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EXHIBIT 10.19
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (hereinafter "Agreement") is entered into by and
between Computational Applications and System Integration, Inc., an Illinois
corporation, with its principal place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter "CA&SI"), and Simplex Solutions, Inc., a Delaware
corporation, with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter "Simplex").
ARTICLE I - DEFINITIONS
1.1 "Effective Date" means the date the Agreement is fully signed by both the
parties.
1.2 The "Maintenance-Period" of this Agreement is as follows: The initial
Maintenance-Period shall be for one (1) year starting from the Effective Date of
this Agreement. The Maintenance Period shall automatically extend by one (1)
year unless one of the parties chooses to not extend the Maintenance Period by
giving a written notice to the other party no less than ninety (90) days before
the end of the initial Maintenance Period. In any event, the Maintenance-Period
shall end no later than two (2) years after the Effective Date of this
Agreement.
1.3 "SOLVER" means CA&SI's software product known as vsdlss [*], which
includes, without limitation, the multiple load case feature, and all other
versions of CA&SI's software product vsdlss that are delivered by CA&SI to
Simplex during the Maintenance-Period. SOLVER is a sparse direct solver for
solving very sparse systems of simultaneous linear equations [*], but shall not
include RSOLVE or any other product or property of CA&SI. The current version of
SOLVER is vsdlss [*].
1.4 "Upgrade" means any subsequent released version of SOLVER.
1.5 "API" means the Applications Program Interface to SOLVER, as further
described in the Documentation.
1.6 "Bug" means any condition which (a) causes a hard error such as a bus error
or segmentation fault, and thereby causes SOLVER to crash or fail, or (b) causes
SOLVER to halt with an error condition other than a proper error indicating
Insufficient Memory of Insufficient Disk Space or Incorrect File Permissions or
Input Data Inconsistent, or (c) causes SOLVER to product a result that is not
within reasonable engineering tolerances of the solution to a properly inputted
system of very sparse simultaneous linear equations [*], provided in any case
that CA&SI can reproduce such phenomenon on its in-house platform(s) with
information supplied by Simplex.
1.7 "Documentation" means CA&SI's formal description of the API and of the
functionality, capabilities and limitations of SOLVER, as provided by CA&SI.
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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1.8 "Field of Use" means the field of integrated circuit electronic design
automation, which includes without limitation the use of resulting designs to
manufacture integrated circuit products.
1.9 "Source Code" means a collection of statements comprising a software
program, whether in written form or in magnetic or other machine-readable form,
and being intelligible in human-readable form, of SOLVER.
1.10 "Object Code" means machine readable machine language code of SOLVER
executable on a computer system, other than Source Code, including without
limitation linkable binary code as well as directly executable files.
1.11 "Term" means the time period beginning on the Effective Date of this
Agreement and ending upon termination of this Agreement in accordance with the
provisions herein.
ARTICLE II - SOFTWARE LICENSE
In consideration of the license fees to be paid by Simplex and its other
obligations under this Agreement, CA&SI hereby grants a non-exclusive license to
the Source Code of SOLVER to Simplex subject to the terms and restrictions given
below and in the rest of this Agreement:
2.1 Subject to the other provisions in this Agreement, CA&SI grants to Simplex
a perpetual, irrevocable, worldwide, right and license to modify, copy, and use
the Source Code and functionality thereof [*], all of which rights may be
exercised solely in connection with or as incorporated into a Simplex software
product. It is understood that, subject to any restrictions set forth in this
Agreement, the foregoing right and license extends both to the non-functional
copyrightable expression in the Source Code as well as the algorithms,
functionality and techniques in the Source Code.
2.2 Subject to the other provisions in this Agreement, CA&SI grants to Simplex
the perpetual, irrevocable, worldwide, right to incorporate the Source Code or
portions thereof into Simplex's internal software configuration management
system.
2.3 CA&SI grants to Simplex the perpetual, irrevocable, worldwide right and
license to distribute, market, import, export, copy, offer for sublicensing and
sublicense SOLVER or [*], however only in Object Code form and only when
incorporated into a Simplex software product and solely for use in the Field of
Use. [*] SOLVER [*]
2.4 The geographic scope of this license is worldwide.
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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2.5 Simplex will not use or incorporate SOLVER in a way that would allow the
user of any Simplex software product to [*] SOLVER [*] allow such user access to
the API.
Notwithstanding the foregoing, the following restrictions shall apply:
2.6 Simplex shall not provide, disclose or sublicense the Source Code [*] Source
Code in source code form to any third party except to the extent expressly
permitted in Section 2.6, 2.7, 10.1, 10.2 or 12.1 hereof. Simplex may place the
Source Code, [*] in escrow, subject to the following conditions and limitations,
which shall be set forth in the documentation establishing such escrow, which
documentation shall be delivered promptly to CA&SI upon request:
(a) The Source Code shall be escrowed only as an integral part of, and
together with, source code for a licensed Simplex product, solely for the
benefit of a licensee of such Simplex product;
(b) Such escrow shall be administered by a reputable third party software
escrow agent;
(c) The terms of such escrow shall strictly limit the use of the Source
Code by any releasee thereof to supporting and maintaining the licensed
Simplex product which includes SOLVER or the respective modification or
derivative thereof;
(d) Prior to deposit of the Source Code in escrow, each potential releasee
of the Source Code shall agree in writing, for the benefit of CA&SI, that
such releasee (i) shall not provide the Source Code [*] to any third party
and (ii) shall be subject to and bound by all of the conditions,
restrictions and limitations on the use of such Source Code and proprietary
information set forth in this Agreement in the same manner as applies to
Simplex. The Object Code corresponding to any such Source Code [*] shall be
subject to the same terms and conditions as apply to Simplex's object code
for the licensed Simplex product, and shall be subject to and bound by all
of the conditions, restrictions and limitations on the use of such Object
Code and proprietary information set forth in this Agreement in the same
manner as applies to Simplex;
(e) The Source Code will be released only as an integral part of, and
contemporaneous with, any release of source code for the Simplex product
incorporating the Source Code; and
(f) Triggering events for release of the escrow will be limited to the
following events, except as agreed to in writing by CA&SI: (i) Simplex
fails to conduct business
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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in the ordinary course and fails to support and maintain its products for
a period of thirty (30) days or more after demand therefor by its
licensee, (ii) the bankruptcy, liquidation or dissolution of Simplex,
Simplex making an assignment for the benefit of creditors, or upon the
appointment of a receiver or trustee of Simplex pursuant to any state or
federal bankruptcy law or similar law relating to creditor's rights
generally.
2.7 Access to the Source Code will be provided only to Simplex personnel, at
the facilities of Simplex or other secure facilities where Simplex permits
access to source code for its own products, including without limitation
off-size storage and backups, who (a) have a need for such access in order to
utilize the Source Code consistent with this Agreement, and (b) have been
apprised of the terms of this Agreement regarding restrictions on use and
disclosure of the Source Code.
2.8 CA&SI retains sole title and all intellectual property rights to SOLVER,
its Source Code and Object Code, and all algorithms, data structures and
implementation techniques in the Source Code. [*] the Source Code [*] Simplex
shall have the right to copyright, patent or otherwise protect as proprietary
[*] from SOLVER [*] such copyright, patent or other intellectual property right
[*] SOLVER [*].
2.9 Periodically (at least once every four months) solely during the
Maintenance Period Simplex shall run SOLVER benchmarks on representative
problems and on representative platforms and provide the (jobname).PCS
statistics files back to CA&SI. CA&SI shall have the right to use these files
and the data contained therein for any purpose suitable for its business.
2.10 Nothing herein shall constitute or be deemed a grant of rights or
limitation on, nor shall this Agreement relate to, any other software, product,
source code, or object code currently licensed or sublicensed from CA&SI by
Simplex, including specifically, but without limitation of the generality of
the foregoing, any prior arrangement concerning RSOLVE or any other property
described in that certain Software License Agreement between the parties dated
May 1, 1997.
ARTICLE III - WARRANTY AND LIMITATIONS ON LIABILITY
3.1 Simplex acknowledges SOLVER is provided AS IS and without warranties of
any kind, except as set out in paragraph 4.1. Specifically, Simplex
acknowledges that SOLVER IS PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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PURPOSE. CA&SI has no obligations with regard to any error or defect claimed
with regard to SOLVER except as provided for in paragraph 7.3.
3.2 Simplex shall assure that, with respect to each customer with whom Simplex
enters an agreement by which Simplex sublicenses SOLVER, CA&SI shall be included
(either by name or as a Licensor of Simplex) under such agreement to all
limitations from liability for errors or otherwise with respect to its SOLVER as
is provided to Simplex with respect to its software. In no event shall either
party be liable for any indirect, special, incidental or consequential damages
of any nature, including lost profits, whether or not such party shall have been
advised of the possibility of the same, except to the extent arising out of
disclosure of the Source Code by Simplex in material breach of this Agreement
which results in loss of CA&SI's trade secrets or proprietary rights to the
Source Code and is not, or cannot be, cured within a reasonable period of time.
CA&SI shall have no liability to any third party to which Simplex licenses any
software product that may contain SOLVER or any version thereof. Simplex shall
indemnify, save and hold harmless CA&SI from and against any and all loss, cost,
or claim arising from or in connection with, any use or sublicensure of SOLVER
by Simplex or its permitted assignees, licensees or end-users, except to the
extent arising out of or related to breach of any express warranty of CA&SI
under ARTICLE IV or CA&SI's knowing or willful misconduct. Simplex's obligations
under this paragraph 3.2 are subject to the following conditions: (i) CA&SI
shall permit Simplex to control the litigation and settlement; (ii) CA&SI agrees
to notify Simplex upon knowledge of any claim, suit, action, or proceeding for
which it may entitled for indemnification under this agreement; (iii) CA&SI
agrees to provide reasonable assistance to Simplex at Simplex's expense, in
defense of the same; and (iv) CA&SI will not enter into any settlement agreement
or otherwise settle any such claim without Simplex's prior consent or request.
3.3 In no event shall CA&SI have any liability with respect to any error or
malfunction which results directly or indirectly from: a) any change of any
nature made by Simplex or any third party; b) failure by Simplex to follow any
of CA&SI's written instructions with regard to the use of SOLVER; or c) the
attachment, integration or incorporation of any other software program in or
with SOLVER or the incorporation of SOLVER in or with any other software
program. Neither party shall have any liability resulting directly or indirectly
from any cause beyond such party's reasonable control, including without
limitation, any weather or power related problems, any acts or omissions by a
communications carrier or any other event of force majeure.
ARTICLE IV -- INTELLECTUAL PROPERTY INDEMNITY
4.1 CA&SI represents and warrants that it owns SOLVER and has full authority to
grant the rights stated herein to Simplex without the consent or authority of
any third party, and that SOLVER and the license granted hereby do not infringe
any copyright, trade secret, patent, contract or other right of any third party.
CA&SI will defend or settle any suit brought by a third party against Simplex
alleging SOLVER violates any such right. CA&SI shall not enter
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into any settlement without the written consent of Simplex, which consent shall
not be unreasonably withheld or delayed. CA&SI's indemnification obligation
under this ARTICLE IV shall not apply to any settlement entered into by Simplex
without the written consent of CA&SI, which consent shall not be unreasonably
withheld or delayed. At its option CA&SI may provide Simplex with a version of
SOLVER which, to the extent technically practicable, contains equivalent
functionality and performance and does not infringe or result in such a
violation. CA&SI shall indemnify and hold Simplex harmless for all loss, cost,
reasonable expense (including attorney's fees), damage or judgment related to or
arising out of such a claim.
ARTICLE V - LICENSE FEES
5.1 Simplex will pay CA&SI a license fee of [*] within [*] of the Effective
Date of this Agreement. Upon payment of such fee and the maintenance fee for the
first year as specified in paragraph 7.2, the rights and licenses granted to
Simplex under ARTICLE II shall be [*].
ARTICLE VI - PUBLICITY
6.1 Simplex agrees that the CA&SI copyright notice and disclaimer provided as
part of the Source Code will be printed to and displayed in the program output
whenever SOLVER is invoked. Such copyright notice and disclaimer may be
reasonably modified or amended from time to time by CA&SI as necessary to update
factual and disclaimer information and maintain the legal correctness of such
copyright notice and disclaimer. Simplex also agrees to give due attribution to
CA&SI as the provider of SOLVER in any online or printed documentation of any
product that incorporates or uses SOLVER or any portion thereof. CA&SI grants to
Simplex a non-exclusive, royalty free, worldwide right and license to use CA&SI
trademarks in connection with the marketing, promotion, sublicensing and
distribution of Simplex products that include SOLVER or any portions thereof.
Simplex agrees to use the symbol "TM" with presentations of CA&SI trademarks
including CA&SI and [*].
ARTICLE VII - TECHNICAL SUPPORT AND MAINTENANCE
7.1 Any technical support or maintenance for SOLVER provided by CA&SI will be
provided directly to Simplex and not to Simplex customers.
7.2 Simplex will pay CA&SI an initial maintenance fee of [*] within [*] of the
Effective Date of this agreement. If the Maintenance-Period is extended for a
year as per paragraph 1.2 then Simplex will pay CA&SI an additional maintenance
extension fee of [*] within [*] of the anniversary of the Effective Date of this
Agreement.
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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7.3 Subject to all of the terms, conditions and limitations set forth herein,
and in consideration of the maintenance fees paid to CA&SI hereunder, CA&SI
will provide Upgrades and Bug fixes for SOLVER to Simplex during the
Maintenance-Period. The procedure for fixing bugs will be as follows: Simplex
will provide sufficient information to CA&SI to reproduce a Bug on an in-house
platform, and it is expected that the Bug will probably be fixed by the next
release of SOLVER. No Upgrades or Bug fixes will be provided after the
Maintenance-Period.
7.4 CA&SI is not obligated to provide any Upgrades or Bug Fixes to Simplex
unless CA&SI receives timely payment of maintenance fees as per paragraph 7.2
or accepts late payment.
7.5 Any and all Upgrades delivered or otherwise made available to Simplex
pursuant to this Agreement shall be conditioned upon and subject to all of the
terms, restrictions, conditions and limitations applicable to SOLVER, as set
forth in the remainder of this Agreement.
7.6 CA&SI's support obligations hereunder are strictly limited to Upgrades and
Bug fixes for SOLVER. During the Maintenance-Period CA&SI will provide other
technical services to Simplex on a consulting basis subject to the following
terms and conditions: (i) CA&SI must have personnel available for such services,
in the sole determination of CA&SI; (ii) Simplex shall pay CA&SI an additional
consulting fee of [*] per day or any portion thereof and such fee shall not
include any travel expenses; and (iii) Simplex shall separately reimburse CA&SI
for all reasonable travel-expenses incurred.
7.7 Termination of this Agreement in accordance with the provisions of this
agreement will automatically terminate all of CA&SI's maintenance and support
obligations hereunder.
ARTICLE VIII - TERMINATION
8.1 In addition to any other remedies available, each party shall have the
right to terminate this Agreement as a result of a material breach by the other
party of any of the provisions of this Agreement, which breach remains uncured
more than thirty (30) days after written notice which specifically sets forth
the nature and circumstances of the breach and references the applicable
provisions of this agreement. Each party shall also be entitled to equitable
remedies as required to enforce its rights under this Agreement. In addition,
Simplex shall have the right to terminate this Agreement for its convenience
upon ninety (90) days advance written notice to CA&SI.
8.2 In the event of termination of this Agreement, Simplex may retain a copy of
the Source Code [*]. Documentation and other information it has received from
CA&SI which may be used solely for the purpose of providing continuing support
for sublicenses of SOLVER [*] granted prior to the termination date. Simplex
shall not make or keep any other copy of the Source Code [*] and any related
information, and agrees not to disclose or use the same for any other purpose,
directly or indirectly. Simplex reserves the
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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right to segregate and use without restriction independent source code meeting
the requirements of paragraph 11.1. The parties agree such termination will not
affect any sublicense of the SOLVER [*] that Simplex has granted prior to the
termination date, but Simplex will have no right to grant or renew any further
sublicenses. Notwithstanding anything to the contrary in this Agreement,
termination of this Agreement will terminate all rights and licenses granted to
Simplex under this Agreement except those specified in paragraph 8.2, 14.8 and
the right to place Source Code under escrow granted in paragraph 2.6 for the
benefit of existing sublicensees prior to termination.
8.3 If this Agreement is terminated in accordance with the provisions of this
Agreement after the Acceptance Period in paragraph 9.1 then CA&SI shall have
the right to receive and retain all license fees which have become due and
payable under ARTICLE V and all maintenance fees which have become due and
payable under paragraph 7.2 prior to termination.
ARTICLE IX - FORM AND DELIVERY
9.1 The Source Code will be provided as C language source code. A snap shot of
the Source Code will be delivered by CA&SI to Simplex together with the
Documentation within one (1) week of the Effective Date of this Agreement. This
snap shot will contain the multiple load case feature. There will be an
"Acceptance Period" of three (3) weeks starting from the date the Source Code
is delivered to Simplex. During the Acceptance Period Simplex has the option of
not accepting the Source Code and terminating this Agreement by giving a
written notice to CA&SI. If Simplex terminates this Agreement during the
Acceptance Period in this manner then Simplex will be entitled to a full refund
of any of the license fees paid to CA&SI under ARTICLE V and any of the
maintenance fees paid to CA&SI under paragraph 7.2. If no notice of termination
is received by CA&SI during the Acceptance Period then the Source Code will be
deemed to have been accepted by Simplex. If Simplex terminates this Agreement
before the end of the Acceptance Period then Simplex will destroy all copies of
the Source Code. Documentation and other information provided by CA&SI and
Simplex will have no right to grant any sublicenses of SOLVER.
ARTICLE X - CONFIDENTIALITY AND ▇▇▇-▇▇▇▇▇▇▇▇▇▇
▇▇.▇ ▇▇▇▇▇▇▇ agrees that the Source Code and the Documentation for SOLVER are
and will be treated by Simplex as confidential and trade secret property owned
by CA&SI, and title and all rights of ownership shall remain with CA&SI. Any
information Simplex may obtain, directly or indirectly, with regard to the
Source Code or Documentation or any other information, that is clearly marked
as confidential or proprietary information of CA&SI, shall be kept confidential
by Simplex and shall not be disclosed, directly or indirectly, to any third
party. Simplex agrees to immediately report to CA&SI any unauthorized use or
disclosure of
*Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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CA&SI confidential or proprietary information, whether or not such use or
disclosure is the fault of Simplex.
10.2 Notwithstanding anything to the contrary in this Agreement, information in
the following categories shall not be deemed proprietary to CA&SI and the
confidentiality restrictions in this Agreement shall not apply to: (i)
information that is otherwise proprietary information hereunder that is in or
comes into the public domain through no direct or indirect act or omission of
Simplex; (ii) information that is independently developed by or for Simplex, or
is developed and provided to Simplex by one or more third parties, without use
of proprietary information disclosed to Simplex and without any breach of this
Agreement; (iii) information which is in the possession of Simplex at the time
of disclosure by CA&SI, or (iv) information that is specifically approved by
CA&SI for release to third parties not bound by written confidentiality
provisions by written authorization by CA&SI. Notwithstanding anything to the
contrary in this Agreement, Simplex may disclose confidential or proprietary
information of CA&SI to the extent required by law or by order of any court or
governmental agency, provided that, to the extent it may legally do so, Simplex
gives reasonable advance notice to CA&SI and uses its reasonable efforts to
secure confidential treatment of such information prior to its disclosure
(whether through protective orders or otherwise).
ARTICLE XI - SIMILAR PRODUCTS
11.1 Nothing in this Agreement shall limit Simplex's right to (i) use
information which is generally available to third parties without violation of
any proprietary or intellectual property rights of CA&SI and without any breach
of this Agreement; or (ii) develop, acquire, or market other software or
products having functionality similar to that of SOLVER, provided Simplex can
show that such software has been developed independently without use or aid,
directly or indirectly, of the SOLVER Source Code, Documentation, algorithms
and data structures in the Source Code, or any other confidential or
proprietary information of CA&SI obtained by Simplex.
ARTICLE XII - ASSIGNMENT
12.1 This Agreement shall be binding upon and enure to the benefit of the
parties hereto, their successors and any permitted assigns. Simplex shall not
have the right to assign or otherwise transfer any of its rights or obligations
under this Agreement. Notwithstanding the foregoing, a merger or acquisition of
substantially all of the business to which this Agreement relates (whether by
sale of stock, sale of assets or otherwise) of either of the parties shall not
violate this prohibition against assignment, provided the merger or acquisition
agreement and appropriate state law provide that the acquiror or the successor
by merger, as appropriate, shall be fully liable for performance of all of the
terms and provisions of this Agreement and the original party shall not be
released from such performance to the extent the original party survives as a
separate legal entity. In the event of a transfer of Simplex's licenses in
connection with such a merger or acquisition, it is understood that the
licenses granted by
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CA&SI to Simplex under this Agreement will be transferred to the respective
acquiror or successor and will not be retained by Simplex. It is understood
that at any given time there will be only one licensee who will hold the rights
and licenses granted by CA&SI under this Agreement and that licensee will be
subject to all the obligations and restrictions under this Agreement.
ARTICLE XIII - EXPORT RESTRICTIONS
13.1 Simplex acknowledges having reviewed and understanding the provisions of
the Export Administration Regulations as currently in effect in the United
States and agrees it will not export or re-export, directly or indirectly, any
software product that uses or incorporates any version of SOLVER to any country
to which such export, or re-export, is prohibited under the Regulations.
Simplex further agrees that it will obtain any and all export licenses
necessary to allow the export or re-export of any software products using or
incorporating the SOLVER in the event the destination country to which such
export is to be made requires any such license, Simplex agrees to indemnify and
hold CA&SI harmless from and against any and all losses or costs incurred as a
result of Simplex's failure to comply with the provisions of this article.
ARTICLE XIV - MISCELLANEOUS
14.1 This Agreement constitutes the entire understanding between the parties
and supersedes any discussions, negotiations, understandings or prior
agreements (if any) with respect to the subject matter hereof. There are no
representations, promises, warranties or understandings relied upon by the
parties which are not contained herein. This Agreement may be modified only by
a writing signed by both parties.
14.2 The failure by either party to insist upon strict enforcement of any terms
and conditions of this Agreement shall not constitute a waiver of such right
with regard to the same or any subsequent breach at a later date. If any
provision of this Agreement is held to be unenforceable, by a court of
competent jurisdiction or arbitrator pursuant to Section 14.6, such decision
shall not affect the validity or enforceability of the remaining provisions,
which shall be modified only to the extent required to modify or strike the
unenforceable provisions.
14.3 In the event of a default by either party under the terms of this
Agreement, the nondefaulting party shall be entitled to recover all costs,
including reasonable attorneys' fees, incurred in enforcing its rights under
this Agreement.
14.4 Any notice required or permitted hereunder shall be personally delivered
or mailed by certified mail, return receipt requested, and shall be effective
upon the earlier of receipt or three (3) days after being so mailed. The
addresses of the parties for notice are the addresses
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set forth on page one, unless either party gives written notice of a new address
for this purpose.
14.5 The captions used in this Agreement are for convenience only and shall not
control or affect the meaning or construction of the provisions of this
Agreement.
14.6 Any controversy or claim arising out of this Agreement or its breach, shall
be settled by binding arbitration in Champaign, Illinois. A single arbitrator
shall be chosen by mutual agreement of the parties within fifteen (15) days
after the date on which the parties determine in good faith that they will be
unable to agree as to the settlement of the controversy or claim. In the event
the parties cannot mutually agree upon an arbitrator, each party shall select an
arbitrator and the two arbitrators so selected shall select a third arbitrator.
The decision of the arbitrator, or a majority of the panel of three arbitrators,
as appropriate, shall be made within thirty (30) days of the selection of the
arbitrator(s), and shall be final and binding upon the parties. Judgment on the
arbitration decision may be entered in the appropriate court as provided in this
Agreement. The arbitration shall be governed by and conducted in accordance with
the rules of the American Arbitration Association for commercial arbitration.
The cost of arbitration shall be borne equally by the parties, unless the
arbitration decision shall apportion the costs otherwise.
14.7 None of the provisions of this Agreement shall be for the benefit of or
enforceable by any third party, including specifically, but without limitation
of the generality of the foregoing, any sub-licensee of Simplex.
14.8 Notwithstanding any provision herein to the contrary, the duties,
undertakings, indemnities and other obligations of Simplex set forth in Sections
2.3, 2.5, 2.6, 2.7, and the duties, rights, undertakings, indemnities and other
obligations of both parties set forth in 2.8, 2.9 (last sentence only), 3.2,
3.3, 4.1, 6.1, 8.2, 9.1, 10.1, 10.2, 11.1, 12.1, 13.1, and ARTICLE XIV hereof,
shall survive the execution, delivery, performance and termination of this
Agreement in perpetuity.
14.9 This Agreement shall be governed by and construed in accordance with the
laws of the State of Illinois, without regard to its choice of law provisions.
The parties agree any litigation involving this Agreement shall be brought in
either state or federal court located in Champaign County, Illinois, unless
CA&SI shall otherwise agree in writing in advance.
14.10 Simplex shall be responsible for all taxes of any nature arising as a
result of distribution of any products that use or incorporate any version of
SOLVER, with the exception of taxes on CA&SI based upon CA&SI's taxable income
from payments hereunder.
14.11 Any and all restrictions on the licensure, sub-licensure, disclosure,
modification, distribution, marketing, and other use of SOLVER, the Source Code,
the Object Code, and the Documentation by Simplex shall, except as provided in a
writing signed by a duly authorized
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representative of CA&SI with specific reference to this provision, apply to any
upgrade or subsequent version of SOLVER which may be licensed or delivered to
Simplex under this agreement.
IN WITNESS WHEREOF, this Agreement has become effective on the date of the
latest signature of the parties as set forth below.
Computational Applications and Simplex Solutions, Inc., a
Systems Integration, Inc., an Illinois Delaware Corporation
corporation
By: P.M. VAIDYA By: [SIGNATURE ILLEGIBLE]
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Title: President Title: President & CEO
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: [SIGNATURE ILLEGIBLE]
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Date: July 14, 1998 Date: July 15, 1998
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