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Exhibit 10
Confidential Treatment
For Portions of this
Agreement has been
Requested Pursuant to
Rule 24b-2
11/6/96
Cooperative Agreement
Between
The Regents of the University of California
University of California, San Diego
Office of Advanced Scientific Computing
0000 Xxxxxx Xxxxx
Xx Xxxxx XX 00000-0000
And
Tera Computer Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx XX 00000-0000
TABLE OF CONTENTS
1. DEFINITIONS.............................................................. 4
a. INDUSTRIAL PARTICIPANTS........................................... 4
b. TERA BUNDLED SOFTWARE............................................. 4
c. TERA PRODUCTS..................................................... 4
d. TERA SERVICES..................................................... 4
e. MTA SYSTEM........................................................ 5
2. PERIOD OF PERFORMANCE.................................................... 5
3. COMPENSATION AND PAYMENT................................................. 5
a. COMPENSATION...................................................... 5
b. PURCHASE OF MTA SYSTEM............................................ 5
c. ORDER AND DELIVERY OF THE MTA SYSTEM.............................. 5
d. ORDERS CONTINGENT UPON EXTRAMURAL FUNDING......................... 6
e. PAYMENT FOR MTA SYSTEM............................................ 6
f. INVOICING......................................................... 6
4. RIGHTS AND DUTIES OF UCSD................................................ 6
a. SITE PREPARATION.................................................. 6
b. PURCHASE OF ADDITIONAL TERA PRODUCTS AND SERVICES................. 6
c. REPORT ON EVALUATION.............................................. 7
d. APPLICATIONS PORTING.............................................. 7
e. ACCESS BY TERA.................................................... 7
f. APPROVAL AND ACCESS BY THIRD PARTIES.............................. 7
5. RIGHTS AND DUTIES OF TERA................................................ 8
a. COST.............................................................. 8
b. DELIVERY OF TERA MTA SYSTEM....................................... 8
c. LOAN OF TWO PROCESSORS............................................ 8
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d. INSTALLATION AND TRAINING........................................ 8
e. SITE PREPARATION INFORMATION..................................... 8
f. WARRANTY AND MAINTENANCE OF TERA MTA SYSTEM AND BUNDLED SOFTWARE. 9
g. UPGRADES OF TERA PRODUCTS........................................ 9
h. PROVISION OF WARRANTY AND MAINTENANCE OF TERA PRODUCTS........... 9
i. SPARE PARTS...................................................... 9
j. LIMITATION OF WARRANTY........................................... 10
k. LIMITATION OF LIABILITY.......................................... 10
l. IDENTIFICATION OF INDUSTRIAL PARTICIPANTS........................ 10
m. ACCEPTANCE TESTS................................................. 10
n. ACCEPTANCE DATE AND TRANSFER OF TITLE............................ 10
6. PROJECT MANAGEMENT AND NOTICES.......................................... 11
a. UCSD PERSONNEL................................................... 11
b. TERA PERSONNEL................................................... 11
c. NOTICES.......................................................... 11
7. CONFIDENTIALITY AND NON-DISCLOSURE...................................... 12
a. PROJECT PRIORITY INFORMATION..................................... 12
b. OTHER PROPRIETARY INFORMATION.................................... 12
c. EXCEPTIONS....................................................... 12
8. PUBLICATIONS, ANNOUNCEMENTS AND USE OF NAMES............................ 12
a. PUBLICATIONS..................................................... 12
b. ANNOUNCEMENTS.................................................... 12
c. USE OF NAMES..................................................... 13
9. INVENTIONS, PATENTS AND COPYRIGHTS...................................... 13
a. DEFINITIONS...................................................... 13
b. OWNERSHIP OF INTELLECTUAL PROPERTY............................... 13
c. LICENSE TO INTELLECTUAL PROPERTY................................. 14
d. DISCLOSURE OF INVENTIONS......................................... 14
10. INDEMNIFICATION......................................................... 14
11. INDEMNITY AGAINST INFRINGEMENT.......................................... 14
12. INDEPENDENT CONTRACTOR.................................................. 15
13. FORCE MAJEURE........................................................... 15
14. COMPLIANCE WITH LAWS.................................................... 15
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15. ASSURANCE OF PERFORMANCE AND DISPUTES................................... 16
a. ASSURANCE OF PERFORMANCE AND DISPUTES............................ 16
b. DISPUTES......................................................... 16
16. TERMINATION............................................................. 16
a. UPON BREACH...................................................... 16
b. REMEDIES FOR BREACH.............................................. 16
c. FOR CAUSE - LATE DELIVERY........................................ 16
d. FOR CAUSE - UNAVAILABILITY OF FUNDS.............................. 17
17. SURVIVABILITY........................................................... 17
18. SUCCESSORS AND ASSIGNS.................................................. 17
19. WAIVERS, AMENDMENTS, OR MODIFICATIONS................................... 17
20. GOVERNING LAW, SEVERABILITY............................................. 18
21. ENTIRE AGREEMENT, ORDER OF PRECEDENCE................................... 18
ATTACHMENTS
ATTACHMENT A Initial Tera MTA System and Upgrade Options
ATTACHMENT B Tera Computer Company Software License Agreement
(Note that Attachment B itself includes an attachment identified
as "Schedule A")
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This Agreement is executed by and between The Regents of the University
of California, University of California, San Diego, a corporation of the State
of California (hereinafter referred to as "UCSD"), and Tera Computer Company, a
corporation of the State of Washington, (hereinafter referred to as "Tera").
WHEREAS, UCSD is the recipient of Grant No. ASC-96 13855 issued by
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the National Science Foundation for the conduct of a project entitled
"Acquisition and Evaluation of a Multi-Threaded, Shared Memory Supercomputer"
which will pay for part (but not all) of the compensation to Tera hereunder;
and
WHEREAS, Tera wishes to install the first commercial Tera MTA system
and make it widely accessible, and
WHEREAS, UCSD and Tera have received indications from the U.S.
Department of Energy, Department of Defense and other potential funding
agencies that funding may be available to upgrade the Tera MTA system to a
larger configuration; and
WHEREAS it is considered in the best interest of UCSD and Tera to
participate in a Cooperative Agreement with the joint goals of improving the
stability of Tera's operating system to conduct UCSD research and education
programs, accelerating the availability of applications software for Tera MTA
systems, and promoting participation by Industrial Participants and independent
software vendors;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and with the knowledge that each party intends to rely on the
provisions herein in favor of such party, UCSD and Tera agree as follows:
1. DEFINITIONS
a. INDUSTRIAL PARTICIPANTS
Industrial or commercial entities invited by Tera or UCSD and accepted
by UCSD as participants in the evaluation of Tera Products provided
under this Agreement.
b. TERA BUNDLED SOFTWARE
Tera operating system, compilers, tools and libraries provided by Tera
to UCSD under this Agreement, as itemized in ATTACHMENT A, INITIAL TERA
MTA SYSTEM AND UPGRADE OPTIONS. A separate Software License Agreement
must be executed by the parties for Tera Bundled Software, as set forth
in ATTACHMENT B, TERA SOFTWARE LICENSE AGREEMENT.
c. TERA PRODUCTS
MTA computer systems, upgrades and peripheral equipment offered by Tera
to UCSD under this Agreement, as itemized in Attachment A.
d. TERA SERVICES
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Hardware and software maintenance services, consulting and professional
services offered by Tera to UCSD under this Agreement, as itemized in
Attachment A.
e. MTA SYSTEM
All Tera Bundled Software, Tera Products and Tera Services for
8-processor Multi-Threaded Architecture system ordered by UCSD
hereunder, as itemized on the face of referenced Purchase Order.
2. PERIOD OF PERFORMANCE
Subject to the termination provisions herein, the effective period of
this Agreement shall be October 1, 1996 through September 30, 1998 for the
initial installation, testing and evaluation phase. This Agreement may be
extended by mutual agreement of the parties for a second operational phase.
3. COMPENSATION AND PAYMENT
a. COMPENSATION
Subject to the availability of funding requested by UCSD from extramural
sponsors, and in consideration of the services rendered and items
delivered or reported by the respective parties as provided herein, UCSD
agrees to pay to Tera the amount of Four million dollars ($4,000,000),
including tax for the MTA System, in accordance with the payment
schedule outlined in Article 3c below.
b. PURCHASE OF MTA SYSTEM
UCSD intends to purchase a MTA System during the period of this
Agreement, subject to the availability of extramural funding. As such
funding becomes available, UCSD will issue Purchase Orders (or change
orders) which shall incorporate this Cooperative Agreement. In the event
such extramural funding is not available for the entire system, UCSD
shall not be obligated to purchase the entire system.
c. ORDER AND DELIVERY OF THE MTA SYSTEM
UCSD agrees to exercise its best effort to issue Purchase Orders (or
change orders) in accordance with the following Estimated PO Dates.
Because purchase of the MTA System is dependant upon availability of
extramural funding, UCSD will confirm increments as such funding is
received, such confirmation to be made by issuance of a Purchase Order
(or change order) for the specific item. The parties estimate that
Purchase Order(s) (or change orders) shall be issued approximately no
later than the dates below, and that deliveries shall be made within six
months of order confirmation.
Deliverable Estimated Purchase Estimated Initial
Item Order Date Delivery Date
1. First Two Processors 10/15/96 3/31/97
2. Second Two Processors 12/31/96 6/30/97
3. Third Two Processors 12/31/96 6/30/97
4. Fourth Two Processors 9/30/97 3/31/98
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d. ORDERS CONTINGENT UPON EXTRAMURAL FUNDING
Tera acknowledges that the extramural funding commitments to UCSD as of the
date of this Cooperative Agreement are not sufficient to cover the full
cost of the third and fourth deliverables. In the event that UCSD does not
receive additional extramural funding for the third and/or fourth
deliverable, this Agreement may be negotiated or terminated in accordance
with Article 16.d. UCSD will promptly notify Tera of any change in the
status of anticipated extramural funding that will affect UCSD's ability
to cover the cost of any deliverables set forth above, or in any future
modifications to this Cooperative Agreement.
e. PAYMENT FOR MTA SYSTEM
Payments and delivery of goods and services ordered hereunder shall be made
incrementally as provided herein. UCSD will make payments to Tera based on
achievement of the Milestones set forth below. Achievement of the Milestone
will be considered "acceptance" by UCSD for purposes of invoicing and
payment. The amounts for which Tera shall xxxx UCSD, as described below,
include all applicable sales and use taxes associate with purchases
hereunder. Payments are due on the date that UCSD signs a Notice of
Acceptance (hereinafter "Acceptance Date", see Article 5.n) and will be
made as follows:
Deliverable Item Milestone $(incl tax)
---------------- -------- -----------
1. First Two Processors Pass Level 1 Acceptance Tests $1,340,000
2. Second Two Processors Pass Level 2 Acceptance Tests 910,000
3. Third Two Processors Pass Level 3 Acceptance Tests 1,000,000
4. Fourth Two Processors Pass Level 3 Acceptance Tests 750,000
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Total Payments $4,000,000
f. INVOICING
Tera shall submit invoices to UCSD at the time of acceptance, with payment
due within thirty (30) days from date of acceptance. Invoices shall be
mailed to UCSD at the billing address indicated on the face of the Purchase
Order or Change Order. Tera offers a Prompt Payment Discount of one half
percent (0.5%) for payments received within ten (10) days from date of
acceptance.
4. RIGHTS AND DUTIES OF UCSD
a. SITE PREPARATION
UCSD will undertake all reasonable site preparation as advised by Tera, and
at no cost to Tera.
b. PURCHASE OF ADDITIONAL TERA PRODUCTS AND SERVICES
UCSD may order additional Tera Products and Tera Services not included with
the purchase by UCSD of the MTA System, as listed in ATTACHMENT A. All such
Purchase Orders and Change Orders issued for the purposes of this Agreement
shall incorporate the terms of this Agreement. In the event that UCSD
purchases additional Tera Bundled Software, the parties will execute a
separate Tera Software License which will become an attachment to this
Agreement. The Tera Software License agreement is attached to this
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Agreement and incorporated herein as ATTACHMENT B.
c. REPORT ON EVALUATION
UCSD agrees to evaluate Tera Products, including hardware architecture,
operating system, programming environment, compilers and software tools
provided by Tera under this Agreement. UCSD agrees to consult with Tera in
setting priorities for evaluation, and to provide feedback from its
evaluations in periodic meetings to be scheduled by agreement of the
parties. UCSD agrees to provide written reports to Tera where appropriate.
UCSD agrees to monitor Tera and Industrial Participant use and to include
such information in periodic reports.
d. APPLICATIONS PORTING
UCSD agrees to port applications software selected by UCSD to Tera's system
in order to test and demonstrate such selected applications with Tera's
assistance.
e. ACCESS BY TERA
UCSD agrees to provide reasonable access (both direct physical and remote
access) to Tera Products by Tera employees during regular business hours.
UCSD agrees to establish limited accounts for such Tera employees for the
purposes of software development, testing and benchmarking. Upon request,
UCSD will provide reasonable access to Tera for the purpose of customer
demonstrations, provided that such demonstrations do not interfere with
UCSD's scheduled use of Tera Products. All such access by Tera will be
subject to UCSD's security restrictions, and UCSD's scheduled use of Tera
Products. It is estimated that Tera's access to Tera Products for all
purposes will average not more than twenty percent (20%) of available system
resources through September 30, 1997, and not more than ten percent (10%) of
available system resources thereafter.
f. APPROVAL AND ACCESS BY THIRD PARTIES
UCSD agrees to work with Tera to identify and invite Industrial Participants
and independent software vendors to use and evaluate Tera Products provided
to UCSD under this Agreement. Tera may share its allocation of available
Tera system resources with Tera-designated Industrial Participants, Tera
consultants, and independent software vendors, provided that no user will be
granted Privileged Access from remote sites. UCSD reserves the right to
limit the number of persons and the overall access time as necessary to
assure that such use will not interfere with UCSD's obligations to the
National Science Foundation and any other sponsors of this project. UCSD
reserves the right to determine whether such access shall be permitted in
consideration for access and usage fees, and in the event that such fees are
imposed, subject to UCSD's obligations to sponsors, UCSD shall retain 100%
of such revenue. Notwithstanding the above, all such access, use and
evaluation by third parties must comply with applicable University
regulations permitting activities leading to the extension of knowledge or
to increased effectiveness in teaching, but not tests, studies or
investigations of a purely commercial character, unless it can be shown
conclusively that satisfactory facilities for such services do not exist
elsewhere. Tera further acknowledges that any such use must be in
conformance with the limitations
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or restrictions imposed on UCSD by governmental or other sponsors of the
project.
5. RIGHTS AND DUTIES OF TERA
a. COST
In consideration for the rights granted to Tera by UCSD hereunder, Tera
agrees to sell the MTA System to UCSD hereunder at costs specified on the
face page of Purchase Order and Article 3.e.
b. DELIVERY OF TERA MTA SYSTEM
Tera agrees to exercise its best efforts to deliver the Tera MTA System
provided under this Agreement in accordance with the Initial Estimated
Delivery Dates specified in Article 3.c., that is, within six months of the
date UCSD issues Purchase Orders or change orders confirming availability of
funding. In the event that timely delivery cannot be accomplished, Tera will
notify UCSD in writing no later than thirty (30) days prior to the Initial
Estimated Delivery Date. In such notice, Tera will propose alternative
delivery date(s) and will propose specific consideration to UCSD in exchange
for UCSD's acceptance of a revised delivery date (for example, a price
reduction or additional Tera Products or Services). UCSD reserves the right,
in lieu of accepting Tera's proposal for a revised delivery date(s) to
terminate this Agreement pursuant to Article 16.b.
c. LOAN OF TWO PROCESSORS
Both parties acknowledge that at the time this Agreement is entered into,
UCSD does not have all committed funding listed in Article 3.a and Article
3.c for a total of eight processors. Tera will use its best efforts to
provide the fourth two processors (deliverable item #4) to UCSD on a no-cost
loan basis for the initial term of this Agreement, in the event that funding
does not become available by the Estimated Purchase Order date of 9/30/97.
Tera will retain title to all equipment loaned to UCSD hereunder.
d. INSTALLATION AND TRAINING
Tera agrees to provide, at no cost to UCSD, all installation services and
staffing required to install Tera Products delivered to UCSD hereunder
promptly and successfully. Tera agrees to provide required training of
designated UCSD staff to operate all Tera Products provided hereunder,
including training materials, manuals, etc. Tera agrees to meet with UCSD
designated personnel at such times as reasonably requested to troubleshoot
problems which may arise in the course of installation and operation of
Tera Products, and to take reasonable measure as recommended by UCSD to
resolve such problems.
e. SITE PREPARATION INFORMATION
Tera will provide UCSD with mechanical, electrical and communications site
planning information no later than ninety (90) days before estimated
delivery of Tera Products. Tera agrees to provide ongoing site preparation
consulting such that UCSD's site will be ready to receive Tera Products on
the delivery date. Tea will make a final site inspection prior to shipment
of Tera Products, if appropriate. Tera will advise UCSD if the site is not
ready and will document what actions are necessary to complete site
preparation. All
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necessary site preparation will be undertaken at the sole expense of UCSD.
f. WARRANTY AND MAINTENANCE OF TERA MTA SYSTEM AND BUNDLED SOFTWARE
Tera warrants that all Tera Products and all Tera Bundled Software provided to
UCSD as part of the MTA System shipped to UCSD shall be free from defects in
material and workmanship and shall be in conformance with Tera's specifications
for a period of one (1) year from Acceptance Date of each specific Tera Product
or item of Tera Bundled Software ("Initial Warranty Period"). Tera shall
provide at no additional cost to UCSD, all maintenance and fixes to Bundled
Software to enable performance according to Tera's software specifications. In
addition, Tera shall provide all upgrades of Bundled Software developed during
the Initial Warranty Period to UCSD at no additional cost. Tera shall replace
or repair any defective Tera Products or components of the Tera MTA System
during the Initial Warranty Period and any subsequently agreed-upon maintenance
period. Tera shall have no obligation under this Article to repair or replace
Tera Products or Bundled Software when the defect results from accident,
disaster, neglect, abuse, misuse, transportation, or alterations other than by
Tera personnel or as approved by Tera. Following expiration of the Initial
Warranty Period for each item of the Tera MTA System and Bundled Software, UCSD
may elect to extend warranty and maintenance services for each Tera Product or
Bundled Software item at a price to be agreed upon by the parties.
g. UPGRADES OF TERA PRODUCTS
During the Initial Warranty Period (as defined above), Tera agrees to provide
UCSD, at no additional charge, with upgrades of Tera Products, including
peripheral equipment received by UCSD hereunder. Following expiration of the
Initial Warranty period, and in consideration for the rights granted to Tera
hereunder, Tera agrees to sell all upgrades of Tera Products, as itemized in
Attachment A. The prices listed in Attachment A are for information purposes
only; the parties will negotiate prices and discounts at the time order(s) are
placed.
h. PROVISION OF WARRANTY AND MAINTENANCE OF TERA PRODUCTS
Tera agrees to provide twelve (12) person-months of on-site support from a
qualified technician for all necessary repair, replacement and maintenance
service on Tera Products during the Initial Warranty Period at no charge to
UCSD. Tera agrees to also provide telephone support to UCSD on an as-needed
basis during regular business hours.
i. SPARE PARTS
Tera agrees to maintain sufficient stock of spare parts to provide prompt
maintenance service on any Tera Products provided hereunder, during the period
of this Agreement, and any agreed-upon extended warranty, maintenance and
Service period. A sufficient stock of spare parts is that which will enable Tera
to effect regular maintenance on Tera Products and to repair or replace any
failed component of such products within a reasonable response and repair time.
j. LIMITATION OF WARRANTY
UCSD's exclusive remedy for Tera's breach of the foregoing warranties shall be
Tera's
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replacement of repair of Tera MTA System, or Tera Bundled Software, or Tera
Products which do not perform in conformance to Tera specifications. THE
FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OR USAGE FOR A
PARTICULAR PURPOSE.
k. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
l. IDENTIFICATION OF INDUSTRIAL PARTICIPANTS
Tera agrees to work jointly with UCSD to promote participation in the Agreement
by Industrial Participants, and where appropriate, independent software
vendors. Tera shall identify such proposed third parties, and obtain approval
from UCSD prior to making commitments to any proposed third parties.
m. ACCEPTANCE TESTS
Tera agrees to work jointly with UCSD to design and implement appropriate
tests of the deliverables provided by Tera hereunder. The parties will agree
to the specific testing to be performed at each level, and will agree as to
what constitutes success in meeting the tests. Tera agrees to perform the
agreed-upon acceptance tests on Tera Products, and to make such adjustments,
fixes, repairs, replacements as necessary to enable the Tera Product(s) to
function satisfactorily and to pass the appropriate Acceptance Test.
Acceptance tests shall become progressively more demanding, and, subject
to agreement upon final details of each level, shall be as follows:.
Level 1 Acceptance Tests will be conducted on the first two processors,
and shall require successful installation and running of Tera
diagnostics on site at San Diego.
Level 2 Acceptance Tests will be conducted on the first four
processors, and shall require successful running of two of the
following three applications, to be jointly agreed upon by Tera
and UCSD: AMBER, GAMESS OR RNAFOLD.
Level 3 Acceptance Tests will be conducted on the full six processor,
(or full eight processor system) and shall require successful
execution of all three above applications simultaneously for
eight (8) hours with no system interruptions.
n. ACCEPTANCE DATE AND TRANSFER OF TITLE
Upon successful completion of the appropriate level of Acceptance Tests, Tera
will provide UCSD a Notice of Acceptance. The date on which UCSD signs the
Notice of Acceptance, ("Acceptance Date"), will be considered the first day of
the Initial Warranty Period on the Tera MTA System, or part thereof. Title and
risk of loss will transfer to
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UCSD at the Acceptance Date, and UCSD will retain title to all Tera
Products for which a Notice of Acceptance has been executed by UCSD.
Tera warrants that UCSD shall acquire good title to Tera Products
purchased hereunder free and clear of all liens, claims, and
encumbrances. Notwithstanding the above, Tera will retain title to any
processors loaned to UCSD pursuant to Article 5c.
6. PROJECT MANAGEMENT AND NOTICES
a. UCSD PERSONNEL
UCSD's Project Manager is Xx. Xxxxx Xxxxxxxx who shall be responsible
for all technical and operational matters relating to this Agreement.
UCSD's Contract Officer is Xxxx Xxxxx who shall be responsible for any
formal modifications to this Agreement.
Xx. Xxxxx Xxxxxxxx Xxxx Xxxxx
Associate Director Contract Officer
Center for Advanced Computational Purchasing Department
Science and Engineering University of California,
University of California, San Diego San Diego
0000 Xxxxxx Xxxxx 0000 Xxxxxx Xxxxx
Xx Xxxxx XX 00000-0000 Xx Xxxxx XX 00000-0000
Phone: 000 000-0000 Phone: 000 000-0000
Fax: 000 000-0000 Fax: 000 000-0000
e-mail: xxxxxxxxx@xxxx.xxx e-mail: xxxxxx@xxxx.xxx
b. TERA PERSONNEL
Tera's Project Manager is Xxxxxxx X. Xxxxxxx, Director New Business
Development, who shall be responsible for all technical, operational
matters relating to this Agreement. Tera's Contractual Officer if Xxxxx
Xxxxxxxx, President and Chief Executive Officer, who shall be
responsible for all contractual matters relating to this Agreement.
Mr. Xxxxxxx Xxxxxxx Xx. Xxxxx X. Xxxxxxxx
Director, New Business Development President and CEO
Tera Computer Company Tera Computer Company
0000 Xxxxxxxx Xxxxxx X 0000 Xxxxxxxx Xxxxxx X
Xxxxxxx XX 00000 Xxxxxxx XX 00000
Phone: 000 000-0000 Phone: 000 000-0000
Fax: 000 000-0000 Fax: 000 000-0000
e-mail: xxxxxxx@xxxx.xxx e-mail: xxx@xxxx.xxx
c. NOTICES
All communications and notices between the parties concerning this
Agreement shall be deemed to be sufficiently made on the date sent to
the other party via first class mail, facsimile receipt acknowledged, or
with the use of electronic mail and sent or addressed to the party's
representatives designated above.
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7. CONFIDENTIALITY AND NON-DISCLOSURE
a. PROJECT PROPRIETARY INFORMATION
"Project Proprietary Information" means any and all information which is: a)
associated with the items in this Agreement or attachments hereto (including
Attachment B, License Agreement and Schedule A) disclosed by Tera to UCSD
electronically, visually, in a written document or other tangible form; or
b) provided by Tera to UCSD in writing, or reduced to writing within ten (10)
days of oral disclosure, and marked "Project Proprietary Information". UCSD
agrees to exercise reasonable efforts not to disclose or otherwise make Project
Proprietary Information available to any third party.
b. OTHER PROPRIETARY INFORMATION
"Other Proprietary Information" means such Tera proprietary or confidential
information not associated with the work under this Agreement, whether in
electronic, documentary or other tangible form, but not including the Project
Proprietary Information to which UCSD has rightful access hereunder. In the
course of work performed by UCSD under this Agreement, UCSD may have an
opportunity to gain access to Other Proprietary Information. Tera agrees to
exercise reasonable efforts to protect Other Proprietary Information from
intentional or inadvertent disclosure to UCSD. UCSD agrees to refrain from
attempting to access such Other Proprietary Information, and in the event that
UCSD inadvertently gains access to Other Proprietary Information, UCSD agrees
not to examine, use, copy, or keep such Other Proprietary Information without
the consent of Tera, and to return it promptly to Tera.
c. EXCEPTIONS
Notwithstanding the above, UCSD shall have no liability or obligation to Tera
for, nor be in any way restricted in its disclosure, marketing or use of
Project Proprietary Information or Other Proprietary Information which:
i) is already in the possession of UCSD from a third party; or
ii) is or becomes publicly known through no wrongful act of UCSD; or
iii) is received lawfully from a third party without restriction and
without breach of this Agreement; or
iv) is disclosed pursuant to an enforceable order of a court of
competent jurisdiction, or pursuant to written authorization
from Tera to UCSD.
8. PUBLICATIONS, ANNOUNCEMENTS AND USE OF NAMES
a. PUBLICATIONS
Subject to the provisions of Article 9 on disclosure of patentable
inventions, the parties shall have the right to publish or otherwise
present the results of evaluations and findings arising from performance
hereunder, provided however, that advance copies of such proposed
publications or presentations will be provided to the other party
sufficiently in advance to permit the other party to comment. Authorship
of all such publications and presentations will be determined by
generally accepted academic publishing principles.
b. ANNOUNCEMENTS
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The parties agree that it may be appropriate and desirable to make a
public announcement or issue a press release regarding the existence and
purpose of this Agreement. Unless required to applicable public
disclosure law, University policy, or the terms of applicable sponsored
contract or grant, the parties agree that the specific terms and
conditions of this Agreement shall not be publicly announced. Neither
party shall use the name of the other party in any public announcement
or press release, or any disclosure not required as set forth above,
without the prior written approval of the other party. The parties agree
to consult with each other, and to permit each other prior review of any
proposed public announcements regarding this Agreement.
c. USE OF NAMES
Neither party may use the name, trademark(s) or trade name(s) of the
other party, directly or indirectly, in connection with any product,
service, promotion, publication or public announcement without the prior
written approval of the other party.
9. INVENTIONS, PATENTS AND COPYRIGHTS
a. DEFINITIONS
i. "JOINT INTELLECTUAL PROPERTY" as used hereunder means
individually and collectively all inventions,
improvements, or discoveries and all works of
authorship, excluding articles, dissertations, theses,
and books, whether or not patentable or copyrightable
which are generated by one or more employees of UCSD and
one or more employees of Tera in the performance of work
conducted under this Agreement.
ii. "TERA SOLE INTELLECTUAL PROPERTY" as used hereunder
means individually and collectively all inventions,
improvements, or discoveries and all works of
authorship, excluding articles, dissertations, theses,
and books, whether or not patentable or copyrightable
which are generated solely by one or more employees of
Tera in the performance of work conducted under this
Agreement.
iii. "UNIVERSITY SOLE INTELLECTUAL PROPERTY" as used
hereunder means individually and collectively all
inventions, improvements, or discoveries and all works
of authorship, excluding articles, dissertations,
theses, and books, whether or not patentable or
copyrightable, which are generated solely by one or more
employees of UCSD in performance of the work conducted
under this Agreement.
b. OWNERSHIP OF INTELLECTUAL PROPERTY
All rights and title to University Sole Intellectual Property
belong to UCSD. All rights to Tera Sole Intellectual Property
belong to Tera. All rights to Joint Intellectual Property shall
belong jointly to both parties. The parties agree to negotiate
in good faith the disposition of rights, including copyright,
patents and licensing, to Join Intellectual property, such
disposition taking into consideration the relative contributions
of the parties.
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c. LICENSE TO INTELLECTUAL PROPERTY
The parties agree to provide each other a perpetual non-exclusive
royalty-free license to use, and to sublicense others to use all
Intellectual Property (including Joint Intellectual Property, Tera Sole
Intellectual Property, and University Sole Intellectual Property),
except when one party is prevented from offering such rights to the
other, under the terms of contracts or grants awarded by third parties,
including governmental and non-governmental sponsors of the work.
d. DISCLOSURE OF INVENTIONS
Subject to restrictions which may be imposed on Tera by applicable third
parties, Tera shall promptly disclose to UCSD in confidence each
patentable or copyrightable Tera Sole Intellectual Property and Joint
Intellectual Property, including date of invention, named inventors,
title and a brief description of the invention. Subject to restrictions
which may be imposed on UCSD by applicable extramural research
sponsor(s), UCSD shall promptly disclose to Tera each patentable or
copyrightable University Sole Intellectual Property and Joint
Intellectual Property, including date of invention, named inventors,
title and a brief description of the invention. The parties agree to
maintain such patentable invention(s) in confidence for a period of time
not to exceed ninety (90) days to permit a United States patent
application to be filed thereon by the Inventor. Each party agrees to
take any action reasonably requested by the other party to evidence,
obtain, perfect or maintain the rights of such party to any Intellectual
Property.
10. INDEMNIFICATION
Each party shall defend, indemnify and hold harmless the other party,
its officers, agents and employees from and against any and all claims,
actions, damages, costs, liability or expenses (including reasonable attorney
fees) resulting from injury to any person (including death) or damage to
property arising out of the performance of this Agreement, but only in
proportion to, and to the extent to which such injury or property damage is due
to the negligence or intentional misconduct of the indemnifying party, its
employees, agents and subcontractors.
11. INDEMNITY AGAINST INFRINGEMENT
Tera agrees to indemnify and hold harmless UCSD, its subsidiaries,
third parties and end users, from any liability, damage or expense, including
but not limited to legal expenses, arising out of a claim of U.S. patent
infringement, copyright infringement, or misappropriation of trade secrets
based solely upon the use or sale of Tera Products and/or Tera Bundled
Software. Tera agrees to defend or settle at Tera's expense, all suits or
proceedings arising out of any of the foregoing, provided that UCSD shall give
Tera prompt written notice of all suits or threats of suit against UCSD, its
subsidiaries, third parties and end users. In any event, UCSD at its own
expense, shall have the right to participate in the defense of any such action
through UCSD's General Counsel. If any item is held to be an infringement or
misappropriation for which UCSD is indemnified by Tera, and its use is
enjoined, Tera shall:
a. procure for UCSD and its customers the right to utilize the Tera
Product and/or
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Tera Bundled Software granted herein; or
b. replace or modify it so it becomes non infringing (without
compromising UCSD's intended use of said Tera products).
If neither of the foregoing is feasible, with the approval of UCSD,
Tera shall remove said Tera Products and/or Tera Bundled Software and refund
the purchase price of the transportation and installation and site preparation
cost thereof less depreciation. Tera will not be liable to the extent the
infringing item has been modified by any of the parties indemnified hereunder
and such modification is the cause of any such infringement or
misappropriation, or if the infringement is due to the combination of the Tera
Product with a product sold or licensed by UCSD hereunder.
12. INDEPENDENT CONTRACTOR
Each party's relationship to the other shall be that of an independent
contractor. Personnel hired by one party shall be deemed employees of said
party and shall not for any purpose be considered employees or agents of the
other party. Each party assumes full responsibility for the actions of its
personnel while performing services pursuant to this Agreement and shall be
solely responsible for their supervision, daily direction and control, payment
of salary (including withholding of income taxes and social security), Worker's
Compensation and disability benefits. The manner and means through which the
work under this Agreement will be accomplished are entirely the responsibility
of the respective parties hereto.
13. FORCE MAJEURE
Neither of the parties shall be liable in damages or have the right to
terminate for any delay or default caused by conditions beyond its control,
including but not limited to, acts of God, war, insurrection, strikes, fires,
floods, work stoppages and embargoes, and the inability of suppliers to furnish
necessary components.
14. COMPLIANCE WITH LAWS
Each party will comply with all applicable federal, state and local
laws, regulations and ordinances including, but not limited to, the regulations
of the U.S. Government relating to export and re-export of software and
technical data. UCSD agrees that any software and technical data provided under
this Agreement may be subject to restrictions under the export control laws and
regulations of the United States, including but not limited to the U.S. Export
Administration Act and its regulations. UCSD hereby gives written assurance
that, unless authorized by appropriate U.S. Government license or regulations,
neither software nor technical data provided by Tera under this Agreement, nor
the direct product thereof, shall be exported, directly or indirectly, to
prohibited countries or nationals thereof. UCSD agrees that it is responsible
for obtaining required government documents and approvals prior to export of
any commodity, machine, software, or technical data.
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15. ASSURANCE OF PERFORMANCE AND DISPUTES
a. ASSURANCE OF PERFORMANCE AND DISPUTES
Uniform Commercial Code (UCC) Section 2-609 is incorporated herein by this
reference. The University has the right to adequate assurance of performance as
provided under UCC 2-609.
b. DISPUTES
If either party believes there is a dispute arising from the administration or
performance of this Agreement, either fiscal or non-fiscal, the party shall
notify the other party's contractual contact in writing and shall appeal to the
University's Material Manager, at the University Purchasing Office address. All
disputes will be resolved by following the procedural guidelines and steps
required by the Regents of the University of California, and Business and
Finance Bulletin BUS 43, Material Management.
16. TERMINATION
a. UPON BREACH
In the event that either party is in breach of any of its obligations
hereunder, the other party will give prompt written notice detailing the nature
of the breach. The breaching party shall have thirty (30) days from such notice
of breach to take whatever action is necessary to cure the breach. In the event
that the breach is 1) not cured within the thirty (30) day period; or 2) the
parties do not agree in writing on an extension of the period to cure, this
Agreement will terminate at the end of the thirty (30) day period.
b. REMEDIES FOR BREACH
If this Agreement is terminated by either party for breach pursuant to Article
15.a., UCSD shall, at its option, either return or pay for all Tera Products
delivered, and will pay Tera for all Tera Services received prior to date of
termination. Further:
i. If this Agreement is terminated by UCSD for breach by Tera, UCSD
will not be obligated to pay Tera for Tera Products (including
processors) ordered but not yet received as of date of termination.
ii. If this Agreement is terminated by Tera for breach by UCSD pursuant
to Article 15.a., UCSD shall pay for all Tera Products delivered,
and Tera's remedy for Tera Products (including processors) ordered
but not yet received as of date of termination will be as provided
under UCC Section 2-706 (l), Seller's Resale Including Contract for
Resale.
c. FOR CAUSE - LATE DELIVERY
TIME IS OF THE ESSENCE IN THE PERFORMANCE OF THIS AGREEMENT. UCSD reserves the
right to terminate this Agreement upon thirty (30) days prior written notice to
Tera for "Late Delivery". "Late Delivery shall be delivery which is not made
within six months of issuance of a PO or change order, or any extension of this
period requested by Tera and granted by UCSD by written amendment to this
Cooperative Agreement or Purchase Order/Change Order. Such termination will not
be considered as termination for breach, and Articles 15.a, and 15.b. shall
not be applicable. In the event of termination for Late Delivery, UCSD shall,
at its option, either return
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or pay for all Tera Products delivered, and pay Tera for all Tera Services
received prior to date of termination. Upon notice of termination, Tera will be
relieved of its obligation to deliver Tera Products and Services not received
by UCSD prior to notice of termination, and UCSD will be relieved of its
obligation to accept or pay for Tera Products and Services not received by UCSD
prior to notice of termination.
d. FOR CAUSE - UNAVAILABILITY OF FUNDS
Pursuant to Article 3.d. above, UCSD reserves the right to terminate this
Agreement upon thirty (30) days prior written notice to Tera if pending
extramural funding are not available to UCSD and no alternative sources of
funding become available. Such termination will not be considered as
termination for breach, and Articles 16.a, and 16.b. shall not be applicable.
In the event of termination for unavailability of funds, UCSD shall pay for all
Tera Products delivered, and all Tera Services received prior to date of
termination. Upon notice of termination, Tera will be relieved of its
obligation to deliver Tera Products and Services not received by UCSD prior to
notice of termination, and UCSD will be relieved of its obligation to accept
or pay for Tera Products and Services not received by UCSD prior to notice of
termination. Notwithstanding this right to terminate for unavailability of
funds, UCSD intends to issue Purchase Orders or Change Orders for Deliverable
Items as specified in Article 3.c. above only upon confirmation by UCSD that
funding is available for each deliverable before issuance of a Purchase Order
or Change Order. Accordingly, once Purchase Orders or Change Orders have been
issued for specified Deliverable Items, UCSD may not cancel the specific
Purchase Order or Change Order for unavailability of funds.
17. SURVIVABILITY
All rights and duties of the parties shall terminate upon the effective
date of termination or expiration of this Agreement, with the exception of
Articles 7, 9, 10 and 11 which shall survive termination.
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18. SUCCESSORS AND ASSIGNS
All the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their successors and assigns
and legal representatives. Neither party shall assign this Agreement or any
rights hereunder, without the prior written consent of the other party.
19. WAIVERS, AMENDMENTS, OR MODIFICATIONS
The waiver, amendment or modification of any provision of this Agreement
or any right, power or remedy hereunder shall not be effective unless in
writing and signed by the contracting officer of the party against whom
enforcement of such waiver, amendment or modification is sought. No failure or
delay by either party in exercising any right, power, or remedy with respect to
any of the provisions of this Agreement shall operate as a waiver thereof.
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20. GOVERNING LAW, SEVERABILITY
The validity, construction and performance of this Agreement and the legal
relations among the parties to this Agreement shall be governed by and
construed in accordance with the substantive laws of the State of California.
If any part, term or provision of this Agreement is declared unlawful or
unenforceable by judicial determination or performance, the remainder of this
Agreement shall remain in full force and effect.
21. ENTIRE AGREEMENT, ORDER OF PRECEDENCE
The foregoing terms and conditions, together with the attachments are the
complete and exclusive expression of the Agreement between the parties,
superseding any prior agreements, written or oral, notwithstanding anything
contained in any documents issued by either party. In the event of any
inconsistency or conflict in the provisions of these documents, the order of
precedence shall be:
a. Referenced UCSD Purchase Order
b. This Cooperative Agreement
c. Attachments to this Agreement, in alphabetical order
Accepted on behalf of Accepted on behalf of
Tera Computer Company The Regents of the University of California
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxx
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Name: Xxxxx X. Xxxxxxxx Name: Xxxx Xxxxx
Title: President & CEO Title: Business Contracts Administrator
Date: November 8, 1996 Date: November 6, 1996
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