPROPRIATION OF THE TRADE SECRETS OF THIRD PARTIES.


 




	
  8              LIMITATION OF LIABILITY.

  






 


8.1           Limitation of Liability.  EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 7
(“INFRINGEMENT”) OF THIS AGREEMENT, SUMMIT’S (AND ITS SUPPLIERS’)  ENTIRE LIABILITY,  AND LICENSEE’S EXCLUSIVE REMEDY, FOR ANY AND
ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR RELATED TO ANY
ITEM OR SERVICE PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS
OF THE FORM OF THE ACTION, WHETHER IN BREACH OF WARRANTY, CONTRACT,  TORT, 
STRICT LIABILITY OR OTHERWISE, 
SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE LICENSE FEE PAID TO SUMMIT BY
LICENSEE FOR THE LICENSED PRODUCT, IN NO EVENT SHALL SUMMIT (NOR ANY OF ITS
SUPPLIERS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL,  OR EXEMPLARY DAMAGES (INCLUDING WITHOUT
LIMITATION LOSS OF DATA, LOST PROFITS, 
AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS), ARISING OUT OF, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY PRODUCT, SERVICE, OR OTHER ITEM PROVIDED
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER IN BREACH OF WARRANTY,
CONTRACT,  TORT,  STRICT LIABILITY OR OTHERWISE,  EVE IF SUMMIT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.


 


8.2           Limitations Period. Neither party may bring
any action under this Agreement for any cause whatsoever more than two (2) 
years after the occurrence giving rise to such cause of action, regardless of
the date of discovery thereof; provided however, that this Section 8.2
shall not apply to any action brought by Summit for violations of Section 3
or Section 4 above and actions brought by Summit to protect its
intellectual property rights.


 


9              DEFAULT AND TERMINATION.


 


9.1           Default. Summit may, by written notice to
Licensee, terminate this Agreement, including the licenses granted hereunder,
if any of the following events occur: (a) the failure of Licensee to pay
Summit in full any fee or charge due to Summit if payment is not rendered
within ten (10) days after Licensee receives written notice that payment
is overdue; (b) any breach of any material term or obligation of this
Agreement if not remedied within thirty (30) days after Licensee receives
written notice of such breach ; (c) any material breach of Section 3
(License Grant) or Section 4 (Protection of Proprietary Information)
effective immediately upon written notice from Summit; or (d) the
insolvency of Licensee.


 


9.2           Termination. 
Licensee’s right to use the Licensed Product shall cease upon
termination without further action. 
Within seven (7) days of termination, Licensee shall return to
Summit the Licensed Product,  including
the original and all copies of all, Documentation and Software, together with a
certification by a duly authorized representative of Licensee that all copies
of the Software not returned have been destroyed.


 


9.3           No Waiver; 
Remedies Cumulative. Termination shall be in addition to, and not a
waiver of, any remedy available to Summit at law, equity or under this
Agreement.  All remedies hereunder and
under applicable law shall be cumulative.


 


9.4           Survival. Notwithstanding the foregoing, the
provisions of Sections 2.1 (“Payment”), 4 (“Protection of Proprietary
Information”), 6 (“Limited Warranty and Disclaimer”) and 8  (“Limitation of Liability”) shall survive
termination.


 


10            GENERAL.


 


10.1         Other Agreements. This Agreement supersedes
all prior oral and written agreements and understandings between the parties
related to the subject matter hereof, and constitutes the complete and
exclusive statement of such agreement. All orders for Licensed Product issued
by Licensee while this Agreement is in effect shall be governed by the terms
and conditions of this Agreement exclusively, and the terms and conditions
contained in any purchase order issued by Licensee shall be of no force or
effect, even if the order is accepted by Summit.


 


A-6





















 


10.2         Headings. Headings in this Agreement are for
convenience only,  and shall be
disregarded when interpreting the terms hereof.


 


10.3         Export Controls. In the event Licensee exports
the Licensed Product from the Territory, Licensee assumes the responsibility
for compliance with all applicable export and re-export regulations, as the
case may be.


 


10.4         Assignment. Neither this Agreement nor any of
Licensee’s rights or obligations under this Agreement shall be assigned or
transferred by Licensee without Summit’s prior written consent and any
attempted assignment or transfer without such consent shall be void.  Licensee agrees that this Agreement binds
Licensee and each of its employees, agents and persons associated with it,
including Licensee’s affiliated and subsidiary firms, corporations and other
organizations. Summit may assign this Agreement and its rights and obligations
hereunder without Licensee’s consent.


 


10.5         Force Majeure. 
Neither party shall be liable for any failure or delay in performing
services or any other obligation under this Agreement (other than payment
obligations), nor for any damages suffered by reason of such failure or delay,
which is, indirectly or directly, caused by strike, riot, natural catastrophe
or other act of God, or any other cause beyond either party’s reasonable
control.


 


10.6         No Waiver. 
If either party fails to perform any of its obligations hereunder and
the other party fails to enforce the provisions relating thereto, such party’s
failure to enforce this Agreement shall not prevent its later enforcement.


 


10.7         Severability. If any provision of this
Agreement is determined by a court to be, or becomes,  invalid, 
unenforceable or illegal,  such
provision shall be (a) modified to be made valid, enforceable and legal in
such a manner as to best effectuate the intent of the parties on the date
hereof or (b) deemed eliminated where such modification is not
practicable. The remainder of this Agreement shall remain in effect in
accordance with its terms as modified by such modification or deletion.


 


10.8         Notices. 
All notices and correspondence under this Agreement shall be in writing
and shall be delivered by personal service, confirmed facsimile, express
courier,  or certified mail,  return receipt requested. If to Summit,
Licensee shall deliver notice to the last address to which Licensee sent
payment for Licensed Product, Software, or support services (or to any
subsequent address communicated to Licensee in writing). If to Licensee, notice
shall be delivered to the last address to which Summit sent an invoice (or to
any subsequent address communicated to Summit in writing). All notices shall be
deemed effective upon receipt if delivered personally or sent by express
courier or confirmed facsimile, and seven (7) days after mailing if sent
by certified mail.


 


10.9         Governing Law. 
This Agreement, and all transactions hereunder, shall be governed by,
and any arbitration hereunder shall apply, the laws of the Commonwealth of
Massachusetts, excluding (a) its rules regarding conflict of laws; (b) the
United Nations Convention on Contracts for the International Sale of Goods; (c) the
1974 Convention on the Limitation Period in the International Sale of Goods;
and (d) the Protocol amending the 1974 Convention, done at Vienna April 11,
1980.


 


10.10       Attorney Fees and Costs. If any legal action
is brought in connection with this Agreement, the prevailing party shall be
entitled to receive its reasonable attorney fees and costs in addition to any
other relief it may receive.


 


10.11       Modifications. 
No modifications of this Agreement shall be binding upon either party
unless made in writing and signed and delivered by an authorized representative
of Summit and Licensee.


 


10.12       Government Use. If Licensee is a U.S.
Government entity,  the Software and the
Documentation are “commercial computer software” or “commercial computer
software documentation.” Absent a written agreement to the contrary, the
Government’s rights with respect to such Software or Documentation are limited
by the terms of this Agreement, pursuant to FAR ’  12.212(a) and/or DFARS ’ 227.7202-1(a),
as applicable.


 


10.13       Dispute Resolution. All disputes arising out
of, or relating to, this Agreement shall be finally resolved by arbitration
conducted in the English language in Boston, Massachusetts, U.S.A., under the
arbitration rules of the American Arbitration Association if Licensee is
located in North America or under the commercial arbitration rules of the
United Nations Commission on International Trade Law if the Licensee is located
outside of North America. Three arbitrators shall be appointed by the President
of the American Arbitration Association. Both parties shall bear equally the
cost of the arbitration (exclusive of legal fees and costs, all of which shall
be allocated in accordance with Section


 


A-7





















 


10.10 above). All decisions
of the arbitrator(s) shall be final and binding on both parties and enforceable
in any court of competent jurisdiction. Notwithstanding this, application may
be made to any court for a judicial acceptance of the award or order of
enforcement. Notwithstanding anything contained in this Section to the
contrary, each party shall have the right to institute judicial proceedings
against the other party or anyone acting by, through or under such other party,
in order to enforce the instituting party’s rights hereunder through
reformation of contract, specific performance, injunction, or similar equitable
relief.


 


10.14                     Third Party Beneficiary Rights. Licensee acknowledges that portions of
the Software and related Documentation are licensed to Licensor by third
parties for inclusion in the Product(s) and that such third parties are
intended third party beneficiaries of the provisions of this Agreement.


 


A-8