Distributorship Agreement - Polygen Corp. and Teijin Molecular Simulations Inc.
DISTRIBUTORSHIP AGREEMENT
April 1, 1992
between
POLYGEN CORPORATION
and
TEIJIN MOLECULAR SIMULATIONS INCORPORATED
<PAGE>
TABLE OF CONTENTS
Page
1. DEFINITIONS ................................................... 1
(a) "Agreement" .......................................... 1
(b) "Customer" ........................................... 2
(c) "Documentation" ...................................... 2
(d) "End User License Agreement" ......................... 2
(e) "PMSI Customers" ..................................... 2
(f) "Software" ........................................... 2
(g) "Subdistributor ...................................... 2
(h) "Sublicense" ......................................... 2
(i) "Territory" .......................................... 2
(j) "Trademarks" ......................................... 2
2. APPOINTMENT AND GRANT OF LICENSE .............................. 2
(a) Distributor License .................................. 2
(b) Limited Demonstration/Training/Support License ....... 3
(c) Documentation License ................................ 3
(d) Grant of Right to Sublicense ......................... 4
(e) General License Provisions ........................... 4
(f) Exclusivity .......................................... 5
3. ORDER PROCEDURE AND SHIPMENT AND DELIVERY TERMS ............... 6
(a) Orders ............................................... 6
(b) Shipping and Delivery ................................ 6
(c) Cancellation of Orders ............................... 7
(d) Localization and Shipment from Japan ................. 7
4. PRICES (LICENSING FEES) AND PAYMENT TERMS ..................... 7
(a) Licensing Fees ....................................... 7
(b) Taxes ................................................ 8
(c) Payment Schedule ..................................... 8
(d) Installation Fees .................................... 8
(e) Maintenance Fees ..................................... 8
(f) Discounts to Subdistributors and Customers ........... 9
(g) Hardware ............................................. 9
5. OBLIGATIONS AND FUNCTIONS OF THE COMPANY ...................... 9
(a) Management and Support of Distribution ............... 9
(b) Relationship with Subdistributors .................... 9
(c) Adequate Company Facilities and Customer Satisfac-
tion ................................................. 10
(d) Promotion and Marketing .............................. 10
(e) Contract Services .................................... 10
(f) Porting .............................................. 10
i.
<PAGE>
(g) OEM Arrangements ..................................... 10
(h) Company's General Businesslike Conduct ............... 11
(i) Technical Support and Other Staff .................... 11
(j) Installation ......................................... 11
(k) Keeping PMSI Informed ................................ 11
(l) Reports and Forecasts ................................ 11
(m) Competing Representations ............................ 11
6. OBLIGATIONS OF PMSI ........................................... 12
(a) Availability of Documentation ........................ 12
(b) Training ............................................. 12
(c) Developments ......................................... 12
(d) Third Party OEM Arrangements ......................... 12
(e) Maintenance Upon Termination ......................... 12
(f) Bug Fixes ............................................ 13
7. WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY .......... 13
(a) PMSI's Warranty ...................................... 13
(b) Warranty Disclaimers and Limitations ................. 13
(c) No Warranty Pass-Through ............................. 13
(d) Limitation of Liability .............................. 13
8. INDEMNITY ..................................................... 14
(a) Proprietary Rights ................................... 14
(b) Other Indemnity ...................................... 15
9. PROPRIETARY RIGHTS ............................................ 15
(a) Ownership of Proprietary Rights ...................... 15
(b) No Modification ...................................... 15
(c) Trademarks and Trade Names ........................... 15
(d) Nondisclosure and Non-Use ............................ 16
10. COMPLIANCE WITH LAWS .......................................... 17
(a) Export Law Compliance ................................ 17
(b) Foreign Corrupt Practices Act ........................ 18
(c) Licenses and Permits ................................. 18
11. EFFECTIVE DATE, TERM, TERMINATION AND EFFECT OF
TERMINATION ................................................... 18
(a) Effective Date ....................................... 18
(b) Term ................................................. 18
(c) Termination by Either Party .......................... 19
(d) Termination by PMSI .................................. 19
(e) No Other Rights Upon Termination ..................... 19
(f) Effect of Termination ................................ 19
(g) The Company's Duties Upon Termination ................ 20
ii.
<PAGE>
12. GENERAL TERMS .................................................. 21
(a) Assignment ............................................ 21
(b) Benefits and Binding Nature of Agreement .............. 21
(c) Entire Agreement ...................................... 21
(d) Force Majeure ......................................... 21
(e) Notice ................................................ 21
(f) Governing Law and Official Language ................... 22
(g) Dispute Resolution .................................... 22
(h) Waiver ................................................ 23
(i) Severability .......................................... 23
(j) Rights and Remedies Cumulative ........................ 23
(k) No Agency - Independent Contractors ................... 23
(l) Captions and Section References ....................... 23
(m) Counterparts .......................................... 24
(n) No Limitation on Supplier PMSI ........................ 24
(o) Parties Advised by Counsel -- No Interpretation
Against Drafter ....................................... 24
(p) Authority to Enter Into and Execute Agreement ......... 24
APPENDICES
Appendix A: Software
Appendix B: Polygen (PMSI) Standard Software License
Agreement
Appendix C: Price List
Appendix D: Wire Transfer (Bank) Information
Appendix E: PMSI Trademarks
iii.
<PAGE>
DISTRIBUTORSHIP AGREEMENT
This Distributorship Agreement is made and entered into as of the 1st
day of April, 1992, by and between Polygen Corporation (doing business as
Polygen Molecular Simulations Incorporated), a Delaware corporation, having its
principal place of business at 200 Fifth Avenue, Waltham, Massachusetts 02154,
U.S.A. ("PMSI") and Teijin Molecular Simulations Incorporated, a corporation
organized under the laws of Japan, with its principal place of business at 1-1,
Uchisaiwai-cho 2-chome, Chiyoda-ku, Tokyo 100, Japan ("the Company").
RECITALS
A. PMSI and Teijin Limited, a corporation organized under the laws of
Japan with its principal office at 6-7, Minamihommachi 1-chome, Chuo-ku, Osaka
541, Japan ("Teijin") have entered into a Joint Venture Agreement dated as of
February 14, 1992 (the "Joint Venture Agreement"), pursuant to which the Company
was organized as a joint venture corporation under the laws of Japan.
B. PMSI and its subsidiaries are engaged in the design, development and
licensing of proprietary computational chemistry software products and related
documentation.
C. It was contemplated by PMSI and Teijin under the Joint Venture
Agreement that the Company be appointed as PMSI's exclusive distributor in the
Territory (as defined below) of the Software (as defined below).
D. PMSI is willing to grant to the Company an exclusive right to market
and sublicense the Software and related documentation in the Territory,
subject to the terms and conditions set forth in this Agreement.
THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto agree as follows:
AGREEMENT
1. DEFINITIONS.
For the purpose of this Agreement, the following terms shall have the
following meanings unless otherwise required by the context:
(a) "Agreement" shall mean this Distributorship Agreement as it may be
amended from time to time.
1.
<PAGE>
(b) "Customer" shall mean any third party user to whom the Company has,
in accordance with the terms of this Agreement and the End User License
Agreement, granted the right to use the Software.
(c) "Documentation" shall mean the standard user documentation and
sales support materials which PMSI has published or may publish during the term
of this Agreement.
(d) "End User License Agreement" shall mean the Company's standard end
user license agreement, pursuant to which Customers are Sublicensed by the
Company the right to use the Software. Pursuant to Section 2(d)(ii) hereof, the
End User License Agreement shall contain terms that are substantially the same
as those found in PMSI's Standard Software License Agreement, a current copy of
which is attached hereto as Appendix B.
(e) "PMSI Customers" shall mean any third party user in the Territory
to whom PMSI or PMSI's agent has granted the right to use the Software prior to
the Effective Date hereof.
(f) "Software" shall mean the computational chemistry software products
marketed by PMSI or PMSI's subsidiaries and licensed hereunder, to be provided
in machine readable (object code) form, and set forth on Appendix A attached
hereto, as such Appendix A may be amended from time to time by PMSI and the
Company in accordance with Section 2(a) below.
(g) "Subdistributor" shall mean any subdistributor, agent or value-
added reseller authorized by the Company to distribute the Software.
(h) "Sublicense" shall mean the non-exclusive, non-transferable right
(unless otherwise stated) to sublicense (without the further right to
sublicense) Software pursuant to the End User License Agreement.
(i) "Territory" shall mean the entire country of Japan, which Territory
may be expanded from time to time by mutual agreement of PMSI and Teijin to
include other countries in the Asian Pacific Rim such as Korea and Taiwan.
(j) "Trademarks" shall mean any trademark which PMSI owns or has right
to use as may be designated by PMSI from time to time.
2. APPOINTMENT AND GRANT OF LICENSE.
(a) Distributor License. Subject to the terms and conditions
contained herein, PMSI hereby grants to the Company, and the Company hereby
accepts, the exclusive, non-transferable and indivisible right to market the
Software in the Territory during
2.
<PAGE>
the term hereof solely for distribution to Customers located in the Territory.
The Company shall have no right to assign or otherwise transfer any or all of
its rights under this Agreement except as may be otherwise provided in Section
2(d) hereof with respect to the licensing and sublicensing of Customers. It is
the intention of the parties to amend Appendix A of this Agreement from time to
time to include within the definition of "Software" under this Agreement, all
computational chemistry software products that are developed or marketed by PMSI
or its subsidiaries in the future during the term of this Agreement, including
extensions of, replacements for, or improvements of the software products
presently enumerated on Appendix A; provided, however, that PMSI may at its
option exclude from "Software" and the scope of this Agreement, software
products for which it does not have distribution rights for the Territory due to
limitations or restrictions imposed by the licensor or party providing such
software products to PMSI. Notwithstanding the grant of exclusivity under this
Section 2(a), PMSI may, upon prior notice to the Company, license Software to
third parties outside the Territory who will bundle the Software with hardware
and distribute those bundled products in the Territory, provided that such
bundling shall be on an OEM basis.
(b) Limited Demonstration/Training/Support License. PMSI hereby grants
and the Company hereby accepts, subject to the terms and conditions specified
herein, an exclusive license, except for licenses to use the Software for
demonstration and support activities that have been or may be granted by PMSI to
OEM's or computer manufacturers, to use in the Territory, during the term
hereof, the Software for demonstration and technical support of the Software,
and for training of Company and Subdistributor personnel on the Software.
(c) Documentation License. PMSI hereby grants and the Company hereby
accepts, subject to the terms and conditions specified herein, an exclusive
license, except for licenses to use the Documentation for demonstration and
support activities that have been or may be granted by PMSI to OEM's or computer
manufacturers, to use the Documentation in the Territory during the term hereof
for the purpose of enabling the Company to carry out its sublicensing and
support obligations to PMSI Customers and Customers under this Agreement. The
Company may, at its expense, translate, copy and repackage the Documentation as
is necessary in connection with its Sublicensing of the Software pursuant to
Section 2(d) hereof. All translations of the Documentation shall, pursuant to
Section 2(e)(i) hereof, include PMSI copyright and other proprietary rights
notices. PMSI shall retain title to and ownership of any such translations of
the Documentation.
3.
<PAGE>
(d) Grant of Right to Sublicense.
(i) The licenses granted under this Agreement are non-transferable,
except that the Company is hereby authorized to grant Sublicenses to Customers
of the Company or to Customers of Subdistributors for use of the Software on any
appropriate platform on the terms and conditions set forth below. Sub-licenses
of the Software may only be granted to Customers who represent that they shall
not use the Software to provide any service bureau or consulting service to any
third party, or to re-export the Software without first obtaining written
permission from PMSI. Software provided to Customers shall be in
machine-readable (object) code.
(ii) Until termination of this Agreement, the Company shall
Sublicense and provide the Software and Documentation to Customers pursuant only
to the terms of an End User License Agreement. Promptly following the execution
of this Agreement, the Company shall, at its expense, develop an End User
License Agreement in the Japanese language, together with an English language
translation of the same, which End User License Agreement shall contain terms
that are substantially equivalent to those set forth in PMSI's Standard Software
License Agreement (Appendix B hereto). Without prejudice to the generality of
the foregoing, and in addition to such terms, the End User License Agreement
shall expressly provide that: (x) the End User License Agreement (and any
related software maintenance agreement) between the Customer and the Company
shall be automatically assigned to PMSI or PMSI's designee in the event of
termination of this Agreement for any reason, and (y) the terms of the End User
License Agreement shall govern and control in the event of any inconsistency
between its terms and those of any purchase order between the Customer and the
Company. The Company shall provide PMSI with copies of its End User License
Agreement and the English translation thereof for PMSI's written approval. The
Company shall not transfer Software to a Customer unless and until the Company
shall have obtained a signed copy of the End User License Agreement from the
Customer, and the Company agrees to obtain prior written approval from PMSI to
any modifications or changes to the pre-approved End User License Agreement.
(iii) The Company agrees to use its reasonable commercial efforts
to ensure that each Customer sublicensed pursuant to this Agreement continues to
comply with the terms of the End User License Agreement. The Company shall
maintain adequate Customer records which may be inspected by PMSI during regular
business hours upon reasonable prior written notice.
(e) General License Provisions. All licenses granted herein shall be
further subject to the following:
4.
<PAGE>
(i) The Software and Documentation and any copies thereof shall
in all cases remain the exclusive property of PMSI. The Company agrees to
reproduce and include any PMSI copyright notices and other legends both in and
on every copy of the Software or Documentation in every form, including partial
copies and modifications of the Software.
(ii) Except as expressly set forth in Sections 2(c) and 6(a)
hereof, the Company agrees not to copy, provide, or otherwise make available any
of the Software or Documentation, in whole or in part in any form, to any person
other than employees of the Company, Subdistributors and Customers as provided
for in this Section 2. The Company agrees to take appropriate action by
instruction, agreement, or otherwise with the Company's employees or other
persons permitted access hereunder to the Software or Documentation to satisfy
its obligations under this Agreement with respect to the use, copying,
modification, protection, and security of the Software and Documentation.
(iii) The Company agrees not to license or ship any Software to any
person in the Territory which the Company knows or has reason to know, based
upon information provided to it by the licensee at the time of grant of such
license, will cause or permit the Software ultimately to be shipped, licensed or
used outside of the Territory.
(f) Exclusivity. The grant by PMSI to the Company of certain
"exclusive" rights with respect to the Territory shall mean that, unless
otherwise expressly permitted herein, PMSI shall have no right to, directly or
indirectly, exercise, or permit third parties to exercise, those rights in the
Territory. This shall mean, without limitation, that, without the express
written consent of the Company, PMSI:
(i) shall not itself license or ship any Software to any person
in the Territory; and
(ii) shall not license or ship any Software to any person outside
of the Territory which PMSI knows or has reason to know, based upon information
provided to it by the licensee at the time of grant of such license, will cause
or permit the Software ultimately to be shipped, licensed or used in the
Territory;
(iii) provided, however, that PMSI may:
(x) grant licenses to OEM or computer manufacturers to use
the Software and Documentation for demonstration and support activities; and
(y) grant corporate licenses to third parties outside of the
Territory; provided, however, that in the event
5.
<PAGE>
PMSI grants a corporate license to a third party located outside of the
Territory that has subsidiaries or facilities in the Territory, and if, at the
time of entering into such corporate license, PMSI has a reasonable belief that
a significant level (if any) of licenses will be shipped into the Territory as a
consequence of such corporate license, PMSI and the Company shall determine in
good faith the manner in which revenues arising from such third party corporate
license are to be divided between PMSI and the Company. Similarly, in the event
the Company grants a corporate license to a third party located in the Territory
that has subsidiaries or facilities outside of the Territory, and if, at the
time of entering into such corporate license, the Company has a reasonable
belief that a significant level (if any) of licenses will be shipped outside of
the Territory as a consequence of such corporate license, the Company and PMSI
shall determine in good faith the manner in which revenues arising from such
third party corporate license are to be divided between the Company and PMSI.
PMSI shall cause PMSI's subsidiaries to comply with the foregoing provisions and
limitations with respect to any Software which they have, directly or
indirectly, licensed to the Company hereunder.
3. ORDER PROCEDURE AND SHIPMENT AND DELIVERY TERMS.
(a) Orders. The Company shall submit written purchase orders for
Software in accordance with the then current order processing procedures of PMSI
as designated from time to time by PMSI. All purchase orders placed with PMSI
for Software shall be subject to acceptance by PMSI at its principal place of
business, such acceptance not to be unreasonably withheld. PMSI shall use
reasonable efforts to meet the resale requirements of the Company and to make
deliveries in accordance with the delivery date on orders so accepted, but PMSI
shall not be liable to the Company, any Subdistributor or Customer or to any
other party, for PMSI's delay in delivery or failure to deliver any products
that are under development by PMSI at the time an order is received. If the
Company manufactures and packages Software in Japan by replicating "master"
copies of the Software and Documentation provided by PMSI, instead of submitting
purchase orders for each copy of the Software and Documentation to PMSI, the
Company shall, within eight (8) business days of the end of each calendar month,
and in addition to the reports required under Section 5(l) hereof, report to
PMSI the date of shipment and quantity of such Software shipped during such
month and the fees for such Software received from PMSI Customers, Customers and
Subdistributors during such month.
(b) Shipping and Delivery. The following shipping and delivery
procedures shall apply to Software and Documentation ordered by the Company from
PMSI pursuant to Section 3(a) above,
6.
<PAGE>
but shall not apply to Software and Documentation that is manufactured and
packaged by the Company in Japan for shipment directly to PMSI Customers,
Customers and Subdistributors in the Territory. In the absence of specific
instructions from the Company, the shipping and packaging method used will be at
the discretion of PMSI. Deliveries shall be made F.O.B. (as defined in Incoterms
1990, Publ. No. 460 of the International Chamber of Commerce) from PMSI's
warehouse or manufacturing facility, and shall be shipped to the Company's
address as first set forth in this Agreement. Unless the Company's order
specifies the name of a carrier, PMSI will select the carrier. PMSI shall bear
the risk of loss until such time as a shipment has been placed on board the
carrier, at which time the risk of loss shall be borne by the Company. Any
claims for damage or loss in transit shall be placed by the Company through the
carrier. All shipments will be shipped by PMSI freight collect, or if prepaid,
such freight will be subsequently billed to the Company, and the Company will
reimburse PMSI for such freight in accordance with Section 4 below. PMSI
reserves the right to deliver in advance of estimated delivery dates.
(c) Cancellation of Orders. The Company may cancel any order (or part
thereof) for Software by giving PMSI written notice of such cancellation.
(d) Localization and Shipment from Japan. The Company will as soon as
practical, at its expense, develop a Japanese language version of the
Documentation and/or manufacture, package and ship the Software to PMSI
Customers, Customers and Subdistributors from the Company's facilities in Japan
in accordance with procedures mutually agreed upon between PMSI and the Company.
Following the localization of the Software and Documentation pursuant to this
Section 3(d), the Company may manufacture and package the Software in Japan and
ship such Software directly to PMSI Customers, Customers and Subdistributors in
the Territory. In such case, the Company shall, within eight (8) business days
of the end of each calendar month, and in addition to the reports required under
Section 5(l) hereof, report to PMSI in English the date of shipment and quantity
of such Software shipped during such month and the fees for such Software
received from PMSI Customers, Customers and Subdistributors during such month.
4. PRICES (LICENSING FEES) AND PAYMENT TERMS.
(a) Licensing Fees. In consideration of the licenses and rights granted
to the Company under this Agreement, the Company agrees to pay PMSI the fees
specified in PMSI's price list attached to this Agreement as Appendix C (the
("Price List"), as in effect when each order is accepted by PMSI, less an
initial discount of [*] of such Price List for the period ending on [*]; such
discount to be re-negotiated
* CONFIDENTIAL TREATMENT REQUESTED
7.
<PAGE>
annually in good faith by PMSI and the Company. Such fees are exclusive of, and
the Company shall pay, all shipping charges for each order. PMSI agrees to give
written notice to the Company at least sixty (60) days in advance of the
effective date of any change in its Price List. Such changes in PMSI's Price
List shall be made no more frequently than once during each calendar year, shall
be made only after consultation with the Company, and shall be commercially
reasonable.
(b) Taxes. Any and all fees and other amounts due to PMSI from the
Company under this Agreement are exclusive of, and the Company shall pay and
shall indemnify and hold PMSI harmless against (i) any liability for, any sales,
use, property, license, value added, withholding, import, excise or similar tax,
federal, state or local, U.S. and non-U.S., that may be imposed upon or with
respect to the Software products or their delivery, sale, licensing, use,
ownership or possession, and (ii) any duties, tariffs, customs, import and
related fees and charges, exclusive of taxes based on PMSI's net income.
Notwithstanding the foregoing, Japanese income tax may be withheld by the
Company from the license fees payable to PMSI pursuant to Section 4(a) hereof,
so long as such withholding is required by Japanese law. The Company shall
provide PMSI with copies of tax receipts or other documents evidencing that such
taxes withheld have been paid to the Japanese tax authorities. Such evidence
shall be forwarded to PMSI no later than thirty (30) days after such taxes have
been paid.
(c) Payment Schedule. PMSI shall invoice the Company each time Software
is shipped in accordance with the Price List attached hereto as Appendix C. The
Company will make payment to PMSI by the twentieth (20th) of each month for all
shipments made by the Company or by PMSI in the preceding month in U.S. dollars
by wire transfer of immediately available funds to such bank account as is
specified in Appendix D attached hereto, as may be revised from time to time by
PMSI. Invoices shall be considered paid when PMSI is in receipt of such funds or
upon confirmation of receipt by the bank. From and after the date of any default
of any payment due hereunder, until such default is cured, interest shall accrue
at the rate of two percent (2%) per month on such unpaid amounts, or at the
maximum rate permitted by Massachusetts law, if less.
(d) Installation Fees. The Company may not charge Customers
installation fees except as set forth in Appendix C or as otherwise approved in
writing by PMSI.
(e) Maintenance Fees. For each Software product, maintenance and
updates shall be provided by the Company, on behalf of PMSI, to PMSI Customers
and Customers. This maintenance service shall be provided to PMSI Customers and
Customers in accordance with PMSI's policies and the terms of the Company's
standard
8.
<PAGE>
software maintenance agreement to be entered into between the Company and PMSI
Customers or Customers, which terms shall be mutually determined and approved by
PMSI and the Company (the "Software Maintenance Agreement"). Unless and until
the maintenance pricing shall be adjusted by PMSI in accordance with the terms
of this Agreement, the maintenance pricing to be paid to PMSI for a given
Software product shall conform to the maintenance pricing schedule shown in
attached Appendix C, less an initial discount of [*] to be retained by the
Company for the period ending on [*]; such discount to be re-negotiated annually
in good faith by PMSI and the Company. The fee for the annual maintenance
contracts and their renewals shall be paid in advance of the effective date or
renewal date thereof (as the case may be) by the Company to PMSI.
(f) Discounts to Subdistributors and Customers. Nothing contained
herein shall prevent or otherwise limit the Company's ability to grant
additional discounts to Subdistributors and/or Customers; provided, however,
that all such discounts are and shall be borne entirely by the Company or its
Subdistributor.
(g) Hardware. PMSI shall sell to the Company workstations manufactured
by Silicon Graphics Inc. ("SGI") at [*] of the Japanese list
price for the period ending on March 31, 1993. Thereafter, PMSI shall use
reasonable commercial efforts to extend or continue its existing relationships
with SGI and other value-added reseller hardware vendors in order to offer and
sell such hardware to the Company at a favorable price. The Company agrees to
purchase such hardware from PMSI as long as PMSI is able to offer such hardware
at prices equal to or more favorable than prices available to the Company from
other sources.
5. OBLIGATIONS AND FUNCTIONS OF THE COMPANY.
(a) Management and Support of Distribution. The Company shall be
responsible for managing and supporting the distribution of the Software in the
Territory, including the management of Subdistributors and value-added reseller
relationships.
(b) Relationship with Subdistributors. The Company may, in its
reasonable discretion, appoint and authorize Subdistributors to subdistribute
the Software in the Territory. In doing so, the Company shall enter into
agreements or arrangements with such Subdistributors that maximize, and shall
act to the best interests of, the distribution and support of the Software in
the Territory. The Company shall use reasonable commercial efforts to ensure
compliance by such Subdistributors with all of the Company's obligations under
this Agreement, and at all times transact with such Subdistributors on an
arms'-length basis.
*CONFIDENTIAL TREATMENT REQUESTED
9.
<PAGE>
(c) Adequate Company Facilities and Customer Satisfaction. The Company
will establish, staff, equip and maintain such place or places of business in
such location or locations in the Territory as may be necessary to provide good
customer service and support and marketing coverage in the Territory. The
Company shall use its best efforts to ensure customer satisfaction including
maintaining a qualified sales force to promote the sale/Sublicensing of the
Software.
(d) Promotion and Marketing. The Company agrees to use its best efforts
to market, distribute, Sublicense and support the Software throughout the
Territory and further agrees that its marketing and advertising efforts will be
of high quality, in good taste, and will preserve the professional image and
reputation of PMSI and the Software. The Company agrees to include in all
related advertising materials all applicable proprietary rights' notices and any
other notices of PMSI as they appear on or in the Software. PMSI may provide, at
its option, a reasonable amount of advertising material in English, as requested
by the Company, for use in the Company's efforts to market the Software. All
such material shall remain the property of PMSI and, upon request, the Company
agrees to return same to PMSI without cost to PMSI. If required by Customer
demand, the Company shall translate all such materials into the Japanese
language or other language necessary for proper marketing of the Software in the
Territory and provide such materials to PMSI for review. PMSI shall retain title
to and ownership of any such translations. The Company agrees to refrain from
making any claim or representation concerning the Software in excess of those
made by PMSI.
(e) Contract Services. The Company may enter into application contracts
with PMSI Customers or Customers whereby the Company will provide services to
address customer problems related to the use of the Software in the Territory.
The Company may also act as PMSI's agent with respect to the development or
establishment of strategic technology partner (STP) relationships with major
Customers and PMSI Customers in the Territory.
(f) Porting. The Company shall act as PMSI's agent with respect to
establishing and managing porting contracts with computer companies in the
Territory. PMSI agrees to use its best commercial efforts to supply information
necessary to complete porting that is reasonably requested by the Company.
(g) OEM Arrangements. The Company shall endeavour to establish OEM
arrangements with third parties in the Territory, and PMSI agrees to use its
best commercial efforts to supply information necessary to establish such
arrangements.
10.
<PAGE>
(h) Company's General Businesslike Conduct. The Company shall at all
times conduct its business in a businesslike manner and will not engage in any
deceptive, misleading, illegal or unethical business practice or any practice
that will reflect unfavorably on PMSI or the Software.
(i) Technical Support and Other Staff. The Company agrees to develop,
maintain and train or otherwise provide a competent technical and scientific
support organization for the Software that will be responsible for the
installation and on-site servicing of the Software, the provision of remote
telephone support services, and the provision of training and application
development to PMSI Customers, Customers and Subdistributors. The Company shall
at all times have a sufficient number of competent office, sales, service and
other employees to carry out its obligations under this Agreement.
(j) Installation. The Company shall be responsible for the installation
of the Software at Customers' facilities, either directly or through
Subdistributors.
(k) Keeping PMSI Informed. The Company agrees to use its best efforts
to keep PMSI fully informed of all governmental, commercial and industrial
activities and plans which affect, or could affect, the Software in the
Territory. The Company shall consult with PMSI regarding any advertising or
trade practice which might affect the good name, trademarks, goodwill, or
reputation of PMSI or the Software.
(l) Reports and Forecasts. The Company shall furnish to PMSI in
English: (i) within eight (8) business days after the end of each calendar
month, a report on the monthly sales and Sublicensing of the Software in the
Territory for the preceding month, identifying the Software shipped by the
Company or Subdistributors to Customers and the respective locations and contact
persons of such Customers, and showing the price and national currency involved
in which the Software was sold/Sublicensed and for which services relating
thereto were provided, and (ii) a rolling six (6)-month forecast of sales on a
monthly basis. The Company shall also furnish PMSI with such other reports as
PMSI may reasonably require from time to time.
(m) Competing Representations. In consideration for the license granted
to the Company under Section 2 above, the Company agrees that during the term of
this Agreement, the Company shall not develop, contract to develop, manufacture,
sell, license, lease or otherwise distribute or exploit in any manner any
product that is directly competitive with the Software in the Territory. For the
purposes of this Agreement, a product shall be considered to be competitive with
the Software if the sale of that product could result in lower sales of the
Software.
11.
<PAGE>
6. OBLIGATIONS OF PMSI.
(a) Availability of Documentation. PMSI shall provide the Company with
one (1) copy of all Documentation in the English language including sales
literature, training manuals, operator manuals, graphic materials, and other
documentation relating to the Software. The Company may translate, copy, and
repackage the Documentation as is necessary in accordance with the terms of
Section 2(c) above.
(b) Training. PMSI will provide intensive training for a reasonable
number of the Company's personnel at PMSI's facilities in the U.S.A., for a
reasonable number of days per year. The Company shall pay all travel, living and
incidental expenses of its personnel. PMSI shall also provide technical
instructors for seminars to be held in Japan on a periodic basis, subject to the
availability and reasonable schedules of such instructors. All travel, living
and incidental expenses of such instructors shall be borne by the Company.
(c) Developments. During the term of this Agreement, PMSI will use
reasonable commercial efforts to provide the Company with full and complete
information concerning all improvements, updates, enhancements, and
modifications to the Software and will provide the Company with such
improvements, updates, enhancements and modifications for distribution to
Customers at the same time as PMSI makes any such improvement, update,
enhancement or modification generally available to its other customers. In
addition, if there is any software product which is under development by PMSI
which may be added to the definition of "Software" pursuant to Section 2(a)
hereof, PMSI shall use its reasonable commercial efforts to provide the Company,
on a regular basis as it becomes available, with full and complete information
concerning such product, including, but not limited to, the projected
development and shipping schedule, beta release, documentation and other
information that would assist with pre-marketing preparation.
(d) Third Party OEM Arrangements. In the event that PMSI enters into an
OEM arrangement with a third party relating to the manufacture and distribution
of bundled PMSI software and third party hardware products (as contemplated
under Section 2(a) hereof), which arrangement includes distribution by such
third party in the Territory being served by the Company, PMSI agrees to
negotiate in good faith with the Company to have the Company provide technical
support for such bundled products in the Territory (if necessary). PMSI shall
give advance written notice to the Company of such OEM arrangements if support
by the Company is necessary.
(e) Maintenance Upon Termination. Upon the termination of this
Agreement and provided that the relevant End User License
12.
<PAGE>
Agreements and Software Maintenance Agreements have been assigned to PMSI or its
designee in accordance with Section 11(f)(iii) hereof, PMSI shall use its best
efforts to arrange for the continued maintenance and support of PMSI Customers,
Customers and the Software in the Territory.
(f) Bug Fixes. PMSI will use its reasonable commercial efforts to
notify the Company in writing of any outstanding bugs or other defects in the
Software and will endeavour to correct such bugs and defects and supply such
corrections to the Company in accordance with PMSI's reasonable commercial
procedures.
7. WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY.
(a) PMSI's Warranty. All Software is warranted as provided in Section
10 of the current form of PMSI's Standard Software License Agreement attached
hereto as Appendix B, the provisions of which are made a part hereof by
reference.
(b) Warranty Disclaimers and Limitations. THE WARRANTIES DESCRIBED IN
7(a) ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. The
warranties shall apply only if PMSI's examination discloses to PMSI's
satisfaction that alleged defects actually exist and were not caused by misuse,
unauthorized modifications, neglect, improper installation or testing, attempts
to repair, or the like, or by accident, fire, power surge or failure, or other
hazard.
(c) No Warranty Pass-Through. The Company shall not pass through to its
Customers or any other third party the warranties made by PMSI under this
Section 7, shall make no other representations to its Customers or any other
third party on behalf of PMSI, and shall expressly indicate to its Customers
that they must look solely to the Company in connection with any problems,
warranty, claim or other matters concerning the Software. No warranty,
representation or agreement herein shall be deemed to be made for the benefit of
any Customer or any other third party. Notwithstanding the foregoing, the
Company may pass through only to Customers only those warranties specified in
Section 10 of the attached PMSI Standard Software License Agreement (Appendix B
hereto). Repair or replacement of code or other items does not extend the
warranty period beyond the initial warranty period which shall begin on the date
of installation of the Software at the Customer's facilities.
(d) Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS
OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY,
WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF THE
13.
<PAGE>
OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. PMSI'S LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT
EXCEED THE AMOUNTS ACTUALLY PAID BY THE COMPANY TO PMSI UNDER THIS AGREEMENT.
SOME STATES AND JURISDICTIONS OUTSIDE OF THE UNITED STATES DO NOT ALLOW THE
LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. THE
COMPANY ACKNOWLEDGES THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS
AGREEMENT ARE BASED ON, AND THE LICENSE FEES UNDER THIS AGREEMENT WOULD BE
GREATER IN THE ABSENCE OF, THE LIMITATIONS DESCRIBED ABOVE.
8. INDEMNITY.
(a) Proprietary Rights. PMSI will defend the Company against a claim
that the Software furnished and used within the scope of this Agreement
infringes any third party patent, copyright or other intellectual property right
("Claim"), and PMSI will indemnify the Company for any damages finally awarded
by a court of competent jurisdiction based upon a Claim, or any amount that is
paid to finally settle a Claim, so long as PMSI has approved the settlement in
writing, provided that: (i) the Company notifies PMSI in writing within thirty
(30) days of any Claim, (ii) PMSI has sole control of the defense and all
related settlement negotiations, and (iii) the Company provides PMSI with the
assistance, information and authority necessary to perform the above. Reasonable
out-of-pocket expenses incurred by the Company in providing such assistance will
be reimbursed by PMSI.
(i) Notwithstanding the foregoing, PMSI shall have no liability for any
claim of patent or copyright infringement based on: (A) a modification by the
Company of the Software or the use of a superseded or altered release of the
Software if such infringement would have been avoided by the use of current or
unaltered releases of the Software that PMSI provides to Distributor, or (B) the
combination, operation or use of the Software furnished under this Agreement
with products or data not furnished by PMSI if such infringement would have been
avoided by the use of the Software without such products or data.
(ii) In the event the Software is held or is believed by PMSI to
infringe, PMSI shall have the option, at its expense, to (A) modify the Software
to be non-infringing, (B) obtain for the Company the right to continue using and
distributing the Software, or (C) terminate this Agreement with respect to the
infringing Software and refund the fees paid for such Software, to the extent
each Customer, if any, requests a corresponding refund, but in any event the
amount of the refund shall equal [*].
14.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
(iii) This Section 8(a) states the Company's exclusive remedy and
PMSI's entire liability for any infringement.
(b) Other Indemnity. The Company shall be responsible and shall
indemnify and hold PMSI harmless for any and all losses, liability or damages
arising out of or incurred in connection with (i) Company's, Subdistributors' or
Customers' marketing, distribution, use or Sublicensing of the Software, except
for valid warranty claims under Section 7 above and valid third party
infringement Claims under Section 8(a) above, and (ii) any unauthorized
representation, warranty or agreement, express or implied, made by Company, any
Subdistributor or Customer to or with any other Customers or any third party
with respect to the Software.
9. PROPRIETARY RIGHTS.
(a) Ownership of Proprietary Rights. PMSI shall retain all of its
rights, title and interest in and to and ownership of all copyrights,
trademarks, trade secrets, patents, mask works and all other industrial and
intellectual property embodied in the Software including any improvements,
updates, enhancements or modifications to the Software. Except as otherwise
expressly provided in this Agreement, the Company has no right, title or
interest in the Software or any industrial or intellectual property relating to
the Software and shall not copy, reproduce, reverse engineer, decompile,
disassemble, or otherwise use, in whole or in part, the Software. The Company
shall keep each and every item to which PMSI retains title free and clear of all
claims, liens, and encumbrances except those of PMSI, and any act of the
Company, voluntary or involuntary, purporting to create a claim, lien, or
encumbrance on such item shall be void.
(b) No Modification. Except as required under Section 3(d) hereof, the
Company shall distribute the Software only in the form shipped by PMSI, and the
Company shall not alter, modify, or change the Software or its package or use in
relation to any product or any trademark of the Company or any third parties
without the prior written consent of PMSI.
(c) Trademarks and Trade Names.
(i) In connection with the distribution or advertising of the Software,
the Company may use such trade names or Trademarks of PMSI listed in Appendix E,
as may be amended from time to time by PMSI. The Company acknowledges the
validity of such Trademarks and trade names and PMSI's ownership thereof. All
such marks and names and any additional marks of which PMSI may in the future be
the proprietor will bear the designation (TM) or the designation (R) as
specified by PMSI. The Company agrees to submit to PMSI any published material
not previously reviewed by
15.
<PAGE>
PMSI containing references to the Software for PMSI's approval prior to the
publication or release of such published material, such approval shall not be
unreasonably withheld. The Company shall not challenge PMSI's rights to use the
Trademarks or trade names which PMSI may apply to or use in connection with the
Software. If the Company in the course of its business in the distribution of
the Software acquires any goodwill or reputation in any of the Trademarks or
trade names of PMSI applied thereto, then at the expiration or termination of
this Agreement all such goodwill or reputation automatically shall vest in PMSI
without any separate payment or other consideration of any kind to Distributor,
and the Company agrees to take all such actions necessary to effect such
vesting.
(ii) The Company shall, at the request and expense of PMSI, do such
acts or things as PMSI may reasonably require for the purpose of obtaining,
maintaining, enforcing and preserving any of the Trademarks, trade names or
other proprietary rights of PMSI in the Territory; provided, however, that the
Company agrees that only PMSI has the right to enjoin any infringement or
registration by a third party of the trademarks, trade names or similar rights.
In the event that any unlawful copying of the Software, infringement of PMSI's
rights in the Software, or infringement or registration by a third party of
the trademarks, trade names or other property rights of PMSI in the Territory
comes to the attention of the Company, the Company shall immediately inform PMSI
in writing, stating the full facts of the infringement or registration known to
it, including the identity of the suspected infringer or registrant, the place
of the asserted infringement or registration and evidence thereof. The Company
agrees to cooperate fully with PMSI at the expense of PMSI if PMSI sues to
enjoin such infringements or to oppose or invalidate any such registration.
Notwithstanding the foregoing, in the event that PMSI refuses in writing to
enjoin such infringements or to oppose or invalidate any such registration
following a written request by the Company to do so, the Company may, at its
expense, sue to enjoin or otherwise oppose any such infringement of PMSI's
proprietary rights.
(iii) Except as permitted herein, the Company shall not (nor shall it
attempt to) adopt, use, or register any acronym, Trademark, trade names or other
marketing name of PMSI or any confusingly similar work or symbol as part of the
Company's own name or the name of any of its affiliates or the names of the
products it markets.
(d) Nondisclosure and Non-Use.
(i) Without the prior written consent of the supplying party, no
receiving party, its officers, directors, agents or employees shall, in the case
of Confidential Information (as defined hereafter) of a business nature, both
during the term of
16.
<PAGE>
this Agreement and for a period of three (3) years after termination of this
Agreement, and in the case of Confidential Information of a technical nature,
both during the term of this Agreement and for period of ten (10) years after
the termination of this Agreement, in any manner whatsoever disclose or
communicate such information to a third party, except as legally required by a
governmental or judicial agency, and each party agrees to keep such Confidential
Information strictly confidential. For the purpose of this Agreement, the term
"Confidential Information" shall mean and include any and all financial and
other information relating to PMSI's or the Company's business and their
respective relationships with Teijin, the Software, the Documentation,
information relating to the Software (including but not limited to technical
information such as design specifications, instructions, and know-how) acquired
either directly or indirectly by either party hereunder; provided, however, that
all such Confidential Information shall be clearly marked as "confidential" and
the term "Confidential Information" shall not include any information which:
(1) has become or entered the public domain through no fault
of the receiving party; or
(2) was in the demonstrable possession of the receiving party
prior to or at the time of receipt hereunder; or
(3) was or has been obtained lawfully from a third party; or
(4) has been independently developed by the receiving party
without violation of its obligations under this Agreement, and which independent
development is properly documented by such party.
(ii) Each party agrees, during the term of this Agreement, that it
shall not use any Confidential Information obtained from the other for any
purpose whatsoever except in a manner expressly provided for in this Agreement.
The provisions of this Section 9(d) shall survive the termination of this
Agreement.
10. COMPLIANCE WITH LAWS.
(a) Export Law Compliance. The Company understands and recognizes that
the Software and other materials made available to it hereunder may be subject
to the export administration regulations of the United States Department of
Commerce and other United States government regulations related to the export of
technical data and equipment and products produced therefrom. The Company
represents that it is familiar with and agrees to comply with all such
regulations, including any future modifications thereof, in connection with the
distribution of the Soft-
17.
<PAGE>
ware. The Company agrees that it will not export or re-export outside the
Territory, directly or indirectly, any Software or technical data relating to
the Software without the prior written consent of PMSI and without complying
with all applicable regulations. The Company agrees to obtain the same agreement
from each of its Subdistributors and Customers. The Company hereby agrees to
indemnify and hold PMSI harmless from any breach of this Section 10(a) by it,
any Subdistributor and/or Customer.
(b) Foreign Corrupt Practices Act. The Company hereby agrees to refrain
from making any payments to third parties which could cause PMSI to violate the
U.S. Foreign Corrupt Practices Act. The Company hereby agrees to indemnify and
hold PMSI harmless from any breach of this Section 10(b).
(c) Licenses and Permits. The Company shall be responsible for
obtaining at its own expense, and shall use its best efforts to obtain, any and
all required non-U.S. governmental authorizations, including without limitation
any import licenses and foreign exchange permits. The Company shall provide
proof of compliance with required non-U.S. governmental authorization to PMSI
upon request. PMSI shall not be liable if any authorization is delayed, denied,
revoked, restricted or not renewed. The Company shall bear all such risks and
costs caused thereby. In addition, if this Agreement is terminated due to a
default of the Company, PMSI or its designee shall be exclusively entitled,
free-of-charge, to any rights the Company may have acquired as a result of, or
in, governmental approvals, authorizations or permits. If this Agreement is
terminated due to a default of PMSI, PMSI shall pay the Company a reasonable sum
to be mutually agreed upon for the exclusive transfer to PMSI or its designee of
any such rights the Company may have acquired as a result of, or in, said
governmental approvals, authorizations or permits. The Company agrees to use its
best efforts to effect the transfer of interest in the foregoing approvals,
authorizations or permits to PMSI or to any third party so identified by PMSI.
11. EFFECTIVE DATE, TERM, TERMINATION AND EFFECT OF TERMINATION.
(a) Effective Date. This Agreement shall become effective on the later
to occur of: (i) the date of execution of this Agreement by the parties, or (ii)
the date on which Japanese governmental clearance (whether in the form of an
approval, notification or otherwise) is obtained with respect to Japanese
foreign exchange and trade control regulations (the "Effective Date")
(b) Term. This Agreement shall commence on the Effective Date and shall
remain in full force and effect until the dissolution of the Company pursuant to
the terms of the Joint Venture Agreement or unless the parties otherwise agree.
18.
<PAGE>
(c) Termination by Either Party. Notwithstanding anything in this
Agreement to the contrary, either party shall have the right, in addition and
without prejudice to any other rights or remedies, to terminate this Agreement
immediately upon written notice to the other party if the other party commits
any material breach of any of the terms of this Agreement which, in the case of
a breach capable of remedy, shall not have been remedied within thirty (30) days
of the receipt by the party in default of notice specifying the breach and
requiring its remedy.
(d) Termination by PMSI. PMSI shall have the right, in addition and
without prejudice to any other rights or remedies, to terminate this Agreement:
(i) upon the termination of the Joint Venture Agreement for any
reason, unless otherwise mutually agreed between PMSI and Teijin where all the
shares of the Company are acquired by either Teijin or PMSI pursuant to Section
12 of the Joint Venture Agreement; or
(ii) upon written notice at any time for breach of Section 9
hereof (Proprietary Rights).
(e) No Other Rights Upon Termination. It is expressly understood and
agreed that the rights of termination as provided in this Agreement are absolute
and that both parties hereto have considered the making of expenditures in
preparing for performance as contemplated by this Agreement and possible losses
and damages incident and resulting to them that may result in the event of its
termination. Therefore, in agreeing to said terms of termination it is with the
full knowledge of such possibilities and except as provided herein neither party
hereto shall be responsible to the other for compensation, damages or otherwise
by reason of such termination of this Agreement at any time. Further, no
payments in the nature of severance payments shall be due either party upon
termination of this Agreement at any time. Without limiting the generality of
the foregoing, the Company understands and acknowledges that any contracts or
other arrangements it enters into with any third parties with respect to the
Software will be subject and subordinate to the rights of termination set forth
in this Agreement. The Company will indemnify and hold PMSI harmless from any
and all liability, loss, damages, costs or expenses incurred by PMSI in
connection with claims by any such third party made because of the termination
of this Agreement.
(f) Effect of Termination. Termination or expiration of this Agreement
shall not affect any other rights of either party which may have accrued up to
the date of such termination or expiration and the Company shall not be relieved
of any obligation for any sums due to PMSI for the Software or services covered
by purchase orders accepted prior to termination or expi-
19.
<PAGE>
ration or any confidentiality obligations of the Company under Section 9(d) of
this Agreement. Upon termination:
(i) the due date of all outstanding invoices to the Company for the
Software shall automatically be accelerated to become due and payable by
immediate wire transfer on the effective date of termination, even if longer
terms have been previously agreed to;
(ii) all orders or portions thereof remaining unshipped as of the
effective date of termination shall automatically be cancelled; and
(iii) all executed End User License Agreements and Software
Maintenance Agreements between Customers and the Company then in effect, and all
rights and obligations thereunder, shall immediately be assigned by the Company
to PMSI or its designee.
(g) The Company's Duties Upon Termination. Upon the termination or
expiration of this Agreement, the Company agrees to do the following:
(i) refrain thereafter from representing itself as a distributor of
PMSI or using any trademarks or trade names of PMSI;
(ii) immediately return to PMSI or immediately destroy (A) all
Confidential Information of PMSI including but not limited to advertising matter
and (B) all other printed material in its possession or under its control
containing or bearing any trademark or trade names of PMSI;
(iii) take all appropriate steps to remove and cancel its listing in
telephone books, directories, public records or elsewhere, which state or
indicate that the Company is a distributor of PMSI;
(iv) make available to PMSI for a period of one (1) year for
inspection and copying all books and records of the Company that pertain to the
Company's performance of and compliance with its obligations, warranties and
representations under this Agreement; and
(v) immediately cease using the applicable Software, and certify in
writing to PMSI within thirty (30) days after such termination that the Company
has either destroyed, permanently erased or returned to PMSI the Software, all
related Documentation and all copies. This requirement applies to copies in all
forms, partial and complete, in all types of media and computer memory and
storage, and whether or not modified or merged into other programs or materials.
20.
<PAGE>
12. GENERAL TERMS.
(a) Assignment. Except in connection with the sale of all or
substantially all of PMSI's assets, or its business (by merger or otherwise), or
any similar transfer by PMSI, any attempted assignment of the rights or
delegation of the obligations under this Agreement shall be void without the
prior written consent of the non-assigning or non-delegating party.
(b) Benefits and Binding Nature of Agreement. In the case of any
permitted assignment or transfer of or under this Agreement, this Agreement or
the relevant provisions shall be binding upon, and inure to the benefit of, the
successors, executors, heirs, representatives, administrators and assigns of the
parties hereto.
(c) Entire Agreement. This Agreement, together with the Appendices
attached hereto and incorporated herein by reference, embodies the final,
complete and exclusive understanding between the parties, and replaces and
supersedes all previous agreements, understandings or arrangements between the
parties with respect to its subject matter. No modification or waiver of any
terms or conditions hereof, nor any representations or warranties shall be of
any force or effect unless such modification or waiver is in writing and signed
by an authorized officer of each party hereto. It is expressly agreed that any
of the terms and conditions of the Company's purchase order or the like shall be
superseded by the terms and conditions of this Agreement.
(d) Force Majeure. Neither party shall be liable to the other for its
failure to perform any of its obligations under this Agreement, except for
payment obligations, during any period in which such performance is delayed
because rendered impracticable or impossible due to circumstances beyond its
reasonable control, including but not limited to fire, flood, earthquake,
explosion, acts of God, labor trouble or shortage, inability to obtain or
shortage of materials, equipment or transportation, insurrections, riots, war,
acts or requirements of the governments in any state, provided that the party
experiencing the delay promptly notifies the other of the delay. Any
installation, warranty, technical support, consulting services and other
services to be performed at the Company's facility may not be performed if PMSI
reasonably believes conditions at such facility represent a safety or health
hazard to any PMSI employee.
(e) Notice. All notices concerning this Agreement shall be written in
the English language and shall be deemed to have been received (i) ten (10) days
after being properly airmailed, postage prepaid, (ii) three (3) business days
after being properly sent by commercial overnight courier, or (iii) two (2)
business days after being transmitted by confirmed telecopy, in each case
addressed to the relevant party at its address first
21.
<PAGE>
set forth in this Agreement to the attention of Michael J. Savage, President, in
the case of PMSI, and to the attention of ______________________________________
in the case of the Company.
(f) Governing Law and Official Language. This Agreement is made in
accordance with and shall be governed and construed under the laws of the State
of Massachusetts, U.S.A., as applied to agreements executed and performed
entirely in Massachusetts by Massachusetts residents and in no event shall this
Agreement be governed by the United Nations Convention on Contracts for the
International Sale of Goods; provided, however, that the provisions of this
Agreement relating to dispute resolution, as set forth in Section 12(g) below,
shall be governed exclusively by the United States Arbitration Act (9 U.S.C.
Section et. seq.) notwithstanding any different or contrary provision of state
law. The official text of this Agreement and any Appendix or any notice given or
accounts or statements required by this Agreement shall be in English. In the
event of any dispute concerning the construction or meaning of this Agreement,
reference shall be made only to this Agreement as written in English and not to
any other translation into any other language.
(g) Dispute Resolution. If a dispute arises between the parties
arising out of or in relation to this Agreement, the parties shall use all
reasonable efforts to resolve the dispute through good faith discussions. The
senior management of each of PMSI and the Company commits itself to respond
promptly to any such dispute. In the event that PMSI and the Company are unable,
after exerting all reasonable efforts, to resolve the said dispute, the said
dispute shall be finally settled through binding arbitration on the following
basis:
(i) The arbitration shall be conducted by a panel of three (3)
arbitrators under the International Arbitration Rules of the American
Arbitration Association then in force, by which each of PMSI and the Company
agrees to be bound. Within thirty (30) days after notice of arbitration has been
given, each of PMSI and the Company shall appoint one (1) arbitrator. The
arbitrators appointed by the parties shall then appoint a third arbitrator, who
shall serve as the presiding arbitrator.
(ii) If demand for arbitration is made by the Company, the place of
arbitration shall be Boston, Massachusetts, U.S.A, and if demand for arbitration
is made by PMSI, the place of arbitration shall be Tokyo, Japan.
(iii) The language to be used in the arbitration shall be English.
22.
<PAGE>
(iv) Any arbitrator may be of any nationality, and need not be a
lawyer or hold any other professional status or membership.
(v) The arbitral award shall be rendered in writing, shall state
the reasons for the award, and shall be final and binding upon the parties. In
no event shall the arbitral award include a sum for punitive damages.
(vi) Judgment upon any award may be entered by any court of
competent jurisdiction, or application may be made to such a court for judicial
acceptance of the award and any appropriate order including enforcement.
(vii) Each of PMSI and the Company shall bear its own expenses and
attorneys' fees in connection with the arbitration.
(h) Waiver. Any waiver (express or implied) by either party of any
default or breach of this Agreement shall not constitute a waiver of any other
or subsequent default or breach.
(i) Severability. In the event that any provision of this Agreement
shall be unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall not
render this Agreement unenforceable or invalid as a whole, and, in such event,
such provision shall be changed and interpreted so as to best accomplish the
objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
(j) Rights and Remedies Cumulative. Except as expressly provided
herein, the rights and remedies provided in this Agreement shall be cumulative
and not exclusive of any other rights and remedies provided by law or otherwise.
(k) No Agency - Independent Contractors. The Company shall act as an
independent contractor under the terms of this Agreement. The Company is not,
and shall not be deemed to be, an employee, agent, partner or legal
representative of PMSI for any purpose. The Company shall not be entitled to
enter into any contracts in the name of, or on behalf of PMSI, nor shall the
Company be entitled to pledge the credit of PMSI in any way or hold itself out
as having authority to do so.
(l) Captions and Section References. The section headings appearing in
this Agreement are inserted only as a matter of convenience and in no way
define, limit, construe or describe the scope or extent of such section or in
any way affect such section.
23.
<PAGE>
(m) Counterparts. This Agreement may be executed in counterparts with
the same force and effect as if each of the signatories had executed the same
instrument.
(n) No Limitation on Supplier PMSI. Nothing in this Agreement shall be
construed so as to preclude PMSI from selling or otherwise marketing any of the
Software to (i) any Customer outside the Territory, (ii) any value added
reseller or original equipment manufacturers outside the Territory, or (iii) any
other distributors outside the Territory.
(o) Parties Advised by Counsel -- No Interpretation Against Drafter.
This Agreement has been negotiated between unrelated parties who are
sophisticated and knowledgeable in the matters contained in this Agreement and
who have acted in their own self interest. In addition, each party has been
represented by legal counsel. Accordingly, any rule of law, including Section
1654 of the California Civil Code, as well as any other statute, law, ordinance,
or common law principles or other authority of any jurisdiction of similar
effect, or legal decision that would require interpretation of any ambiguities
in this Agreement against the party who has drafted it is not applicable and is
hereby waived. The provisions of this Agreement shall be interpreted in a
reasonable manner to effect the purpose of the parties, and this Agreement shall
not be interpreted or construed against any party to this Agreement because that
party or any attorney or representative for that party drafted this Agreement or
participated in the drafting of this Agreement.
(p) Authority to Enter Into and Execute Agreement. Both parties
represent and warrant to each other that they have the right and lawful
authority to enter into this Agreement for the purposes herein and that there
are no other outstanding agreements or obligations inconsistent with the terms
and provisions hereof.
24.
<PAGE>
Appendix A
SOFTWARE
(attached)
26.
<PAGE>
APPENDIX B
POLYGEN (PMSI) STANDARD SOFTWARE LICENSE AGREEMENT
(attached)
27.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be signed and delivered by their duly authorized representatives as of the
date first set forth above.
POLYGEN CORPORATION
By: /s/ MICHAEL J. SAVAGE
President
TEIJIN MOLECULAR SIMULATIONS INCORPORATED
By: /s/ Takehisa Tokunaga
-----------------------
Name: Takehisa Tokunaga
Title:
25.
<PAGE>
Appendix A: Software
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING PRODUCTS PRICE LIST
PRICING SUMMARY
JAPAN END-USER BUNDLED PRICE LIST
EFFECTIVE JANUARY 01, 1992
--------------------------------------------------
PRICES ARE VALID ONLY WHEN PURCHASED WITH HARDWARE
--------------------------------------------------
Prices include software documentation, but do not include
hardware, installation, training, or continuing license fees.
SYSTEM SOFTWARE DESKTOP
-----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN. SU
-----------------------------------------------------------------------------------------------------------------------
XGBEXX BIOGRAF (Indigo) 2.2 Now Yen 5,250,000 Yen 2,265,000 4320
XGNMEXX NMRgraf (Indigo) 2.2 Now Yen 3,500,000 Yen 1,750,000 2880
POLEXX Polaris (Indigo) 3.0 Now Yen 2,625,000 Yen 1,312,500 2160
XGPGEXX POLYGRAF (Indigo) 2.2 Now Yen 7,000,000 Yen 3,500,000 5760
QNTXX QUANTA (Indigo) 3.2 Now Yen 3,750,000 Yen 1,875,000 3600
QINORGXX Inorganic Solids Modeling 3.2 Now Yen 3,750,000 Yen 1,875,000 2550
QPOLYXX Polymer Dynamics 3.2 Now Yen 3,750,000 Yen 1,875,000 2550
QPROTXX Protein Modeling 3.2 Now Yen 3,750,000 Yen 1,875,000 2550
QSTARXX X-Ray Structure Analysis 3.2 Now Yen 3,750,000 Yen 1,875,000 2550
NOTE: If QUANTA is purchased, at least one copy of networked CHARMm
must be available for use.
SYSTEM SOFTWARE PERSONAL
-----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN. SU
-----------------------------------------------------------------------------------------------------------------------
XGBEXX BIOGRAF (SGI/IBM) 2.2 Now Yen 7,000,000 Yen 3,500,000 5760
XGNMEXX NMRgraf (SGI/IBM) 2.2 Now Yen 5,250,000 Yen 2,625,000 4320
POLEXX Polaris (SGI) 3.0 Now Yen 4,375,000 Yen 2,187,500 3600
XGPGEXX POLYGRAF (SGI/IBM) 2.2 Now Yen 10,500,000 Yen 5,250,000 8640
QNTXX QUANTA (SGI/IBM) 3.2 Now Yen 6,240,000 Yen 3,120,000 6000
QINORGXX Inorganic Solids Modeling 3.2 Now Yen 4,992,000 Yen 2,496,000 3400
QPOLYXX Polymer Dynamics 3.2 Now Yen 4,992,000 Yen 2,496,000 3400
QPROTXX Protein Modeling 3.2 Now Yen 4,992,000 Yen 2,496,000 3400
QSTARXX X-Ray Structure Analysis 3.2 Now Yen 4,992,000 Yen 2,496,000 3400
NOTE: If QUANTA is purchased, at least one copy of networked CHARMm
must be available for use.
--------------------------------------
PRICE PER SERVICE UNIT (SU)
--------------------------------------
Level 1 Level 2
Commercial Yen 220 Yen 265
Academic Yen 35 Yen 105
--------------------------------------
Proprietary and Confidential Polygen/Molecular Simulations Japan Price List
January 30, 1992
<PAGE>
System Software Professional/Power
________________________________________________________________________________
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN. SU
_______________________________________________________________________________________________________________
XGBHXX BIOGRAF (SGI/IBM) 2.2 Now Yen10,500,000 Yen5,250,000 8640
XGNMHXX NMRgraf (SGI/IBM) 2.2 Now Yen 8,750,000 Yen4,375,000 7200
POLHXX Polaris (Stardent/SGI) 3.0 Now Yen 6,125,000 Yen3,062,500 5040
XGPGHXX POLYGRAF (SGI/IBM) 2.2 Now Yen15,750,000 Yen7,875,000 2960
QNTXX QUANTA (SGI/IBM) 3.2 Now Yen 6,240,000 Yen3,120,000 6000
QINORGXX Inorganic Solids Modeling 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QPOLYXX Polymer Dynamics 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QPROTXX Protein Modeling 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QSTARXX X-Ray Structure Analysis 3.2 Now Yen 4,992,000 Yen2,496,000 3400
Note: If QUANTA is purchased, at least one copy of networked CHARMm must be available for use.
QUANTA Options SGI/IBM
_______________________________________________________________________________________________________________
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN. SU
_______________________________________________________________________________________________________________
QBDSXX Brownian Dynamics Sim 3.2 Now Yen 2,500,000 Yen1,250,000 1705
Note: Purchase of Brownian Dynamics requires purchase of UHBD.
QCRYSTXX Crystal Modeling 3.2 Now Yen 2,125,000 Yen1,062,500 1450
QHELIXXX Helix Modeling 3.2 Now Yen 2,125,000 Yen1,062,500 1450
QMM2XX MM2 Interface 3.2 Now Yen 1,250,000 Yen 625,000 850
QPBEXX Poisson-Boltzmann Electro 3.2 Now Yen 2,125,000 Yen1,062,500 1450
Note: Purchase of Poisson-Boltmann Electrostatics requires purchase of UHBD.
QOPINTXX QUANTA Open Interface 3.2 Now Yen 5,000,000 Yen2,500,000 3410
QQMIXX Quantum Mechanics Interface 3.2 Now Yen 2,500,000 Yen1,250,000 1705
QNMRSXX NMR Structure 3.2 Dec, 1991 Yen 4,992,000 Yen2,496,000 2400
QUANTA NMR Software SGI/IBM
_______________________________________________________________________________________________________________
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN. SU
_______________________________________________________________________________________________________________
QMADXX MADNMR x Now Yen 3,750,000 Yen1,825,000 2555
QMADPXX MADNMR+ x Now Yen 6,250,000 Yen3,125,000 4260
QDISNOEXX DISCON/NOESYSIM x Now Yen 2,500,000 Yen1,250,000 1705
__________________________________
PRICE PER SERVICE UNIT(SU)
__________________________________
Level 1 Level 2
Commercial Yen 220 Yen 265
Academic Yen 35 Yen 105
__________________________________
Polygen/Molecular Simulations Japan Price List
January 30, 1992 Proprietary and Confidential
<PAGE>
CERIUS SOFTWARE SGI/IBM
-------------------------------------------------------------------------------
Part Number Description Revision Availability Commercial Academic Ann.SU
--------------- ------------------------------ -------- ------------ ------------ ------------ ------
BUILDER MODULES
CSVSXX Visualizer (required for all) 2.3 Now Yen 437,500 Yen 218,750 400
CSCRXX Crystals 2.3 Now Yen1,312,500 Yen 656,250 1200
CSCLRXX Surfaces 2.3 Mar., 1992 Yen 437,500 Yen 218,750 400
CSINTXX Interfaces 3.0 Mar., 1992 Yen 437,500 Yen 218,750 400
CSPLXX Polymers 2.3 Now Yen 437,500 Yen 218,750 400
CALCULATION MODULES
CSOF1XX Open Force Field MM/MD(1) 3.0 Mar., 1992 Yen6,562,500 Yen3,281,500 6000
CSOF2XX Open Force Field MM/MD(2) 3.0 Mar., 1992 TBD TBD TBD
CSSRPXX Sorption 2.3 Now Yen2,187,500 Yen1,093,750 2000
CSPCKXX Crystal Packer 2.3 Now Yen1,312,500 Yen 656,250 1200
CSMPXX MopacU1 2.3 Now Yen 875,000 Yen 437,500 800
CSSMXX Statmech 2.3 Now Yen2,625,000 Yen1,312,500 2400
CSDLSXX DLS-UI 2.3 Now Yen1,093,750 Yen 546,875 1000
CSDF1XX Diffraction I 2.3 Now Yen2,625,000 Yen1,312,500 2400
CSDF2XX Diffraction II 2.3 Now Yen1,750,000 Yen 875,000 1600
CSDF3XX Diffraction III 2.3 Now Yen1,093,750 Yen 546,875 1000
CSDF4XX Diffraction IV 2.3 Now Yen2,625,000 Yen1,312,500 2400
CSRTVXX Rietveld 3.0 Mar., 1992 Yen1,750,000 Yen 875,000 1600
CSHRXX HRTEM 2.3 Now Yen2,625,000 Yen1,312,500 2400
NOTE: PRICES INCLUDE FIRST YEAR MAINTENANCE
NOTE: DLS-UI, Sorption, Diffraction I, Diffraction III, HRTEM,
Surfaces, Interfaces, Crystal Packer, and Rietveld require CERIUS
Crystals.
NOTE: StatMech requires CERIUS Polymers.
NOTE: When quoting Open Force Field MM/MD, all Builder Modules should
be included in the quote.
NOTE: Open Force Field MM/MD) (1) is for Desktop and Personal/Entry
machines only. Open Force Field MM/MD (2) is for Professional and Power
machine only.
AVS CHEMISTRYVIEWER
-------------------------------------------------------------------------------
Part Number Description Revision Availability Commercial Academic Ann.SU
--------------- ------------------------------ -------- ------------ ------------ ------------ ------
Chemistry Viewer alone Yen1,312,500 Yen 656,250 720
Chemistry Viewer with AVS Yen1,750,000 Yen 875,000 1440
NOTE: First year maintenance is required with AVS and Chemistry Viewer
------------------------------
Price per Service Unit (SU)
------------------------------
Level 1 Level 2
Commercial Yen220 Yen265
Academic Yen 35 Yen105
------------------------------
Proprietary Polygen/Molecular Simulations Japan Price List January 30, 1992
and
Confidential
<PAGE>
CHARMm ALL PLATFORMS
----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN. SU
----------------------------------------------------------------------------------------------------------------------
CDESKXX Desktop CHARMm 21.3 Now Yen 3,750,000* Yen 1,875,000* 2550
CPERSXX Personal CHARMm 21.3 Now Yen 5,990.000* Yen 2,995.000* 4085
CPROFXX Professional CHARMm 21.3 Now Yen10,500.000* Yen 5,250.000* 7160
CPARLXX Power CHARMm 21.3 Now Yen18,000.000* Yen 9,000.000* 12270
NOTE: At least one copy of networked CHARMm must be available for use.
Above prices (*) effective only at time of purchase with QUANTA
and include standard discounts. For individual CHARMm pricing,
see pricing below.
NOTE: Desktop CHARMm is only available for the SGI Indigo.
CPERSXX Personal Stand-alone CHARMm 21.3 Now Yen11,980,000 Yen 5,990,000 8165
CPROFXX Professional Stand-alone CHARMm 21.3 Now Yen15,000.000 Yen 7,500.000 10225
CPARLXX Power Batch stand-alone CHARMm 21.3 Now Yen22,500.000 Yen11,250.000 15340
CSUPRXX Super stand-alone CHARMm 21.3 Now Yen55,000.000 Yen27,500.000 37500
CSUPRLXX Ltd. License Super CHARMm 21.3 Now Yen33,000.000 Yen16,500.000 22500
CSRCXX CHARMm Source Code 21.3 Now Yen12,500.000 Yen 6,250.000 8520
NOTE: CHARMm source code may only be purchased in addition to a
standard CHARMm object license.
X-PLOR ALL PLATFORMS
----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN. SU
----------------------------------------------------------------------------------------------------------------------
XPERSXX Personal X-PLOR 2.11 Now Yen 7,488,000 Yen 3,744,000 5105
XPROFXX Professional X-PLOR 2.11 Now Yen11,000.000 Yen 5,500.000 7500
XPARLXX Power X-PLOR 2.11 Now Yen16,000.000 Yen 8,000.000 10900
XSUPRXX Super X-PLOR 2.11 Now Yen33,500,000 Yen16,750,000 22840
XSUPRLXX Ltd. License Super X-PLOR 2.11 Now Yen19,500.000 Yen 9,750.000 13295
XSRCXX X-PLOR Source Code 2.11 Now Yen12,500.000 Yen 6,250.000 8250
NOTE: X-PLOR source code may only be purchased in addition to a
standard X-PLOR object license.
UHBD ALL PLATFORMS
----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN. SU
----------------------------------------------------------------------------------------------------------------------
UPERSXX Personal UHBD 2.2 Now Yen10,000,000 Yen 5,000,000 6820
UPROFXX Professional UHBD 2.2 Now Yen11,250.000 Yen 5,625.000 7670
UPARLXX Power UHBD 2.2 Now Yen12,500.000 Yen 6,250.000 8250
GRAF Batch ALL PLATFORMS
----------------------------------------------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN. SU
----------------------------------------------------------------------------------------------------------------------
GRAFBXX Alliant version Now Yen10,500,000 Yen 5,250,000 8640
GRAFBXX DEC version Now Yen 8,750.000 Yen 4,375.000 7200
GRAFBXX Convex version Now Yen14,000.000 Yen 7,000.000 11520
GRAFBXX Cray version Now Yen17,500.000 Yen 8,750.000 14400
Polygen/Molecular Simulations Japan Price List
January 30, 1992
Proprietary and Confidential
<PAGE>
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING PRODUCTS PRICE LIST
HARDWARE CONFIGURATION SUMMARY
EFFECTIVE OCTOBER 01, 1991
----------------------------------------------------------
SILICON GRAPHICS IRIS 4D SERIES
-----------------------------------------------------------------------------------------------------------------------------------
MACHINE CATEGORY MFLOPS MIPS MEMORY DISK(1) TAPE O/S OTHER
-----------------------------------------------------------------------------------------------------------------------------------
Indigo Desktop xx xx 16 432/54 1/4" cartridge 4.0.0 Note 2
4D/25 G/TG Personal/Entry xx xx 16 380/54 1/4" cartridge 3.3.3 Note 2
4D/35 G/TG Personal/Entry xx xx 16 380/54 1/4" cartridge 3.3.3 Note 2
4D/310 GTX/VGX Professional/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/320 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/340 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/380 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/420 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/440 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/480 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
----------------------------------------------------------
IBM RISC SYSTEM/6000 SERIES
-----------------------------------------------------------------------------------------------------------------------------------
MACHINE CATEGORY MFLOPS MIPS MEMORY DISK(1) TAPE O/S OTHER
-----------------------------------------------------------------------------------------------------------------------------------
<FN>
Series 320 Personal/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 520 Professional/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 530 Personal/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 540 Power/High-End xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 550 Power/High-End xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
----------------------------------------------------------
EVANS & SUTHERLAND ESV SERIES
-----------------------------------------------------------------------------------------------------------------------------------
MACHINE CATEGORY MFLOPS MIPS MEMORY DISK(1) TAPE O/S OTHER
-----------------------------------------------------------------------------------------------------------------------------------
ESV-5 Entry 4.0 xx xx/xx xx xx
All others High-End 4.0 xx xx/xx xx xx
Proprietary and Confidential Polygen/Molecular Simulations Japan Price List
January 30, 1992
<PAGE>
--------------------------------------------------------------------------------
BATCH PROCESSORS
--------------------------------------------------------------------------------
Machine Category MFLOPS MIPS Memory Disk(1) Tape O/S Other
-------------------------------------------------------------------------------------------------------------
Alliant FX40,80 Power/Batch xx xx xx xx mm cartridge 2.1.02
Alliant FX2800 Power/Batch xx xx xx xx mm cartridge 2.1.02
Convex C-1 Power/Batch xx xx xx xx Reel-to-reel xx Note 4
Convex C-2 Power/Batch xx xx xx xx Reel-to-reel xx
Cray X,Y-MP Super/Batch xx xx xx xx Reel-to-reel 6.0
Cray 2 Super/Batch xx xx xx xx Reel-to-reel 6.0
DEC Batch xx xx xx xx Reel-to-reel xx Note 4
IBM 3090 MVS Super xx xx xx xx Reel-to-reel xx Note 5
IBM 3090 VM. Super xx xx xx xx Reel-to-reel xx Note 5
IBM 3090 AIX Super xx xx xx xx Reel-to-reel xx Note 5
-------------------------------------------------------------------------------
HARDWARE NOTES
-------------------------------------------------------------------------------
1. Under the Disk column, the first number is the minimum total disk space
required while the second number is the minimum swap space required.
2. FORTRAN is required for the QUANTA Open Interface.
3. The following IBM RS/6000 hardware configuration is required for
QUANTA/CHARMm software: 24-bit 3D graphics, 24-bit Z-buffer, Ethernet
LAN adaptor, and the FORTRAN 2.01 run-time libraries (xlfrte 02.01).
4. CHARMm, X-PLOR, and UHBD are not supported on the Convex C-1.
5. GRAF Batch is not supported on the IBM 3090.
------------------------------------------------------------------------------
PART NUMBERS
-------------------------------------------------------------------------------
Replace XX in all software part numbers with the following machine codes:
--------------------------------------------------------------------------------------------------------------
4D All SGI 4D series except Indigo DT SGI Indigo ST Stardent Titan
ES E&S ESV RS All IBM RS/6000 series
FX Alliant C1 Convex C-1 C2 Convex C-2
CX Cray X-MP CY Cray Y-MP CR Cray 2
MV IBM 3090 MVS VM IBM 3090 VM/CMS AX IBM 3090 AIX
VS DEC VMS
January 30, 1992 Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential
<PAGE>
CONTINUING LICENSE/MAINTENANCE
Part Number Description Academic Price/S.U. Commercial Price/S.U.
---------------------------------------------------------------------------------------------
SL1SS Level 1 (Standard Support) Yen35 Yen220
Provides the following services:
Continuing license fee
Upgrade of existing software
Hotline support of products: Calls returned within 4 hours of receipt
SL2SS Level 2 (Scientific Support) Yen105 Yen265
Provides the following services:
Continuing license fee
Upgrade of existing software
Hotline support of products: Calls returned within 1 hour of receipt
Monthly status calls from senior scientific staff members
Monthly report of software problems
Scientific support for modeling problems
SCIENTIFIC PROGRAMS
Part Number Description Cost/Time Period
----------------------------------------------------------------
SSCON Scientific Consulting Yen175,000 per day
SPMDL Molecular Design Lab Yen700,000 per week
Seat in Introductory Molecular Modeling Course
Use of software on a dedicated machine
Access to Polygen and Harvard scientists
NOTE: A minimum of two weeks is required.
TRAINING PROGRAMS
Part Number Description Cost/Time Period
------------------------------------------------------------------------
Introductory Molecular Modeling Yen175,000/3 days
Advanced CHARMm Yen262,500/2 days
Advanced Protein Modeling Yen262,500/2 days
Advanced Polymer Modeling Yen262,500/2 days
Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential January 30, 1992
<PAGE>
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING SOFTWARE PRODUCTS
POLICIES AND PROCEDURES
EFFECTIVE JANUARY 01, 1992
TITLE
All right, title and interest in and to the software licensed and any related
documentation and any copies thereof which may be made by licensee are and shall
remain the exclusive property of licensor or licensor's licensor, as to software
sublicensed by licensor to licensee; licensor and its licensors are collected
referred to as the software owners. Any third party software designated in the
applicable price list as subject to a separate license agreement is subject to
the terms of the agreement accompanying such software. Each software owner shall
have the right to enforce this agreement against licensee as to such software
owner's software.
SOFTWARE LICENSE FEES
Use of the software by licensee shall be subject to the licensee signing the
Polygen/Molecular Simulations Standard Software License Agreement.
UNBUNDLED FEE
In the instance where software is not purchased with hardware, the software list
price shall be increased by an additional amount equal to twenty percent (20%)
of such software list price (the unbundled fee).
PAYMENT TERMS
Unless otherwise arranged, Polygen/Molecular Simulations will invoice purchaser
at the time of shipment of each installment on payment terms of each on
delivery, except where open account credit is established and maintained to
Polygen/Molecular Simulations' satisfaction, in which case payment terms shall
be net 30 days from date of shipment. Purchaser shall make all payments as
provided without regard to whether purchaser has made or may make any inspection
or use of any goods delivered. Any invoiced amount which is not paid when due
shall bear interest at the rate of 2% per month or the highest rate then
permitted by law, whichever is less.
WARRANTY
The software as delivered and installed on the designated system will conform
substantially to licensor's then current published program specifications.
Licensee acknowledges, however, that the software is of such complexity that it
may have inherent or latent defects and agrees that as licensee's sole remedy
licensor will exercise its best efforts to correct documented program errors
which licensors's analysis indicates are caused by a defect in the unaltered
version of the delivered software as installed on an unaltered designated
system. Licensor does not guarantee the results of any such services or
represent or warrant that any such error will be corrected. The foregoing
warranty extends only to licensee and is not applicable to any transferee of the
software license.
LICENSE TRANSFER POLICY
All computers and software are expected to be written off over four years.
Customers will be able to transfer their current software license to a faster
computer (at the same site) and receive a credit equal to 25% of the lower of
the price actually paid or the current price for the license for each year left
in the four years since shipment to the customer by Polygen/Molecular
Simulations. To receive this credit, the customer must be current on
maintenance.
<PAGE>
TERMS AND CONDITIONS
Software orders must be accompanied by the software quotation with standard
quote terms and conditions and a standard software license agreement. Loaners
must be accompanied by a standard software loaner agreement. Any software
purchase or loaner which does include the above documents or which documents
deviate from standard terms must be approved in advance.
QUOTE VALIDITY
Software quotes are valid for 30 days only.
SOFTWARE LOANER PERIOD
Unless otherwise arranged; software to commercial organizations may only be
loaned for a period of 15 days: software to academic institutions may only be
loaned for a period of 30 days.
<PAGE>
APPENDIX B
POLYGEN (PMSI) STANDARD SOFTWARE LICENSE AGREEMENT
This Software License Agreement (the "Agreement") is made and entered
into as of _________________, 19__ by and between Polygen Corporation having a
principal place of business at 200 Fifth Avenue, Waltham, MA 02154 ("LICENSOR")
and ______________________________________________ having a principal place of
business at _____________________________________________ ("LICENSEE").
1. DEFINITIONS.
A. "Software" shall mean each computer program, in machine readable
form, furnished by LICENSOR to LICENSEE hereunder, including related supporting
materials and all updates thereto, if any.
B. "Designated System" shall mean the computer hardware identified by
the serial number(s) and located at the address set forth below.
2. GRANT OF LICENSE.
Subject to the terms and conditions of this Agreement, LICENSOR hereby
grants to LICENSEE a non-exclusive, non-transferable license to use the Software
to operate and run solely on a Designated System for the term of this Agreement.
3. REPRODUCTION.
LICENSEE may make no more than three (3) copies of each Software
program for LICENSEE's own use on the Designated System for back-up purposes
only. Except as provided in this paragraph 3, LICENSEE shall make no additional
copies of, nor allow others to copy any of the Software without LICENSOR's prior
written consent. LICENSE shall duplicate the copyright notice and any
proprietary rights legend on all Software copies hereunder.
4. TITLE.
All right, title and interest in and to the Software licensed hereunder
and any related documentation, and any copies thereof which may be made by
LICENSEE are and shall remain the exclusive property of LICENSOR or LICENSOR's
licensor, as to Software sublicensed by LICENSOR to LICENSEE hereunder (LICENSOR
and its licensors are collectively referred to as the "Software Owners"). Any
third party Software designated in the applicable
1.
<PAGE>
price list as subject to a separate license agreement is subject to the terms of
the agreement accompanying such Software. Each Software Owner shall have the
right to enforce this Agreement against Licensee as to such Software Owner's
Software.
5. PROTECTION OF LICENSED SOFTWARE.
The Software is acknowledged by LICENSEE to include confidential and
proprietary information and trade secrets of the Software Owners in which
LICENSEE has no rights other than as granted by this Agreement. LICENSEE
acknowledges that unauthorized copying or disclosure of the Software will cause
irreparable injury to the Software Owners and that the Software Owners shall be
entitled to, among other things, enjoin such activities. LICENSEE agrees not to
provide or otherwise make available any Software in any form without LICENSOR's
prior written consent. LICENSEE agrees that the Software is being licensed
hereunder for LICENSEE's internal use and that LICENSEE may not make the
Software available to third parties in connection with any form of time-sharing
service. LICENSEE agrees not to create source code for the Software nor to
translate the Software into any other computer or natural language, nor to
attempt to do so or provide assistance to others to do so. LICENSEE further
agrees to take appropriate action to satisfy its obligations hereunder with
respect to use, copying , modification and protection of the Software by
suitable instructions to its employees or other persons who are permitted access
to the Software, or to any documentation describing or disclosing the same.
LICENSEE shall have no liability under this paragraph 5 for disclosure
of information supplied by LICENSOR if and to the extent that: (a) LICENSEE
establishes that the information was already known to LICENSEE, without
obligation to keep it confidential, at the time of its receipt from LICENSOR, as
disclosure, (b) LICENSEE establishes that the information was received by
LICENSEE in good faith from a third party lawfully in possession thereof and
having no obligation to keep such information confidential, or (c) LICENSEE
establishes that the information was publicly known at the time of its receipt
by LICENSEE from LICENSOR or has become publicly known other than by a breach of
the Agreement or other action by LICENSEE.
6. SOFTWARE INSTALLATION/ACCEPTANCE.
Unless otherwise agreed in writing, Software installation shall take
place following execution of this Agreement upon Designated System(s) which
LICENSEE has notified LICENSOR in writing are operational and available for
installation during normal working hours on normal working days, excepting
LICENSEE or LICENSOR-observed holidays. LICENSEE shall pay to LICENSOR an
installation fee in the amount indicated in the Quotation of
2.
<PAGE>
which this Agreement forms a part. LICENSEE shall allow LICENSOR full access to
the installation site during Software installation and shall provide reasonable
working facilities and scratch media as required in order to effect
installation, all without charge. LICENSOR installation personnel shall subject
the Software as installed on a Designated System to LICENSOR's then current
standard published software acceptance test procedure, and LICENSEE agrees to
provide written confirmation of successful completion of such test procedure on
demand. LICENSEE's use of the Software for any purpose other than testing or
training purposes shall be deemed to constitute acceptance.
7. SOFTWARE LICENSE FEES.
Use of the Software by LICENSEE shall be subject to the payment of
Initial and Quarterly License Fees for each Software product on each Designated
System in the amounts specified on the Quotation of which this Agreement forms a
part. Initial License Fees shall be due and payable as of the date on which
LICENSEE accepts or is deemed to accept the Software ("Acceptance Date"), and
Quarterly License fees shall be due and payable commencing on the first day of
the month which is the same as or first follows the Acceptance Date, inclusive
of a pro rata amount for the period between the Acceptance Date and the first
payment date, and on the first day of every third month thereafter. All license
fees shall be due and payable in United States Dollars.
Quarterly License Fee rates shall remain in effect for four (4)
consecutive quarters. Subject to the foregoing, LICENSOR shall have the right to
increase such rates prospectively on an annual basis in a uniform manner with
respect to all LICENSEEs upon three (3) months advance written notice to take
effect with the quarter which first commences following the expiration of such
notice period.
8. TERM AND TERMINATION.
A. This Agreement is effective from the date first written above
("Commencement Date") until termination as provided herein. Upon termination,
LICENSEE shall cease all use of the Software and shall return to LICENSOR the
original(s) and any and all copies of the Software made or furnished hereunder.
B. This Agreement may be terminated by LICENSEE by written notice to
LICENSOR given no later than sixty (60) days prior to any anniversary of the
Commencement Date, to take effect as of such anniversary date.
C. This Agreement may be terminated by LICENSOR sixty (60) days
following the giving of written notice to LICENSEE upon the occurrence of the
following:
3.
<PAGE>
(a) Upon failure of LICENSEE to perform any of its existing or future
obligations hereunder if such breach shall continue for a period of fifteen (15)
days after receipt by LICENSEE of written notice from LICENSOR specifying such
breach;
(b) In the event (i) LICENSEE makes a general assignment for the
benefit of creditors, or transfers all or substantially all of its assets to a
receiver or a trustee in bankruptcy, (ii) a proceeding is commenced against
LICENSEE for relief under bankruptcy or similar laws and such proceeding is not
dismissed within thirty (30) days, or (iii) LICENSEE is adjudged insolvent or
bankrupt; or
(c) Upon any attempt by LICENSEE to assign this Agreement or any rights
or obligations hereunder without LICENSOR's prior written consent.
9. INDEMNITY.
LICENSOR will defend at its own expense any action against LICENSEE to
the extent it is based on a claim of direct infringement of a United States
patent, trademark or copyright by the LICENSOR Software licensed hereunder, and
pay those damages and costs finally awarded against LICENSEE in such action
which are attributable to such claim, provided LICENSEE notifies LICENSOR
promptly in writing of any such action and all prior related claims and gives
LICENSOR (at LICENSOR's expense) sole control of the defense of same and all
negotiations for its settlement or compromise. Should any such Software become,
or in LICENSOR's opinion be likely to become, the subject of a claim of
infringement, LICENSEE shall permit LICENSOR, at its option and expense, to
either: (a) procure for LICENSEE the right to continue using the Software, or
(b) replace or modify the Software to become noninfringing. Notwithstanding the
foregoing, LICENSOR shall have no liability for any claim of infringement based
upon (a) the operation or use of the Software in combination with any other
hardware or software not supplied by LICENSOR, or (b) LICENSEE's modification to
the Software if such claim could have been avoided by the absence of such
modification.
THE FOREGOING STATES THE ENTIRE LIABILITY OF LICENSOR WITH RESPECT TO
INFRINGEMENT OF ANY PROPERTY RIGHT OF A THIRD PARTY BY THE SOFTWARE OR ANY
PORTION THEREOF ALONE OR IN COMBINATION WITH ANY OTHER PRODUCT.
10. WARRANTY.
For each item of Software, LICENSOR warrants for thirty (30) days from
the date such Program is installed at LICENSEE's facilities (the "Installation
Date"), that such Software, unless modified by LICENSEE, will perform the
functions described in the
4.
<PAGE>
documentation provided by LICENSOR to LICENSEE when properly operated on the
Designated System and LICENSOR will undertake to correct any reported,
reproducible and repeatable error condition in accordance with LICENSOR's
then-prevailing Software Support Policies. LICENSOR does not warrant that the
operation of the Software will be uninterrupted or error-free, that all Program
errors will be corrected, that the Software will satisfy LICENSEE's
requirements, or that the Software will operate in the combinations which
LICENSEE may select for use. For any breach of the above warranties, LICENSEE's
exclusive remedy, and LICENSOR's entire liability, shall be the exercise of best
efforts by LICENSOR to correct (including suitable workarounds) the Software
errors.
11. LIMITATION OF LIABILITY.
EXCEPT FOR THE EXPRESS WARRANTY IN PARAGRAPH 10 ABOVE, LICENSOR GRANTS
NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE, EXCLUDING
HEREBY ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR
OBLIGATIONS OF LICENSOR FOR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE
DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE.
LICENSEE agrees that LICENSOR's liability hereunder for damages,
including but not limited to liability for infringement, shall not exceed the
charges paid by LICENSEE for the particular Software involved. LICENSEE further
agrees that LICENSOR will not be liable for any lost profit, or for any claim or
demand against LICENSEE by any other party, except a claim for patent, trademark
or copyright infringement as provided herein.
IN NO EVENT WILL LICENSOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF
LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. ASSIGNMENT.
This Agreement, including all rights and obligations hereunder, is not
assignable without the prior written consent of LICENSOR. Notwithstanding the
foregoing, upon any sale of the Designated System by LICENSEE to a third party,
LICENSEE shall require such party to enter into a License Agreement with
LICENSOR on LICENSOR's then current standard terms.
13. TAXES.
All license fees and amounts payable to LICENSOR under the terms of
this Agreement and the Quotation of which it forms a part are not of and shall
not be reduced by any tax, including, but not by way of limitation, any use,
sales, property, import, duty, export, withholding, gross receipts, or
value-added tax or
5.
<PAGE>
other tax or charge of similar nature imposed by any governmental authority upon
or with respect to LICENSOR or LICENSEE, this license, or the license fees
payable hereunder, excepting only a tax on LICENSOR's net business income.
LICENSEE agrees to indemnify and hold LICENSOR harmless from any such taxes and
to pay the same promptly on presentation of LICENSOR's invoice for the same.
14. GENERAL.
The provisions of the Agreement shall control over the terms of any
present or future agreement except to the extent such agreement expressly
provides otherwise.
This Agreement supersedes all prior agreements and understandings
between the parties related to the subject matter herein and is intended by the
parties as the complete and exclusive statement of the terms of this Agreement.
If any of the provisions of this Agreement are invalid under any applicable
statute or rule of law they are, to the extent they are invalid, deemed omitted,
and the remainder of this Agreement shall remain in full force and effect. This
Agreement is made in the Commonwealth of Massachusetts, and shall be construed,
and the legal relations between the parties hereto determined, in accordance
with the laws applicable to contracts made by Massachusetts residents in, and to
be performed in, Massachusetts. The parties hereto consent to personal
jurisdiction before and venue in any court of Boston, Massachusetts with respect
to any dispute arising under this Agreement. If either party fails to perform
any term of this Agreement and the other party does not enforce that term,
failure to enforce on that occasion shall not prevent enforcement on later
occasions.
15. MODIFICATION.
Any deviations from or additions to the terms of this Agreement must be
in writing and will not be valid unless confirmed in writing by duly authorized
officers of LICENSOR and LICENSEE.
16. NOTICES.
All notices, requests, and demands given to or made upon LICENSOR or
LICENSEE hereunder shall be in writing and delivered or mailed to the address
first indicated above, or to such other
6.
<PAGE>
address as LICENSOR or LICENSEE shall designate in writing from time to time.
POLYGEN CORPORATION ("LICENSOR")
By:_____________________________
Name: __________________________
_________________________
LICENSEE
By:_____________________________
Name:___________________________
___________________________
7.
<PAGE>
SERIAL NUMBERS AND LOCATION OF DESIGNATED SYSTEM(S)
Software________________________________ Software_________________________
System Type___________________0/S_______ System Type_____________0/S______
Serial No. _____________________________ Serial No. ______________________
________________________________________ _________________________________
________________________________________ _________________________________
Software________________________________ Software_________________________
System Type_______________ 0/S__________ System Type_________0/S__________
Serial No. _____________________________ Serial No. ______________________
________________________________________ _________________________________
________________________________________ _________________________________
8.
<PAGE>
APPENDIX C
PRICE LIST
(attached)
28.
<PAGE>
APPENDIX C: PRICE LIST
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING PRODUCTS PRICE LIST
PRICING SUMMARY
JAPAN END-USER BUNDLED PRICE LIST
EFFECTIVE JANUARY 01, 1992
--------------------------------------------------
PRICES ARE VALID ONLY WHEN PURCHASED WITH HARDWARE
--------------------------------------------------
PRICES INCLUDE SOFTWARE AND DOCUMENTATION, BUT DO NOT INCLUDE
HARDWARE, INSTALLATION, TRAINING, OR CONTINUING LICENSE FEES.
-------------------------------------------------------------
SYSTEM SOFTWARE Desktop
-------------------------------------------------------------===========================================================
Part Number Description Revision Availability Commercial Academic Ann.SU
------------------------------------------------------------------------------------------------------------------------
XGBEXX BIOGRAF (Indigo) 2.2 Now Yen5,250,000 Yen2,265,000 4320
XGNMEXX NMRgraf (INdigo) 2.2 Now Yen3,500,000 Yen1,750,000 2880
POLEXX Polaris (Indigo) 3.0 Now Yen2,625,000 Yen1,312,500 2160
XGPGEXX POLYGRAF (Indigo) 2.2 Now Yen7,000,000 Yen3,500,000 5760
QNTXX QUANTA (Indigo) 3.2 Now Yen3,750,000 Yen1,875,000 3600
QINORGXX Inorganic Solids Modeling 3.2 Now Yen3,750,000 Yen1,875,000 2550
QPOLYXX Polymer Dynamics 3.2 Now Yen3,750,000 Yen1,875,000 2550
QPROTXX Protein Modeling 3.2 Now Yen3,750,000 Yen1,875,000 2550
QSTARXX X-Ray Structure Analysis 3.2 Now Yen3,750,000 Yen1,875,000 2550
NOTE: IF QUANTA is purchased, at least one copy of
networked CHARMm must be available for use.
-------------------------------------------------------------
SYSTEM SOFTWARE Personal
-------------------------------------------------------------===========================================================
Part Number Description Revision Availability Commercial Academic Ann.SU
------------------------------------------------------------------------------------------------------------------------
XGBEXX BIOGRAF (SGI/IBM) 2.2 Now Yen7,000,000 Yen3,500,000 5760
XGNMEXX NMRgraf (SGI/IBM) 2.2 Now Yen5,250,000 Yen2,625,000 4320
POLEXX Polaris (SGI) 3.0 Now Yen4,375,000 Yen2,187,500 3600
XGPGEXX POLYGRAF (SGI/IBM) 2.2 Now Yen10,500,000 Yen5,250,000 8640
QNTXX QUANTA (SGI/IBM) 3.2 Now Yen6,240,000 Yen3,120,000 6000
QINORGXX Inorganic Solids Modeling 3.2 Now Yen4,992,000 Yen2,496,000 3400
QPOLYXX Polymer Dynamics 3.2 Now Yen4,992,000 Yen2,496,000 3400
QPROTXX Protein Modeling 3.2 Now Yen4,992,000 Yen2,496,000 3400
QSTARXX X-Ray Structure Analysis 3.2 Now Yen4,992,000 Yen2,496,000 3400
NOTE: IF QUANTA is purchased, at least one copy of
networked CHARMm must be available for use.
---------------------------------------------------------
Price per Service Unit (SU)
---------------------------------------------------------
Level 1 Level 2
------- -------
Commercial Yen220 Yen265
Academic Yen 35 Yen105
---------------------------------------------------------
Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential January 30, 1992
<PAGE>
SYSTEM SOFTWARE PROFESSIONAL POWER
-------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN.SU
----------------------------------------------------------------------------------------------------------------------
XGBHXX BIOGRAF (SGI/IBM) 2.2 Now Yen10,500,000 Yen5,250,000 8640
XGNMHXX NMRgraf(SGI/IBM) 2.2 Now Yen 8,750,000 Yen4,375,000 7200
POLHXX Polaris(Stardent/SGI) 3.0 Now Yen 6,125,000 Yen3,062,500 5040
XGPGHXX POLYGRAF (SGI/IBM) 2.2 Now Yen15,750,000 Yen7,875,000 12960
QNTXX QUANTA (SGI/IBM) 3.2 Now Yen 6,240,000 Yen3,120,000 6000
QINORGXX Inorganic Solids Modeling 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QPOLYXX Polymer Dynamics 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QPROTXX Protein Modeling 3.2 Now Yen 4,992,000 Yen2,496,000 3400
QSTARXX X-Ray Structure Analysis 3.2 Now Yen 4,992,000 Yen2,496,000 3400
Note: If QUANTA is purchased, at least one copy of networked CHARMm must be available for use.
QUANTA OPTIONS SGI/IBM
-------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN.SU
----------------------------------------------------------------------------------------------------------------------
QBDSXX Brownian Dynamics Sim 3.2 Now Yen2,500,000 Yen1,250,000 1705
Note: Purchase of Brownian Dynamics requires purchase of UHBD
QCRYSTXX Crystal Modeling 3.2 Now Yen2,125,000 Yen1,062,500 1450
QHELIXXX Helix Modeling 3.2 Now Yen2,125,000 Yen1,062,500 1450
QMM2XX MM2 Interface 3.2 Now Yen1,250,000 Yen 625,000 850
QPBEXX Poisson-Bolzmann Electro 3.2 Now Yen2,125,000 Yen1,062,500 1450
Note: Purchase of Poisson-Boltmann Electrostatics requires purchase of UHBD
QOPINTXX QUANTA Open Interface 3.2 Now Yen5,000,000 Yen2,500,000 3410
QQMIXX Quantum Mechanics Interface 3.2 Now Yen2,500,000 Yen1,250,000 1705
QNMRSXX NMR Structure 3.2 Dec, 1991 Yen4,992,000 Yen2,496,000 2400
QUANTA NMR SOFTWARE SGI/IBM
-------------------------------------------------------------------------------
PART NUMBER DESCRIPTION REVISION AVAILABILITY COMMERCIAL ACADEMIC ANN.SU
----------------------------------------------------------------------------------------------------------------------
QMADXX MADNMR x Now Yen3,750,000 Yen1,825,000 2555
QMADPXX MADNMR+ x Now Yen6,250,000 Yen3,125,000 4260
QDISNOEXX DISCON/NOESYSIM x Now Yen2,500,000 Yen1,250,000 1705
----------------------------------------------------------
PRICE PER SERVICE UNIT (SU)
----------------------------------------------------------
Level 1 Level 2
Commercial Yen220 Yen265
Academic Yen 35 Yen105
----------------------------------------------------------
<PAGE>
CERIUS SOFTWARE SGI/IBM
Part Number Description Revision Availability Commercial Academic Ann. SU
-----------------------------------------------------------------------------------------------------------------------
Builder Modules
CSVSXX Visualizer (required for all) 2.3 Now Yen 437,500 Yen 218,750 400
CSCRXX Crystals 2.3 Now Yen 1,312,500 Yen 656,250 1200
CSCLRXX Surfaces 2.3 Mar., 1992 Yen 437,500 Yen 218,750 400
CSINTXX Interfaces 3.0 Mar., 1992 Yen 437,500 Yen 218,750 400
CSPLXX Polymers 2.3 Now Yen 437,500 Yen 218,750 400
Calculation Modules
CSOF1XX Open Force Field MM/MD (1) 3.0 Mar., 1992 Yen 6,562,500 Yen 3,281,500 6000
CSOF2XX Open Force Field MM/MD (2) 3.0 Mar., 1992 TBD TBD TBD
CSSRPXX Sorption 2.3 Now Yen 2,187,500 Yen 1,093,750 2000
CSPCKXX Crystal Packer 2.3 Now Yen 1,312,500 Yen 656,250 1200
CSMPXX MopacUI 2.3 Now Yen 875,000 Yen 437,500 .800
CSSMXX Statmech 2.3 Now Yen 2,625,000 Yen 1,312,500 2400
CSDLSXX DLS-UI 2.3 Now Yen 1,093,750 Yen 546,875 1000
CSDF1XX Diffraction I 2.3 Now Yen 2,625,000 Yen 1,312,500 2400
CSDF2XX Diffraction II 2.3 Now Yen 1,750,000 Yen 875,000 1600
CSDF3XX Diffraction III 2.3 Now Yen 1,093,750 Yen 546,875 1000
CSDF4XX Diffraction IV 2.3 Now Yen 2,625,000 Yen 1,312,500 2400
CSRTVXX Rietveld 3.0 Mar., 1992 Yen 1,750,000 Yen 875,000 1600
CSHRXX HRTEM 2.3 Now Yen 2,625,000 Yen 1,312,500 2400
NOTE: PRICES INCLUDE FIRST YEAR MAINTENANCE
NOTE: DLS-UI, Sorption, Diffraction I, Diffraction III, HRTEM, Surfaces,
Interfaces, Crystal Packer, and Rietveld require CERIUS Crystals.
NOTE: StatMech requires CERIUS Polymers.
NOTE: When quoting Open Force Field MM/MD, all Builder Modules should be
included in the quote.
NOTE: Open Force Field MM/MD (1) is for Desktop and Personal/Entry
machines only. Open Force Field MM/MD (2) is for Professional and
Power machine only.
AVS CHEMISTRYVIEWER ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic Ann. SU
---------------------------------------------------------------------------------------------------------------
ChemistryViewer alone Y1,312,500 Y656,250 720
ChemistryViewer with AVS Y1,750,000 Y875,000 1440
NOTE: First year maintenance is required with AVS and ChemistryViewer
---------------------------------------
PRICE PER SERVICE UNIT (SU)
---------------------------------------
Level 1 Level 2
Commercial Yen 220 Yen 265
Academic Yen 35 Yen 105
Proprietary and Confidential Polygen/Molecular Simulations Japan Price List
January 30, 1992
<PAGE>
CHARMm ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic Ann. SU
-------------------------------------------------------------------------------------------------------------------------
CDESKXX Desktop CHARMm 21.3 Now Yen 3,750,000* Yen 1,875,000* 2550
CPERSXX Personal CHARMm 21.3 Now Yen 5,990,000* Yen 2,995,000* 4085
CPROFXX Professional CHARMm 21.3 Now Yen 10,500,000* Yen 5,250,000* 7160
CPARLXX Power CHARMm 21.3 Now Yen 18,000,000* Yen 9,000,000* 12270
NOTE: At least one copy of networked CHARMm must be available for use. Above prices(*) effective
only at time of purchase with QUANTA and include standard discounts. For individual CHARMm
pricing, see pricing below.
NOTE: Desktop CHARMm is only available for the SGI Indigo.
CPERSXX Personal Stand-alone CHARMm 21.3 Now Yen 11,980,000 Yen 5,990,000 8165
CPROFXX Professional Stand-alone CHARMm 21.3 Now Yen 15,000,000 Yen 7,500,000 10225
CPARLXX Power Batch stand-alone CHARMm 21.3 Now Yen 22,500,000 Yen11,250,000 25340
CSUPRXX Super Stand-alone CHARMm 21.3 Now Yen 55,000,000 Yen27,500,000 37500
CSUPRLXX Ltd. License Super CHARMm 21.3 Now Yen 33,000,000 Yen16,500,000 22500
CSRCXX CHARMm Source Code 21.3 Now Yen 12,500,000 Yen 6,250,000 8520
NOTE: CHARMm source code may only be purchased in addition to a
standard CHARMm object license.
X-PLOR ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic Ann. SU
-------------------------------------------------------------------------------------------------------------------------
XPERSXX Personal X-PLOR 2.11 Now Yen 7,488,000 Yen 3,744,000 5105
XPROFXX Professional X-PLOR 2.11 Now Yen 11,000,000 Yen 5,500,000 7500
XPARLXX Power X-PLOR 2.11 Now Yen 16,000,000 Yen 8,000,000 10900
XSUPRXX Super X-PLOR 2.11 Now Yen 33,500,000 Yen16,750,000 22840
XSUPRLXX Ltd. License Super X-PLOR 2.11 Now Yen 19,500,000 Yen 9,750,000 13295
XSRCXX X-PLOR Source Code 2.11 Now Yen 12,500,000 Yen 6,250,000 8520
NOTE: X-PLOR source code may only be purchased in addition to a standard
X-PLOR object license.
UHBD ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic Ann. SU
-------------------------------------------------------------------------------------------------------------------------
UPERSXX Personal UHBD 2.2 Now Yen 10,000,000 Yen 5,000,000 6820
UPROFXX Professional UHBD 2.2 Now Yen 11,250,000 Yen 5,625,000 7670
UPARLXX Power UHBD 2.2 Now Yen 12,500,000 Yen 6,250,000 8520
GRAF BATCH ALL PLATFORMS
Part Number Description Revision Availability Commercial Academic Ann. SU
-------------------------------------------------------------------------------------------------------------------------
GRAFBXX Alliant version Now Yen10,500,000 Yen 5,250,000 8640
GRAFBXX DEC version Now Yen 8,750,000 Yen 4,375,000 7200
GRAFBXX Convex version Now Yen14,000,000 Yen 7,000,000 11520
GRAFBXX Cray version Now Yen17,500,000 Yen 8,750,000 14400
January 30, 1992 Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential
<PAGE>
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING PRODUCTS PRICE LIST
HARDWARE CONFIGURATION SUMMARY
EFFECTIVE OCTOBER 01, 1991
SILICON GRAPHICS IRIS 4D SERIES
Machine Category MFLOPS MIPS Memory Disk(1) Tape O/S Other
---------------------------------------------------------------------------------------------------------------------
Indigo Desktop xx xx 16 432/54 1/4" cartridge 4.0.0 Note 2
4D/25 G/TG Personal/Entry xx xx 16 380/54 1/4" cartridge 3.3.3 Note 2
4D/35 G/TG Personal/Entry xx xx 16 380/54 1/4" cartridge 3.3.3 Note 2
4D/310 GTX/VGX Professional/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/320 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/340 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/380 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/420 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/440 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
4D/480 GTX/VGX Power/High-End xx xx 16 780/54 1/4" cartridge 3.3.3 Note 2
IBM RISC SYSTEM/6000 SERIES
Machine Category MFLOPS MIPS Memory Disk(1) Tape O/S Other
------------------------------------------------------------------------------------------------------------------------
Series 320 Personal/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 520 Professional/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 530 Professional/Entry xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 540 Power/High-End xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
Series 550 Power/High-End xx xx 16 320/54 1/4" cartridge 3.1.5 Notes 2.3
EVANS & SUTHERLAND ESV SERIES
Machine Category MFLOPS MIPS Memory Disk(1) Tape O/S Other
------------------------------------------------------------------------------------------------------------------------
ESV-5 Entry 4.0 xx xx/xx xx xx
All others High-End 4.0 xx xx/xx xx xx
Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential January 30, 1992
<PAGE>
BATCH PROCESSORS
Machine Category MFLOPS MIPS Memory Disk(1) Tape O/S Other
---------------------------------------------------------------------------------------------------------------------
Alliant FX40,80 Power/Batch xx xx xx xx 8mm cartridge 2.1.02
Alliant FX2800 Power/Batch xx xx xx xx 8mm cartridge 2.1.02
Convex C-1 Power/Batch xx xx xx xx Reel-to-reel xx Note 4
Convex C-2 Power/Batch xx xx xx xx Reel-to-reel xx
Cray X,Y-MP Super/Batch xx xx xx xx Reel-to-reel 6.0
Cray 2 Super/Batch xx xx xx xx Reel-to-reel 6.0
DEC Batch xx xx xx xx Reel-to-reel xx Note 4
IBM 3090 MVS Super xx xx xx xx Reel-to-reel xx Note 5
IBM 3090 VM Super xx xx xx xx Reel-to-reel xx Note 5
IBM 3090 AIX Super xx xx xx xx Reel-to-reel xx Note 5
HARDWARE NOTES
1: Under the Disk column, the first number is the minimum total disk space
required while the second number is the minimum swap space required.
2: FORTRAN is required for the QUANTA Open Interface.
3: The following IBM RS/6000 hardware configuration is required for
QUANTA/CHARMm software: 24-bit 3D graphics, 24-bit Z-buffer, Ethernet LAN
adaptor, and the FORTRAN 2.01 run-time libraries (xlfrte 02.01).
4: CHARMm, X-PLOR, and UHBD are not supported on the Convex C-1.
5: GRAF Batch is not supported on the IBM 3090.
PART NUMBERS
Replace XX in all software part numbers with the following machine codes:
4D All SGI 4D sereis except Indigo DT SGI Indigo ST Stardent Titan
ES E&S ESV RS All IBM RS/6000 series
FX Alliant C1 Convex C-1 C2 Convex C-2
CX Cray X-MP CY Cray Y-MP CR Cray 2
MV IBM 3090 MVS VM IBM 3090 VM/CMS AX IBM 3090 AIX
VS DEC VMX
Polygen/Molecular Simulations Japan Price List
January 30, 1992 Proprietary and Confidential
<PAGE>
Prices are valid only when purchased with hardware Page 7 of 9
CONTINUING LICENSE/MAINTENANCE
Part Number Description Academic Price/S.U. Commercial Price/S.U.
----------------------------------------------------------------------------------------------------
SL1SS Level 1 (Standard Support) Y 35 Y220
Provides the following services:
Continuing license fee
Upgrade of existing software
Hotline support of products: Calls returned within 4 hours of receipt
SL2SS Level 2 (Scientific Support) Y105 Y265
Provides the following services:
Continuing license fee
Upgrade of existing software
Hotline support of products: Calls returned within 1 hour of receipt
Monthly status calls from senior scientific staff members
Monthly report of software problems
Scientific support for modeling problems
SCIENTIFIC PROGRAMS
Part Number Description Cost/Time Period
----------------------------------------------------------------------------------------------------
SSCON Scientific Consulting Y175,000 per day
SPMDL Molecular Design Lab Y700,000 per week
Seat in Introductory Molecular Modeling Course
Use of software on a dedicated machine
Access to Polygen and Harvard scientists
NOTE: A minimum of two weeks is required.
TRAINING PROGRAMS
Part Number Description Cost/Time Period
----------------------------------------------------------------------------------------------------
Introductory Molecular Modeling Y175,000/3 days
Advanced CHARMm Y262,500/2 days
Advanced Protein Modeling Y262,500/2 days
Advanced Polymer Modeling Y262,500/2 days
Polygen/Molecular Simulations Japan Price List
Proprietary and Confidential January 30, 1992
<PAGE>
POLYGEN/MOLECULAR SIMULATIONS
MOLECULAR MODELING SOFTWARE PRODUCTS
POLICIES AND PROCEDURES
EFFECTIVE JANUARY 01, 1992
TITLE
All right, title and interest in and to the software licensed and any related
documentation and any copies thereof which may be made by licensee are and shall
remain the exclusive property of licensor or licensor's licensor, as to software
sublicensed by licensor to licensee; licensor and its licensors are collected
referred to as the software owners. Any third party software designated in the
applicable price list as subject to a separate license agreement is subject to
the terms of the agreement accompanying such software. Each software owner shall
have the right to enforce this agreement against licensee as to such software
owner's software.
SOFTWARE LICENSE FEES
Use of the software by licensee shall be subject to the licensee signing the
Polygen/Molecular Simulations Standard Software License Agreement.
UNBUNDLED FEE
In the instance where software is not purchased with hardware, the software list
price shall be increased by an additional amount equal to twenty percent (20%)
of such software list price (the unbundled fee).
PAYMENT TERMS
Unless otherwise arranged, Polygen/Molecular Simulations will invoice purchaser
at the time of shipment of each installment on payment terms of each on
delivery, except where open account credit is established and maintained to
Polygen/Molecular Simulations' satisfaction, in which case payment terms shall
be net 30 days from date of shipment. Purchaser shall make all payments as
provided without regard to whether purchaser has made or may make any inspection
or use of any goods delivered. Any invoiced amount which is not paid when due
shall bear interest at the rate of 2% per month or the highest rate then
permitted by law, whichever is less.
WARRANTY
The software as delivered and installed on the designated system will conform
substantially to licensor's then current published program specifications.
Licensee acknowledges, however, that the software is of such complexity that
it may have inherent or latent defects and agrees that as licensee's sole remedy
licensor will exercise its best efforts to correct documented program errors
which licensors's analysis indicates are caused by a defect in the unaltered
version of the delivered software as installed on an unaltered designated
system. Licensor does not guarantee the results of any such services or
represent or warrant that any such error will be corrected. The foregoing
warranty extends only to licensee and is not applicable to any transferee of the
software license.
LICENSE TRANSFER POLICY
All computers and software are expected to be written off over four years.
Customers will be able to transfer their current software license to a faster
computer (at the same site) and receive a credit equal to 25% of the lower of
the price actually paid or the current price for the license for each year left
in the four years since shipment to the customer by Polygen/Molecular
Simulations. To receive this credit, the customer must be current on
maintenance.
<PAGE>
TERMS AND CONDITIONS
Software orders must be accompanied by the software quotation with standard
quote terms and conditions and a standard software license agreement. Loaners
must be accompanied by a standard software loaner agreement. Any software
purchase or loaner which does include the above documents or which documents
deviate from standard terms must be approved in advance.
QUOTE VALIDITY
Software quotes are valid for 30 days only.
SOFTWARE LOANER PERIOD
Unless otherwise arranged, software to commercial organizations may only be
loaned for a period of 15 days: software to academic institutions may only be
loaned for a period of 30 days.
<PAGE>
APPENDIX D
WIRE TRANSFER (BANK) INFORMATION
Bank: Shawmut Bank, NA
One Federal Street
Boston, MA 02211
Routing No.: ABA 011000206
Account No.: 20-103-394-4
29.
<PAGE>
APPENDIX E
PMSI TRADEMARKS
POLYGRAF
NMRgraf
BIOGRAF
CERIUS
X-PLOR
Polaris
MADNMR
UHBD
The Company may use the foregoing Trademarks which have not been registered in
Japan. PMSI intends to file applications for registration of these Trademarks
with the assistance of the Company.
Applications for the following Trademarks are pending before the Patent Office
of Japan, and upon the approval and registration of such Trademarks in Japan,
the Company may use such Trademarks in connection with the distribution and
advertising of the Software:
CHARMm
QUANTA
30.