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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB/A
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended
September 30, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to .
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Commission file number 0-26820
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TERA COMPUTER COMPANY
(Exact name of registrant as specified in its charter)
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WASHINGTON 93-0962605
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2815 EASTLAKE AVENUE EAST
SEATTLE, WA 98102
(206) 325-0800
(Address of principal executive offices)
(Registrant's telephone number, including area code)
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Check whether the issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes X No
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As of September 30, 1996, there were 3,936,843 shares of the Company's
Common Stock, par value $0.01 per share, and 2,360,000 shares of the Company's
preferred stock, par value $0.01 per share, were outstanding.
Transitional Small Business Disclosure Format (check one): Yes No X
--- ---
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This amendment modifies the placement of the "Confidential Treatment Requested"
legend on pages 2-4 of Attachment A to Exhibit 10.
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SIGNATURES
In accordance with the requirements of the Securities Exchange Act of
1934, the registrant caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TERA COMPUTER COMPANY
Date: December 16, 1996 By: JAMES E. ROTTSOLK
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James E. Rottsolk
Chief Executive Officer
and Chief Financial Officer
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EXHIBIT INDEX
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Exhibit
Number Description Page
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10 Cooperative Agreement between The Regents
of the University of California, University of
California, San Diego, Office of Advanced
Scientific Computing and Tera Computer
Company, dated November 8, 1996* 5
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11 Computation of Earnings (Loss) Per Share **
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27 Financial Data Schedule **
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* Confidential Treatment Requested
** Incorporated by reference to Form 10-QSB Report for the quarter ended
September 30, 1996 (File N. 0-26820)
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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
9500 Gilman Drive
La Jolla CA 92093-0411
And
Tera Computer Company
2815 Eastlake Avenue
Seattle WA 98102-3057
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 bill 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:
<TABLE>
<CAPTION>
Deliverable Item Milestone $(incl tax)
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<S> <C> <C>
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
</TABLE>
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 Dr. Wayne Pfeiffer who shall be responsible
for all technical and operational matters relating to this Agreement.
UCSD's Contract Officer is Anne Mayer who shall be responsible for any
formal modifications to this Agreement.
Dr. Wayne Pfeiffer Anne Mayer
Associate Director Contract Officer
Center for Advanced Computational Purchasing Department
Science and Engineering University of California,
University of California, San Diego San Diego
9500 Gilman Drive 9500 Gilman Drive
La Jolla CA 93093-0534 La Jolla CA 92093-0914
Phone: 619 534-5120 Phone: 619 534-4437
Fax: 619 534-5056 Fax: 619 534-5803
e-mail: [email protected] e-mail: [email protected]
b. TERA PERSONNEL
Tera's Project Manager is Richard M. Russell, Director New Business
Development, who shall be responsible for all technical, operational
matters relating to this Agreement. Tera's Contractual Officer if James
Rottsolk, President and Chief Executive Officer, who shall be
responsible for all contractual matters relating to this Agreement.
Mr. Richard Russell Mr. James E. Rottsolk
Director, New Business Development President and CEO
Tera Computer Company Tera Computer Company
2815 Eastlake Avenue E 2815 Eastlake Avenue E
Seattle WA 98102 Seattle WA 98102
Phone: 206 325-0800 Phone: 206 325-0800
Fax: 206 325-2433 Fax: 206 323-1318
e-mail: [email protected] e-mail: [email protected]
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
12
<PAGE> 13
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.
- --------------------------------------------------------------------------------
13
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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
- --------------------------------------------------------------------------------
14
<PAGE> 15
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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11/6/96
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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11/6/96
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.
-----------------
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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11/6/96
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/ James E. Rottsolk By: /s/ Anne Mayer
---------------------------- ------------------------------------
Name: James E. Rottsolk Name: Anne Mayer
Title: President & CEO Title: Business Contracts Administrator
Date: November 8, 1996 Date: November 6, 1996
________________________________________________________________________________
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November 4, 1996 (FINAL)
Attachment A
Initial Tera MTA System and Upgrade Options
The prices quoted to UCSD below are discounted from Tera's list
prices for equivalently configured systems in recognition of the
value to Tera of this Cooperative Agreement.
INITIAL MTA SYSTEM:
<TABLE>
<CAPTION>
Model No. of Memory UCSD UCSD
Number Processors Capacity Price* Maintenance**
$ $
<S> <C> <C> <C> <C>
MTA-8C-2E 2 2GB 1,340,000 43,000
MTA-8C-4E 2 2GB 910,000 43,000
MTA-8C-6E 2 2GB 1,000,000 43,000
MTA-8C-8E 2 2GB 750,000 43,000
Total 8 8GB 4,000,000 172,000
</TABLE>
* These prices are tailored to UCSD's anticipated incremental funding and are
for special Tera MTA configurations that are not available as standard products.
This UCSD price includes hardware, software, installation charges, on-site
support, training, warranty, and first-year maintenance charges. No peripherals
are included in the UCSD price. Requisite proof of appropriate software
licenses is required before Bundled Software can be shipped.
** MTA-8C-2E, 4E, 6E, and 8E maintenance charges begin 1 year following the
Acceptance Date of each of these configurations.
The configurations listed above include binary versions only of the
following Tera Bundled Software:
TOS -- Tera operating system
f77,cc,c++ -- Tera Fortran 77, C, and C++ compilers
tdb -- Tera source level debugger
-----------------------------------------------
Cooperative Agreement between Tera and UCSD
1
<PAGE> 20
November 4, 1996 (FINAL)
UPGRADE OPTIONS
<TABLE>
<CAPTION>
UPGRADED NO. OF ADDITIONAL UCSD TERA'S
MODEL ADDITIONAL MEMORY UPGRADE LIST PRICE
NUMBER PROCESSORS CAPACITY PRICE* MAINTENANCE**
$ $
<S> <C> <C> <C> <C>
Confidential Confidential
MTA-16C-16E 8 8GB Treatment Treatment
MTA-32C-32E 16 16GB Requested Requested
</TABLE>
* These UCSD upgrade prices are for special Tera MTA configurations that are
not available as standard products. UCSD upgrade prices include hardware,
software, installation charges, on-site support, training, and warranty. No
peripherals or maintenance support are included in the UCSD upgrade price.
Requisite proof of appropriate software licenses is required before Bundled
Software can be shipped.
** MTA-8C-16E, and 32E maintenance charges reflect Tera's anticipated annual
maintenance list prices for 16 and 32 processor systems.
The configurations listed above include binary versions only of the
following Tera Bundled Software:
TOS -- Tera operating system
f77, cc, c++ -- Tera Fortran 77, C, and C++ compilers
tdb -- Tera source level debugger
Optional Support
<TABLE>
<CAPTION>
Fee
<S> <C>
$
Confidential
Treatment
Requested
Additional on-site Tera software engineer
</TABLE>
______________________________________________
Cooperative Agreement between Tera and UCSD
2
<PAGE> 21
November 4, 1996 (FINAL)
Peripheral Equipment
<TABLE>
<CAPTION>
Part Price
Model/Option Number $ (see Note 1)
<S> <C> <C>
MAXIMUM STRATEGY STORAGE SERVERS
Gen5 XL1, 1 bank: 14-231-001 Confidential
94 GB(R5), 103 GB(RO) Treatment
no host interface adapters Requested
Gen5 L1, 1 bank: 14-231-0005 Confidential
30 GB(R5), 34 GB(RO) Treatment
no host interface adapters Requested
HOST INTERFACE ADAPTERS
HIPPI IPI-3 (32-bit) 12-221-0044 Confidential
HIPPI IPI-3 (64-bit) 12-230-0024 Treatment
Fibre Channel 12-221-0072 Requested
REDUNDANCY OPTION
XL-Redundancy 14-230-0026 Confidential
Treatment
Requested
CAPACITY EXPANSION OPTION
+ XL One Bank 14-230-0020 Confidential
94 GB(R5), 103 GB(RO) Treatment
Requested
+L One Bank 14-230-0022 Confidential
30 GB(R5), 34 GB(RO) Treatment
Requested
MAXIMUM STRATEGY UCSD SUPPORT
dataSURE
all configurations
Gen5 XL
3 months warranty included
+9 months 00-000-0006
+12 months 00-000-0012
monthly 00-000-0013
Gen5 L
3 months warranty included
+9 months 00-000-0014
+12 months 00-000-0015
monthly 00-000-0016
</TABLE>
Note 1:
Maximum Strategy, Inc Terms and Conditions of Sale apply
Prices subject to change without notice.
Prices effective as of January 15, 1996
________________________________________________
Cooperative Agreement between Tera and UCSD
3
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November 4, 1996 (FINAL)
PERIPHERAL EQUIPMENT (CONTINUED)
<TABLE>
<CAPTION>
PART PRICE ANNUAL MAINTENANCE
MODEL/OPTION NUMBER $ AGREEMENT
<S> <C> <C> <C>
PSITECH FRAME BUFFERS
HIPPI 8 bit Frame Buffer (2Kx2K) HFB360-08 Confidential Confidential
HIPPI 24 bit Frame Buffer (2Kx2K) HFB360-24 Treatment Treatment
HIPPI 24 bit Frame Buffer (2Kx2K) HFB360A-24 Requested Requested
Enhanced with audio & video capture capabilities
Field Upgrade Options
HFB360:
Color Upgrade HFB360-08 to 024 HFB360-CB Confidential Confidential
Treatment Treatment
Requested Requested
HFB360A:
Aux. Single HIPPI Port (Striper) HFB-ASH Confidential Confidential
HIPPI Expansion Double Wide Port HFB-HEB Treatment Treatment
Dual 16 bit Audio/Compression HFB-AUD Requested Requested
NTSC Capture Module HFB-NCM
RGB Capture Module HFB-RGB
D1 Video/AES3 Audio Capture Module HFB-DCM
MONITORS
21" Gray scale HFB-MON Confidential N/A
85-170kHz, 100-150ft L Portrait Treatment
High Brightness Monitor Requested
SOFTWARE LICENSES
HFB library (HFB360 Compatible) HFB-lib Confidential Confidential
Treatment Treatment
Requested Requested
CABLES
hippi Cable 1 Meter HFB-HC-1 Confidential N/A
HIPPI Cable 5 Meters HFB-HC-5 Treatment N/A
HIPPI Cable 25 Meters HFB-HC-25 Requested N/A
Monitor Cable (color) HFB-VC5 N/A
Monitor Cable (mono) HFB-VC5 N/A
MANUALS
1 set M-HFBlib Confidential N/A
M-HFB360-OM Treatment N/A
Requested
</TABLE>
Notes:
1. Customer contracts with PsiTech for Maintenance
2. PsiTech Terms and Conditions of Sale apply
3. HIPPI 2Kx1K Frame Buffer is also available.
________________________________________________
Cooperative Agreement between Tera and UCSD
4
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November 4, 1996, 10:42 AM (FINAL)
ATTACHMENT B
TERA COMPUTER COMPANY SOFTWARE LICENSE AGREEMENT
LICENSEE NAME AND ADDRESS: INSTALLATION SITE ADDRESS:
Center for Advanced Computational San Diego Supercomputer Center
Science and Engineering
University of California, San Diego
9500 Gilman Drive
La Jolla, CA 93093-0534
Attention: Dr. Wayne Pfeiffer
Associate Director
Anne Mayer
Contract Officer
1.0 DEFINITIONS
- ----------------
1.1 "Proprietary Information" means any and all information which is
a) associated with the items in Schedule A attached hereto disclosed by Tera
Computer Company ("Tera") to Licensee electronically, visually or in a document
or other tangible form; or b) provided by Tera to Licensee in writing, or
reduced to writing within ten (10) days of oral disclosure, and marked
"Proprietary Information". The items licensed as identified in Schedule A shall
be deemed Proprietary Information. All updates, upgrades, bug fixes, patches,
and derivative works associated with the items in Schedule A whether developed
by Tera or Licensee are "Proprietary". The term "Proprietary Information" shall
include any notes, extracts, analyses or materials prepared by Licensee which
are copies of or derivative works of the Proprietary Information or from which
the substance of the Proprietary Information can be inferred or otherwise
understood.
1.2 "Designated System and Site" means the System and location
identified in Schedule A on which the Software is licensed for use.
1.3 "Software" means the Tera Bundled Software and Documentation
provided hereunder as identified in Schedule A attached hereto, including all
updates, upgrades, bug fixes, patches and derivative works.
1.4 "Related Materials" means any and all materials provided by Tera
hereunder in connection with the items listed in Schedule A including, without
limitation, any flow charts, logic diagrams, schematics, program listings,
libraries, executables, source files, header files, data files, operating
instructions, user manuals
1
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November 4, 1996, 10:42 AM (FINAL)
and performance information, in whatever form, including machine readable
materials, whether or not specifically identified in the Exhibits.
1.5 "Technology" shall mean the Software, Related Materials, and other
Proprietary Information provided by Tera pursuant to this Agreement.
2. GENERAL: Licensee and Tera agree that the following terms and conditions
apply to the provision of Software as specified in the attached Schedule A.
Some Software may be owned in whole or in part by a third party. The
protections included in this license (including all reservations of rights and
limitations of liabilities) extend to Software provided under this Agreement by
both Tera and any third-party provider.
This Agreement becomes effective when it has been signed by both parties and
continues concurrently with the Cooperative Agreement. Upon termination of the
Cooperative Agreement, parties shall negotiate a Hardware/Software Maintenance
Agreement and a new Software License Agreement as appropriate.
3. LICENSE: Tera hereby grants, and Licensee accepts, a single,
non-transferable and non-exclusive license to use Software subject to all the
terms and conditions of this Agreement. No rights to sublicense or market the
Software are granted. All rights not specifically granted to Licensee by this
license shall remain in Tera.
The Software may be used by Licensee only on the equipment listed on Schedule A
and at the site specified above. Licensee may use the Software on other
equipment made by Tera while the equipment listed in Schedule A is not
operative, due to its malfunction. Licensee may duplicate the Software for
backup, archiving, or security, but all copyright or proprietary notices in the
original must be included in all copies or partial copies. Licensee shall not
clone, reverse assemble, or reverse compile any part of the Software for which
Licensee does not have source code access or adopt any part of the Software as
its own. Licensee shall not translate the Software into a computer language
different from the language in which it was provided to Licensee by Tera.
4. FORM OF CODE PROVIDED (SOURCE AND/OR BINARY): Licensee is licensed to use
only the format of the Software specified in the attached Schedule A.
5. MANUALS: Tera will provide on-line documentation for all applicable user
manuals at no additional charge. Licensee may order hard copies at then-current
prices.
2
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November 4, 1996, 10:42 AM (FINAL)
6. NON-DISCLOSURE:
--------------
(A) Software
Licensee acknowledges that the Software, and Related Materials are
proprietary products of and shall remain the property of Tera or its
suppliers. Licensee will not disclose or otherwise make available to any
third party any Software, or information contained therein, in any form,
except to its employees for purposes limited to and specifically related
to Licensee's use of the Software in accordance with this Agreement.
Licensee shall take appropriate action by instruction or signed
agreements with such employees to satisfy Licensee's obligations under
this Agreement.
Licensee's obligations of confidentiality and nondisclosure shall apply
to all forms of software received. Licensee shall maintain records of
the location of each original and copy of Software and the serial number
of the equipment on which it is used and shall allow Tera or Tera's
representative(s) access to those records on reasonable notice. This
obligation not to disclose the Software, and Related Materials is
ongoing and shall survive termination of this Agreement.
(B) Injunctive Relief
Because harm not adequately compensable might result from unauthorized
disclosure of confidential information, either party may seek injunctive
relief, without posting a bond, if the other party breaches its
obligations of nondisclosure under this Agreement.
(C) Exception
-------------
Notwithstanding the above, neither party shall have any liability or
obligation to the other for, nor be in any way restricted in, its
disclosure, marketing, or use of the Proprietary Information, Software,
or Related Materials, which:
a. are already in the possession of Licensee from a non-Tera source;
or
b. are or become publicly known through no wrongful act of Licensee;
or
c. are received lawfully from a third party without restriction and
without breach of this Agreement; or
d. are disclosed pursuant to an enforceable order of a court of
competent jurisdiction
Provisions of this Article shall survive any termination of this
Agreement.
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November 4, 1996, 10:42 AM (FINAL)
7. PATENT AND COPYRIGHT; Tera will indemnify Licensee as to any rightful
claim that the Software, or any part thereof (except software supplied
to Tera by X/Open Company Ltd.) constitutes an infringement of any
United States patent, copyright, or trade secret. To qualify for this
indemnity, however, Licensee must give Tera prompt notice of any such
claim and must cooperate fully with Tera's defense or settlement. If the
use of the Software, or any part thereof (except software supplied to
Tera by X/Open Company Ltd. and incorporated in the Software), is
enjoined, Tera will, at its own expense and at its option, either (A)
procure for Licensee the right to continue using the Software or the
infringing part thereof; (B) replace same with non-infringing
substitutes; (C) modify it so that it becomes non-infringing: or (D) if
Tera finds no commercially reasonable solution under (A), (B), or (C)
above, terminate the license of same at no cost to Licensee except for
charges accrued to such time as use is enjoined.
Tera shall not be liable to Licensee for any claim which is based upon
the use of the Software, or any part of it, in connection with
equipment, software, or devices not furnished by Tera, or in any manner
for which the Software was not designed, or where the Software has been
modified by or for Licensee.
The foregoing states the entire liability of Tera with respect to
infringements of patents, copyrights, or trade secrets by the Software.
Parts of the Software may have been patented or copyrighted by Tera or
its third-party provider. Patent or copyright notices may have been
included in the Software for protective purposes, and such notices shall
not be construed as causing publication of the Software.
When any extramural or third-party computer program materials are to be
disclosed by Licensee to Tera or used in conjunction with the Software
by Licensee, Licensee warrants that it has the right to make such
disclosure or use and agrees to indemnify and hold Tera harmless from
liability for patent and copyright infringement in connection therewith.
4
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November 4, 1996, 10:42 AM (FINAL)
8. THIRD-PARTY LICENSE: Some Software may require an additional license
from a third party. This requirement is noted on Schedule A. Licensee
agrees to obtain the license from the third party at Licensee's expense
and by separate agreement and so certify to Tera in writing, before
delivery of the affected Software.
9. GNU: Some Software is distributed in under the terms of the GNU General
Public License. This restriction is noted on Schedule A. Licensee agrees
to conform to the GNU General Public License for all affected Software.
10. CHARGES: First year Software maintenance is included in the price of
"Tera Products" (Tera MTA computer systems, upgrades and peripheral
equipment sold to Licensee). After one year, Licensee agrees to pay the
charges specified in Attachment A. In addition, Licensee shall pay (or
reimburse Tera for paying) all applicable sales and use taxes.
11. INVOICES, PAYMENTS, AND PRICE ADJUSTMENT: First year Software
maintenance charges are included in the price of Tera Products. After
one year from Designated System acceptance, invoices for monthly charges
will be issued monthly in advance and will be dated the first of the
month. Invoices for other charges negotiated by Tera with Licensee for
Software-related activities that are separate from this Agreement will
be issued as the charges are incurred. Charges due for a portion of a
month will be computed at the rate of one-thirtieth (1/30th) of the
monthly charge for each day. Licensee may prepay maintenance charges on
an annual basis and receive a five percent discount.
All invoices will be due and payable within thirty (30) days of the date
of invoice. Payment is considered made when good funds are received in
the account specified on the invoice.
If Licensee elects to renew this license for subsequent periods, after
the first year of charges, Tera may adjust charges upon ninety (90) days
written notice, but only once in any twelve (12) month period. The
adjusted prices will not exceed Tera's published prices in effect on the
date of the adjustment or the Southern California Cost of Doing Business
Index (formerly CPI) for the current period, whichever is less.
12. WARRANTY: Tera warrants that when it delivers the Tera Bundled Software,
the Software shall conform in all material respects to Tera's published
specifications when operated on the Computer specified on Schedule A for
a period of one (1) year from Acceptance Date (Initial Warranty Period).
Tera shall provide at no cost to Licensee, all maintenance and fixes to
Tera Bundled Software to enable performance according to Tera's software
specifications. Tera shall provide all upgrades of Tera Bundled Software
developed during the Initial Warranty Period to Licensee at no
5
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November 4, 1996, 10:42 AM (FINAL)
additional cost. This warranty will be extended at no additional cost to
Licensee for any period in which this License is renewed. Renewal of this
License in subsequent periods will extend the Warranty for the period covered
by the License.
Tera reserves the right to correct Documentation due to typographical or
clerical errors.
This warranty is given by Tera and not by any of its third-party suppliers.
Neither Tera nor any of its third-party suppliers warrants or guarantees the
results from use of the Software.
13. IMPLIED WARRANTIES, DISCLAIMER; INDEMNIFICATION: EXCEPT AS OTHERWISE
REQUIRED BY LAW, THE EXPRESS WARRANTY IN THE WARRANTY ARTICLE OF THIS AGREEMENT
IS TERA'S EXCLUSIVE WARRANTY AND IS IN LIEU OF ALL IMPLIED WARRANTIES,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
TERA'S MAXIMUM LIABILITY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT
SHALL BE THE REPLACEMENT OF TERA BUNDLED SOFTWARE.
LICENSEE IS RESPONSIBLE FOR THE SELECTION OF SOFTWARE TO ACHIEVE ITS INTENDED
RESULTS, USE OF SOFTWARE, AND THE RESULTS OBTAINED THEREFROM.
14. LIMITATION OF LIABILITY: TERA WILL NOT BE LIABLE IN ANY EVENT FOR ANY
CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
15. TERMINATION: This Agreement or the license of any Software may, prior to
commencement of charges, be terminated by the Licensee at no charge upon
written notice to Tera.
After commencement of charges, this Agreement or the license of any Software
may be terminated as follows:
(A) by the Licensee upon ninety (90) days written notice or
(B) by Tera for nonpayment by Licensee of any amount due under this Agreement,
which nonpayment continues for a period of ten (10) days; or
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November 4, 1996, 10:42 AM (FINAL)
(C) by either party upon thirty (30) days notice for non-performance by
the other party of any other material term or condition of this
Agreement or of any other contract between Licensee and Tera related to
the Software or the equipment for which it is licensed.
The license of any Software shall automatically terminate upon de-
installation of the equipment for which it is licensed.
Upon termination of this Agreement Licensee shall promptly return to
Tera all copies of the Software involved or certify in writing to Tera
that all copies have been destroyed, including all copies which Licensee
has modified and/or merged into other computer program material.
16. RELOCATION; EXPORT: The Technology, including technical data, are
subject to the U.S. Export Administration Act and its associated
regulations and may be subject to export regulations in other countries.
Licensee agrees to comply strictly with all such regulations and
acknowledges that it has the responsibility to obtain licenses if
Licensee exports or re-exports the Technology.
17. ASSIGNMENT: This Agreement and the rights granted and obligations
undertaken hereunder may not be transferred, assigned or delegated in
any manner by Licensee, but may be so transferred, assigned or delegated
by Tera upon written notice to Licensee.
18. NOTICES: Notices will be effective when received in writing and shall be
sent to the person and address designated on the signature page of this
Agreement or such other person or address as may have been furnished to
Licensee or Tera by notice according to this Article.
19. APPLICABLE LAW: This Agreement is made under and shall be governed by
and construed in accordance with the laws of the State of California,
U.S.A. excluding its choice of law provisions.
20. SURVIVAL OF AGREEMENTS: Notwithstanding the termination or completion of
this Agreement, all indemnities, warranties, and duties of
non-disclosure in this Agreement will continue in full force and effect
to the extent required for their full observance and performance.
7
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November 4, 1996, 10:42 AM (FINAL)
21. ENTIRE CONTRACT: The terms and conditions stated in this Agreement and
in the Schedule(s) constitute the complete and exclusive statement of
the Agreement between Licensee and Tera and supersede all prior oral
and written statements of any kind whatsoever made by either party or
their representatives. Any order form used by Licensee in connection
with this Agreement will be considered to have its pre-printed clauses
and statements deleted. Any waivers or amendments, to be effective, must
be in writing, signed by both parties.
LICENSEE: THE REGENTS OF Tera Computer Company.
THE UNIVERSITY OF CALIFORNIA, UCSD 2815 Eastlake Avenue East
Seattle, WA 98102-3027
BY /s/ Anne Mayer By /s/ James E. Rottsolk
-------------------------------- -----------------------------
Name Anne Mayer Name James E. Rottsolk
------------------------------ --------------------------
Title Business Contracts Admin. Title President and CEO
----------------------------- -------------------------
Date 11/6/96 Date November 8, 1996
------------------------------ ---------------------------
Notices to above Notices to above
------------------------ --------------------
Title_____________________________ Title__________________________
8
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November 4, 1996, 10:42 AM (FINAL)
SCHEDULE A
to the
Tera Computer Company Software License Agreement
Designated System: Tera MTA-8C-8E System, Serial #1
Site: San Diego Supercomputer Center (SDSC)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
SOURCE ANNUAL
OR BINARY MAINTENANCE
SOFTWARE ACCESS FEE
-------- --------- ------------
<S> <C> <C>
TERA OPERATING SYSTEM See Attachment A
TOS - Tera operating system and utilities Source and binary
(Licensee must provide requisite proof of
a current license to X/Open Company Ltd. UNIX)
TERA PROGRAMMING ENVIRONMENT See Attachment A
f77, cc, c++ - Tera Fortran 77, C, C++ Binary only
compilers and supporting libraries
tdb - Tera source level debugger (Licensee Binary only
must comply with GPL restrictions for
GNU-based software)
DOCUMENTATION See Attachment A
Tera Programming Guide on-line only
man pages on-line only
</TABLE>
Licensee: The Regents of the Tera Computer Company
University of California, UCSI) 2815 Eastlake Avenue East
Seattle, WA 98102-3027
By /s/ Anne Mayer By /s/ James E. Rottsolk
- -------------------------------- ------------------------------
Name Anne Mayer Name James E. Rottsolk
- -------------------------------- ------------------------------
Title Business Contracts Admin. Title President and CEO
- -------------------------------- ------------------------------
Date November 6, 1996 Date November 8, 1996
- -------------------------------- ------------------------------
9
