{"id":42297,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/exclusive-patent-and-non-exclusive-copyright-license-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"exclusive-patent-and-non-exclusive-copyright-license-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/exclusive-patent-and-non-exclusive-copyright-license-agreement.html","title":{"rendered":"Exclusive Patent and Non-Exclusive Copyright License Agreement &#8211; Massachusetts Institute of Technology and Akamai Technologies Inc."},"content":{"rendered":"<pre>\n                      MASSACHUSETTS INSTITUTE OF TECHNOLOGY\n\n                                       AND\n\n                            AKAMAI TECHNOLOGIES, INC.\n\n             EXCLUSIVE PATENT AND NON - EXCLUSIVE COPYRIGHT LICENSE\n                                    AGREEMENT\n\n                   THIS OFFER WILL EXPIRE ON NOVEMBER 30, 1998\n\n                                TABLE OF CONTENTS\n\n\n\n                                                                           \nRECITALS ......................................................................1\n\n1.  Definitions................................................................2\n\n2.  Grant of Rights............................................................4\n\n3.  Company Diligence Obligations..............................................6\n\n4.  Delivery of Materials......................................................8\n\n5.  Royalties and Payment Terms................................................9\n\n6.  Reports and Record Keeping................................................11\n\n7.  Patent Prosecution........................................................13\n\n8.  Infringement..............................................................14\n\n9.  Copyright.................................................................16\n\n10.  Indemnification and Insurance............................................16\n\n11.  No Representations or Warranties.........................................17\n\n12.  Assignment...............................................................18\n\n13.  General Compliance with Laws.............................................18\n\n14.  Termination..............................................................19\n\n15.  Dispute Resolution.......................................................20\n\n16.  Miscellaneous............................................................22\n\nAPPENDIX A....................................................................25\n\nAPPENDIX B....................................................................26\n\nAPPENDIX C....................................................................27\n\nAPPENDIX D....................................................................28\n\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n                      MASSACHUSETTS INSTITUTE OF TECHNOLOGY\n         EXCLUSIVE PATENT AND NON-EXCLUSIVE COPYRIGHT LICENSE AGREEMENT\n\n\n         This Agreement, effective as of the date set forth above the signatures\nof the parties below (the 'EFFECTIVE DATE'), is between the Massachusetts\nInstitute of Technology ('M.I.T.'), a Massachusetts corporation, with a\nprincipal place of business at 77 Massachusetts Avenue, Cambridge, MA 02139-4307\nand Akamai Technologies, Inc. ('COMPANY'), a Delaware corporation, with a\nprincipal place of business at __________.\n\n                                    RECITALS\n\n         WHEREAS, M.I.T. is the owner of certain PATENT RIGHTS and an owner of\ncertain COPYRIGHTS (as later defined herein) relating to M.I.T. Case No. [**],\n[**], et al.; M.I.T. Case [**], et al.; and M.I.T. Case No. [**], et al and has\nthe right to grant licenses under said PATENT RIGHTS and COPYRIGHTS, subject\nonly to a royalty-free, nonexclusive non-transferable license to practice the\nPATENT RIGHTS and COPYRIGHTS granted to the United States Government for\ngovernment purposes;\n\n         WHEREAS, the Conflict Avoidance Statement of [**] inventor\/equity \nparticipants in COMPANY is Appendix C hereto; the [**] inventor\/equity\nparticipants in COMPANY is Appendix D;\n\n         WHEREAS, M.I.T.'s Vice President for Research has approved that [**]\nthe inventors of the PATENT RIGHTS and [**] of the authors of the COPYRIGHTS,\nnow hold or shall shortly acquire an equity position in COMPANY and that M.I.T.\nis accepting equity as partial consideration for the rights and licenses granted\nunder this Agreement;\n\n         WHEREAS, M.I.T. desires to have the PATENT RIGHTS and COPYRIGHTS\ndeveloped and commercialized to benefit the public and is willing to grant a\nlicense thereunder;\n\n         WHEREAS, COMPANY has represented to M.I.T., to induce M.I.T. to enter\ninto this Agreement, that COMPANY shall commit itself to a thorough, vigorous\nand diligent program of exploiting the PATENT RIGHTS and COPYRIGHTS so that\npublic utilization shall result therefrom; and\n\n         WHEREAS, at least one of the 'authors' has assigned his full and\nundivided interest in the COPYRIGHT to M.I.T.; and\n\n         WHEREAS, COMPANY desires to obtain a license under the PATENT RIGHTS\nand COPYRIGHTS upon the terms and conditions hereinafter set forth.\n\n         NOW, THEREFORE, M.I.T. and COMPANY hereby agree as follows:\n\n                                 1. DEFINITIONS.\n\n         1.1 'AFFILIATE' shall mean any legal entity (such as a corporation,\npartnership, or limited liability company) that controls, or is controlled by,\nCOMPANY. For the purposes of this definition, the term 'control' means (i)\nbeneficial ownership of at least fifty percent (50%) of the voting securities of\na corporation or other business organization with voting securities or (ii) a\nfifty percent (50%) or greater interest in the net assets or profits of a\npartnership or other business organization without voting securities.\n\n         1.2 'COPYRIGHTS' shall mean M.I.T.'s copyrights in the PROGRAM.\n\n         1.3 'COPYRIGHT TERM' shall mean the period of time commencing on the\nEFFECTIVE DATE and ending with the expiration of the term for which the\nCOPYRIGHT is granted, unless earlier terminated in accordance with the\nprovisions of this Agreement.\n\n         1.4 'DERIVATIVE(S)' shall mean COMPANY-created computer software which\nshall include, in whole or in part, the PROGRAM, including, but not limited to,\ntranslations of the PROGRAM to other foreign or computer languages, adaptations\nof the PROGRAM to other hardware platforms, abridgments, condensations,\nrevisions, and software incorporating all or any part of the PROGRAM. COMPANY\nshall be entitled to establish all proprietary rights for itself in the\nintellectual property represented by DERIVATIVES, whether in the nature of trade\nsecrets, copyrights, patents or other rights, subject to COPYRIGHT and PATENT\nRIGHTS. Any copyright registration by COMPANY for DERIVATIVES shall give full\nattribution to M.I.T.'s COPYRIGHT.\n\n         1.5 'END-USER' shall mean a customer authorized to execute the PROGRAM\nor its DERIVATIVE for internal purposes only and not for further distribution or\nresale, and shall include customers granted site-wide rights to use and not for\nresale.\n\n                                      - 2 -\n\n         1.6 'EXCLUSIVE PERIOD' shall mean the period of time set forth in\nSection 2.2.\n\n         1.7 'FIELD' shall mean all product, process and service categories.\n\n         1.8 'LICENSED PRODUCT' shall mean\n\n                  (a)      any product that cannot be\n\n                           (1) manufactured, used, leased, sold or imported, in\nwhole or in part, without infringing on one or more claims under the PATENT\nRIGHTS or\n\n                           (2) executed, reproduced, or modified, in whole or in\npart, without infringing the COPYRIGHT and\n\n                  (b)      DERIVATIVES.\n\n         1.9 'LICENSED PROCESS' shall mean any process or service that cannot be\nperformed, in whole or in part, without using at least one process that\ninfringes one or more claims under the PATENT RIGHTS.\n\n         1.10     'PATENT RIGHTS' shall mean:\n\n                  (a) United States and international patent applications listed\non Appendix A and the resulting patents;\n\n                  (b) any patent applications filed by M.I.T. claiming the\nsubject matter of the M.I.T. Cases listed in Appendix A;\n\n                  (c) any divisionals, continuations, continuation-in-part\napplications, and continued prosecution applications (and their relevant\ninternational equivalents) of the patent applications described in (a) and (b)\nabove to the extent the claims are directed to subject matter specifically\ndescribed in such patent applications, and the resulting patents;\n\n                  (d) any patents resulting from reissues, reexaminations, or\nextensions (and their relevant international equivalents) of the patents\ndescribed in (a), (b), and (c); and\n\n                  (e) international (non-United States) patent applications\nfiled after the EFFECTIVE DATE and the relevant international equivalents to\ndivisionals, continuations, continuation-in-part applications and continued\nprosecution applications of such patent applications and any patents resulting\nfrom reissues, reexaminations, or extensions of the patents\n\n                                     - 3 -\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\ndescribed in (d) to the extent the claims are directed to subject matter\nspecifically described in the patents or patent applications referred to in (a),\n(b), (c) and (d), above, and the resulting patents.\n\n         1.11 'PROGRAM' shall mean the computer software including object code\nand source code that is part of M.I.T. Case No. [**] et al and related \ndocumentation, if any, existing as of the EFFECTIVE DATE and any M.I.T. owned\nderivative works or improvements to the PROGRAM created within one year of the\nEFFECTIVE DATE.\n\n         1.12 'REPORTING PERIOD' shall begin on the first day of each calendar\nyear and end on the last day of such calendar year.\n\n         1.13 'SUBLICENSEE' shall mean any non-AFFILIATE sublicensee of the\nrights granted COMPANY under Sections 2.1 and 2.3, excluding END-USERS.\n\n         1.14 'PATENT TERM' shall mean the period of time commencing on the\nEFFECTIVE DATE and ending with the expiration or abandonment of all issued\npatents and filed patent applications within the PATENT RIGHTS, unless earlier\nterminated in accordance with the provisions of this Agreement.\n\n         1.15     'TERRITORY' shall mean worldwide.\n\n                               2. GRANT OF RIGHTS.\n\n         2.1 PATENT RIGHTS License Grant. Subject to Section 2.8 and the terms\nof this Agreement, M.I.T. hereby grants to COMPANY a license for the PATENT TERM\nunder the PATENT RIGHTS to develop, make, have made, use, sell, offer to sell,\nlease, distribute, and import LICENSED PRODUCTS and to practice LICENSED\nPROCESSES in the TERRITORY and FIELD.\n\n         2.2 Exclusivity. In order to establish an EXCLUSIVE PERIOD as to PATENT\nRIGHTS for COMPANY, M.I.T. agrees that it shall not grant any other license to\nthe rights granted in Section 2.1 during the period of time commencing on the\nEFFECTIVE DATE and extending to the end of the PATENT TERM, unless sooner\nterminated as provided in this Agreement.\n\n                                     - 4 -\n\n         2.3 COPYRIGHT License Grant. Subject to Sections 2.4, 2.5, and 2.8 and\nthe terms of this Agreement, M.I.T. also hereby grants to COMPANY the following\nnon-exclusive rights and licenses to M.I.T. COPYRIGHTS in the TERRITORY and\nFIELD for the COPYRIGHT TERM, unless this Agreement shall be sooner terminated\nas provided herein:\n\n                  (a)      to execute, reproduce and modify the PROGRAM;\n                  (b)      to create DERIVATIVES; and\n                  (c)      to distribute the PROGRAM and DERIVATIVES.\n\n         2.4 Rights of Sponsors to Copyright. The rights granted in Section 2.3,\nas they may apply to derivative works or improvements created by M.I.T. after\nthe EFFECTIVE DATE, shall be subject to the rights of any research sponsors of\nthe work leading to such derivatives or improvements.\n\n         2.5 Exclusivity as to M.I.T.'s Copyright Rights. M.I.T. agrees that it\nshall not grant any other licenses to the rights granted in Section 2.3, except\nas provided in Section 2.4, and will not retain any rights except those set out\nin Section 2.8.\n\n         2.6 Sublicenses. COMPANY shall have the right to grant sublicenses of\nits rights under Sections 2.1 and 2.3 to SUBLICENSEES and END-USERS. COMPANY\nshall incorporate terms and conditions into its sublicense agreements sufficient\nto enable COMPANY to comply with this Agreement. COMPANY shall promptly furnish\nM.I.T. with a fully signed photocopy of any sublicense agreement used to\nsublicense rights to SUBLICENSEE and one copy of the form of the END-USER\nAgreement. Upon termination of this Agreement for COMPANY'S failure to fulfill\nits obligations under one or all of Sections 3.1 (a), (b), (c), (d), (e), and\n(f), any SUBLICENSEES not then in default shall have the right to seek a license\nfrom M.I.T. M.I.T. agrees to negotiate such licenses in good faith under\nreasonable terms and conditions. Termination of this Agreement for any other\nreason shall not have any affect on licenses granted by COMPANY to SUBLICENSEES,\nprovided that such licenses comply with the terms and conditions of this\nAgreement set forth in Sections 9, 10, 11 and 13.\n\n         2.7      U.S. Manufacturing.  COMPANY agrees that any LICENSED\nPRODUCTS used or sold in the United States will be manufactured substantially in\nthe United States.\n\n                                     - 5 -\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n         2.8      Retained Rights.\n\n                  (a) M.I.T. M.I.T. retains the right to practice under the\nPATENT RIGHTS and COPYRIGHTS for non-commercial research, teaching, and\neducational purposes.\n\n                  (b) Federal Government. COMPANY acknowledges that the U.S.\nfederal government retains a royalty-free, non-exclusive, non-transferable\nlicense to any government funded COPYRIGHTS and to practice any\ngovernment-funded inventions claimed in any PATENT RIGHTS and as set forth in 35\nU.S.C. Sections 201-211, and the regulations promulgated thereunder, as\namended, or any successor statutes or regulations.\n\n         2.9 No Additional Rights. Nothing in this Agreement shall be construed\nto confer any rights upon COMPANY by implication, estoppel, or otherwise as to\nany technology, copyrights, or patent rights of M.I.T. or any other entity other\nthan the PATENT RIGHTS or COPYRIGHTS (including such rights in derivative works\nor improvements to the PROGRAM created within one year of the EFFECTIVE DATE, as\nset forth in Section 1.11), regardless of whether such technology or patent\nrights shall be dominant or subordinate to any PATENT RIGHTS or COPYRIGHTS.\n\n         2.10 Assignment of Rights to M.I.T. M.I.T. shall make reasonable\nefforts to seek to obtain assignment of rights of all M.I.T. professors and all\nM.I.T. students who are known to be authors of the PROGRAM as it exists on the\nEFFECTIVE DATE of this Agreement.\n\n                        3. COMPANY DILIGENCE OBLIGATIONS.\n\n         3.1 Diligence Requirements. COMPANY shall use diligent efforts, or\nshall cause its AFFILIATES and SUBLICENSEES to use diligent efforts, to develop\nLICENSED PRODUCTS or LICENSED PROCESSES and to introduce LICENSED PRODUCTS or\nLICENSED PROCESSES into the commercial market; thereafter, COMPANY or its\nAFFILIATES or SUBLICENSEES shall make LICENSED PRODUCTS or LICENSED PROCESSES\nreasonably available to the public. Specifically, COMPANY or AFFILIATE or\nSUBLICENSEE, shall fulfill the following obligations:\n\n                  (a) Within [**] after the EFFECTIVE DATE, COMPANY shall \nfurnish M.I.T. with a written research and development plan describing the major\ntasks to be achieved in order to bring to market a LICENSED PRODUCT or a\nLICENSED PROCESS,\n\n                                     - 6 -\n\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\nspecifying the number of staff and other resources to be devoted to such\ncommercialization effort.\n\n                  (b) Within [**] after the end of each calendar year, COMPANY\nshall furnish M.I.T. with a written annual report consistent with Article 6.\n\n                  (c) COMPANY shall develop a working Beta test and models on or\nbefore March 1, 1999, and permit an on-site inspection of a Beta test site and\nmodels by M.I.T. on or before April 1, 1999, and permit one additional Beta site\ninspection by M.I.T. at the conclusion of the Beta trial. Prior to any\ninspection, M.I.T. agrees that each inspection will be subject to a\nnon-disclosure agreement.\n\n                  (d) COMPANY shall raise at least Five Hundred Thousand Dollars\n($500,000) by June 30, 1999 from the sale of Company's equity securities for its\nown account.\n\n                  (e) In the aggregate, COMPANY shall raise at least Two Million\nDollars ($2,000,000) by April 1, 2000 from the sale of Company's equity\nsecurities for its own account.\n\n                  (f) COMPANY shall make a first commercial sale of a LICENSED\nPRODUCT and\/or a first commercial performance of a LICENSED PROCESS on or before\nJune 1, 1999.\n\n                  (g) In any year, COMPANY shall obtain revenue from commercial\nactivities as follows:\n\n                  December 31, 2003 One Million Dollars ($1,000,000);\n                  December 31, 2004 Two Million Dollars ($2,000,000);\n                  December 31, 2005 Three Million Dollars ($3,000,000);\n                  December 31, 2006 Four Million Dollars ($4,000,000);\n                  December 31, 2007 Five Million Dollars ($5,000,000);\n                  December 31, 2008 Six Million Dollars ($6,000,000);\n\n                  and each year thereafter at least Six Million Dollars\n                 ($6,000,000);\n\n                                    or shall\n\n                  obtain cumulative revenue from commercial activities measured\n                  from January 1, 1999 as follows:\n\n                  December 31, 2003 One Million Dollars ($1,000,000);\n                  December 31, 2004 Three Million Dollars ($3,000,000);\n                  December 31, 2005 Six Million Dollars ($6,000,000);\n\n                                     - 7 -\n\n\n                  December 31, 2006 Ten Million Dollars ($10,000,000);\n                  December 31, 2007 Fifteen Million Dollars ($15,000,000);\n                  December 31, 2008 Twenty Million Dollars ($20,000,000).\n\n                  Each year thereafter cumulative revenue from commercial\n                  activities shall increase by at least Six Million Dollars\n                  ($6,000,000).\n\n                  COMPANY satisfies the diligence requirement of this Section\n                  3.1(g) in any given year if it satisfies either the revenue\n                  from commercial activities requirement or the cumulative\n                  revenue from commercial activities requirement as set above\n                  for that year.\n\n         In the event that COMPANY fails to fulfill any or all of its\nobligations under Sections 3.1(a), (b), (c), (d), (e), and (f), then M.I.T. may\ntreat such failure as a material breach in accordance with Section 14.3(b).\n\n         In the event that COMPANY fails to fulfill its obligations under\nSection 3.1(g), and after COMPANY receives written notice from M.I.T. of such\nfailure, M.I.T.'s obligations under Sections 2.2 and 2.5 shall terminate and\nM.I.T. shall be free to grant other licenses to the PATENT RIGHTS and \nCOPYRIGHTS. Upon termination of the restrictions in Sections 2.2 and 2.5,\nCOMPANY may elect not to continue paying patent fees and costs as outlined in\nSection 7.3, and M.I.T. may at its own discretion continue or abandon any or all\nof the PATENT RIGHTS. M.I.T. will notify COMPANY in writing at least 30 days\nprior to aforementioned discontinuance or abandonment, and COMPANY may elect to\nresume coverage of patent fees and costs and direct M.I.T. not to discontinue or\nabandon any or all of the PATENT RIGHTS.\n\n                            4. DELIVERY OF MATERIALS.\n\n         4.1 Upon execution of this Agreement M.I.T. shall deliver to COMPANY\none (1) copy of the PROGRAM and related documentation, if any.\n\n         4.2 COMPANY accepts the PROGRAM on an 'AS IS' basis. Accordingly,\nM.I.T. shall not be required to load the PROGRAM onto COMPANY's machines; test\nfor proper operation, perform any debugging; make any corrections; provide\nmaintenance; provide any updates, enhanced capabilities, or new features; or\nassist in the understanding or use of the PROGRAM at any time. The PROGRAM is a\nresearch program, and M.I.T. does not represent that it is free of errors or\nbugs or suitable for any particular tasks.\n\n                                     - 8 -\n\n\n   \n    \n\n                         5. ROYALTIES AND PAYMENT TERMS.\n\n         5.1      Consideration for Grant of Rights\n\n                  (a) Equity and Patent Costs. In consideration of the rights\nand licenses granted herein, COMPANY agrees to issue equity to M.I.T. as set\nforth in Section 5.1(b) and to pay patent filing, prosecution, and maintenance\ncosts as set forth in Section 7.3. The parties agree that no other monetary\npayments are due to M.I.T. hereunder\n\n                  (b) Issuance of Common Stock to M.I.T.\n\n                           (i)      Equity Financings.\n\n   \n                                    (A) If (x) the COMPANY sells Common Stock or\nsecurities convertible into or exchangeable for Common Stock ('Convertible\nSecurities') resulting in gross proceeds to the COMPANY of at least $500,000 \n(an 'Equity Financing'), and (y) the Value (as defined below) of the COMPANY\nimmediately after such Equity Financing is equal to or greater than $6,000,000,\nthen the COMPANY shall issue to M.I.T. promptly after such Equity Financing such\nnumber of whole shares of the COMPANY's Common Stock that is determined by\nsubtracting that number of shares of Common Stock, if any, issued pursuant to\nclause (B) below from the quotient obtained by dividing $288,000 by the Equity\nFinancing Price (as defined below). Except as provided in subsection (b)(ii)\nbelow, the COMPANY shall have no further obligation to issue shares of capital\nstock to M.I.T. under this subsection (b) upon the satisfaction of its\nobligation to issue shares to M.I.T. after the first Equity Financing where the\nValue of the COMPANY immediately thereafter is equal to or greater than\n$6,000,000. For purposes hereof the Value of the COMPANY shall be determined by\nmultiplying the Equity Financing Price by the total number of shares of Common\nStock outstanding on a fully-diluted common stock-equivalent basis. 'Equity\nFinancing Price' shall mean, with respect to any Equity Financing, the quotient\nobtained by dividing (a) the gross proceeds paid to the COMPANY in the Equity\nFinancing by (b) the aggregate number of shares of Common Stock (i) sold in the\nEquity Financing or (ii) into or for which Convertible Securities sold in the\nEquity Financing may be converted or exchanged, as the case may be. For purposes\nhereof, an Equity Financing shall not include money borrowed by the COMPANY\npursuant to a bridge loan or loans in an aggregate amount not to exceed\n$1,500,000 where such bridge loan or loans is in anticipation of Equity\nFinancing.\n    \n\n   \n                                    (B) If (x) there is an Equity Financing, and\n(y) the Value of the COMPANY (as defined below) immediately after such Equity\nFinancing is less than $6,000,000.\n    \n\n                                     - 9 -\n\n\n   \n    \n\n   \nthen the COMPANY shall issue to M.I.T. promptly after such Equity Financing such\nnumber of whole shares of the COMPANY's Common Stock such that M.I.T. holds 4.8%\nof the total number of shares of Common Stock outstanding on a fully-diluted\ncommon stock-equivalent basis. Except as provided in subsection (b)(ii) below,\nthe COMPANY shall have no further obligation to issue shares of capital stock to\nM.I.T. under this subsection (b) upon the satisfaction of its obligations to\nissue shares to M.I.T. after the first Equity Financing where the Value of the\nCOMPANY immediately thereafter is equal to or greater than $6,000,000.\n    \n\n   \n                           (ii) Certain Dilutive Financings. If, after M.I.T.\nreceives its shares of COMPANY Common Stock pursuant to subsection (b)(i) above,\nCOMPANY sells Common Stock or Convertible Securities in an Equity Financing (a\n'Dilutive Equity Financing') at a per share purchase price (subject to\nappropriate adjustment in the event of stock splits, recapitalizations and\nsimilar events) less than 75% of the most recent Equity Financing Price (the\n'Dilutive Financing Price'), and if M.I.T. was issued shares of capital stock of\nthe COMPANY pursuant to such recent Equity Financing, then the COMPANY shall\noffer to M.I.T., at the Dilutive Financing Price, such additional number of\nshares of Common Stock as is necessary to maintain M.I.T.'s pro rata ownership\nin the COMPANY (calculated based on shares acquired pursuant to this subsection\n(b) as calculated immediately prior to such Dilutive Equity Financing; provided,\nhowever, that this subsection (b)(ii) shall not apply to issuances by the\nCOMPANY of (a) shares of capital stock pursuant to a stock option or stock\nincentive plan approved by the Board of Directors of the COMPANY, (b) shares of\ncapital stock upon conversion or exchange of Convertible Securities, (c) shares\nof capital stock in consideration for the acquisition by merger or otherwise by\nthe COMPANY or any of its subsidiaries of any other entity, (d) shares of\ncapital stock as a stock dividend to holders of capital stock or upon any\nsubdivision or combination of shares of capital stock, or (e) shares of capital\nstock to the public in an initial public offering ('IPO') pursuant to a\nregistration statement filed with the Securities and Exchange Commission. The\nrights of M.I.T. under this subsection (b)(ii) shall terminate upon an IPO.\n    \n\n                           (iii) Representation and Warranty. COMPANY represents\nand warrants to M.I.T. that all shares of Common Stock issued by COMPANY to\nM.I.T. pursuant to this subsection (b) shall be fully paid and nonassessable\n\n         5.2      Payments.\n\n                  (a) Method of Payment. All payments under this Agreement\nshould be made payable to 'Massachusetts Institute of Technology' and sent to\nthe address identified in\n\n                                     - 10 -\n\n   \n    \n\nSection 16.1. Each payment should reference this Agreement and identify the\nobligation under this Agreement that the payment satisfies.\n\n                  (b) Payments in U.S. Dollars. All payments due under this\nAgreement shall be payable in United States dollars. Conversion of foreign\ncurrency to U.S. dollars shall be made at the conversion rate existing in the\nUnited States (as reported in the Wall Street Journal) on the first working day\nof the month in which any invoice from M.I.T. is dated. Such payments shall be\nwithout deduction of exchange, collection, or other charges, and, specifically,\nwithout deduction of withholding or similar taxes or other government imposed\nfees or taxes.\n\n   \n                  (c) Late Payments. Any payments by COMPANY that are not paid\non or before the date such payments are due under this Agreement shall bear\ninterest, to the extent permitted by law, at two percentage points above the\nPrime Rate of interest as reported in the Wall Street Journal on the date\npayment is due.\n    \n\n                         6. REPORTS AND RECORD KEEPING.\n\n         6.1      Frequency of Reports.\n\n   \n                  (a) Upon First Commercial Sale of a LICENSED PRODUCT or\nCommercial Performance of a LICENSED PROCESS. COMPANY shall report to M.I.T. the\ndate of first commercial sale of a LICENSED PRODUCT and the date of first\ncommercial performance of a LICENSED PROCESS within sixty (60) days of\noccurrence in each country for which PATENT RIGHTS exist.\n    \n\n   \n                  (b) Before and After First Commercial Sale. COMPANY shall\ndeliver reports to M.I.T. within sixty (60) days of the end of each REPORTING\nPERIOD, containing information concerning the immediately preceding REPORTING\nPERIOD, as further described in Section 6.2.\n    \n\n   \n                  (c) Financing. COMPANY shall deliver written reports to M.I.T.\nwithin 20 days of meeting the financing diligence requirements set forth in\nSections 3.1 (d) and (e). Reports shall provide a description of the financing\nevent and the amount of funds received.\n    \n\n         6.2 Content of Reports. Each report delivered by COMPANY to M.I.T.\npursuant to Section 6.1(a) or 6.1(b) shall contain at least the following\ninformation for the immediately preceding REPORTING PERIOD:\n\n                                     - 11 -\n\n   \n    \n\n\n                  (i) the number Beta test sites operated by COMPANY and the\nstatus of the test sites;\n\n                  (ii) the total capitalization of the COMPANY and the new\nfinancing received during the REPORTING PERIOD;\n\n                  (iii) the COMPANY'S annual revenues from commercial activities\nand the cumulative revenues from commercial activities measured from January 1,\n1999 for LICENSED PRODUCTS and LICENSED PROCESSES.\n\n         After COMPANY fulfills the requirement of Section 3.1(c) and the\nreporting requirement of Section 6.2(i) with respect to such complying with Beta\ntest sites, the reporting requirement of Section 6.2(i) is deleted from this\nSection 6.2. After COMPANY fulfills the requirements of Sections 3.1(d) and (e)\nand the reporting requirement of this Section 6.2(ii)with respect to such\ncomplying financing activities, the reporting requirement of Section 6.2(ii) is\ndeleted from this Section 6.2.\n\n         6.3 Financial Statements. On or before the ninetieth (90th) day\nfollowing the close of COMPANY's fiscal year, COMPANY shall provide M.I.T. with\nCOMPANY's financial statements for the preceding fiscal year including, at a\nminimum, a balance sheet and an income statement, certified by COMPANY's\ntreasurer or chief financial officer or by an independent auditor.\n\n   \n         6.4 Record keeping. COMPANY shall maintain, and shall cause its\nAFFILIATES to maintain, complete and accurate records relating to the rights and\nobligations under this Agreement, which records shall contain sufficient\ninformation to permit M.I.T. to confirm the accuracy of any reports delivered to\nM.I.T. and compliance in other respects with this Agreement. The relevant party\nshall retain such records for at least five (5) years following the end of the\ncalendar year to which they pertain, during which time M.I.T., or M.I.T.'s\nappointed agents, shall have the right, at M.I.T.'s expense, to inspect such\nrecords during normal business hours to verify any reports made or compliance in\nother respects under this Agreement. Such inspections shall be conducted at the\nCOMPANY'S place of business, with reasonable notice, and no more than once every\n12 months.\n    \n\n                                     - 12 -\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n                             7. PATENT PROSECUTION.\n\n         7.1 Responsibility for PATENT RIGHTS. M.I.T. shall prepare, file,\nprosecute, and maintain all of the PATENT RIGHTS, except as noted below for\nM.I.T. Case No. [**]. COMPANY shall have reasonable opportunities to advise\nM.I.T. and shall cooperate with M.I.T. in such filing, prosecution and\nmaintenance.\n\nCOMPANY shall prepare, file, prosecute, and maintain any patents, patent\napplications, continuations, continuations-in-part and divisionals having claims\ncovering the subject matter of M.I.T. Case No. [**]. The attorney handling the\nfiling, prosecution, and maintenance of this M.I.T. Case shall be notified that\nM.I.T. is the owner of all patents, patent applications, continuations,\ncontinuations-in-part and divisionals, that all prosecution shall be conducted\nin the best interests of M.I.T., and that M.I.T shall be copied on all\ncorrespondence.\n\n         7.2 International (non-United States) Filings. Appendix B is a list of\ncountries in which patent applications corresponding to the United States patent\napplications listed in Appendix A shall be filed, prosecuted, and maintained.\nAppendix B may be amended by COMPANY. COMPANY agrees to notify M.I.T.\nwithin 30 days of such an amendment.\n\n   \n         7.3 Payment of Expenses. Payment of all fees and costs, including\nattorney's fees, relating to the filing, prosecution and maintenance of the\nPATENT RIGHTS shall be the responsibility of COMPANY, whether such amounts were\nincurred before or after the EFFECTIVE DATE. For information purposes, as of the\nEFFECTIVE DATE, M.I.T. has incurred approximately $18,000 for such\npatent-related fees and costs. Upon the date when the total COMPANY financing is\nat least Five Hundred Thousand Dollars ($500,000), but no later than on June 30,\n1999, COMPANY shall pay to M.I.T. all fees and costs incurred by M.I.T. through\nsuch date relating to the filing, prosecution and maintenance of the PATENT\nRIGHTS. Thereafter, COMPANY shall reimburse all amounts due pursuant to this\nSection within thirty (30) days of invoicing, except as indicated below for\nM.I.T. Case No. [**], late payments shall accrue interest pursuant to Section\n5.2(c). In all instances, M.I.T. shall pay the fees prescribed for large\nentities to the United States Patent and Trademark Office.\n    \n\n   \nCOMPANY shall be invoiced directly by the attorney for all fees and costs\nrelating to M.I.T. Case No. [**] shall be responsible paying these invoices\ndirectly to the attorney.\n    \n\n\n                                     - 13 -\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n\n   \n         7.4 Termination of Rights. Anytime after June 30, 1999, COMPANY may\nelect, on thirty (30) days prior written notice, not to continue paying patent\nfees and costs incurred by M.I.T. through such date of written notice, as\noutlined in Section 7.3, and M.I.T. may at its own discretion continue or\nabandon any or all of the PATENT RIGHTS for which such payments have been\ndiscontinued. COMPANY may also elect, on thirty (30) days prior written notice,\nto discontinue the filing, prosecution and maintenance and payment of all\nrelated fees and costs of any patents or patent applications having claims\ncovering the subject matter of M.I.T. Case No. [**], and M.I.T. may at its own\ndiscretion and expense, continue or abandon any or all of such PATENT RIGHTS for\nwhich the filing, prosecution or maintenance was discontinued. In the event that\nCOMPANY elects not to continue to pay the patent fees and costs for any or all\nPATENT RIGHTS as outlined in Section 7.3 or elects not to continue to file,\nprosecute or maintain patents and patent applications arising out of M.I.T. Case\nNo. [**], all as provided above, the licenses granted with respect to the\napplicable patents to which such election applied shall terminate at the\nexpiration of the thirty (30) day notice period specified in this Section 7.4.\nNothing in this Section 7.4 shall release COMPANY from its obligations under\nArticle 14.\n    \n\n                                8. INFRINGEMENT.\n\n         8.1 Notification of Infringement. Each party agrees to provide written\nnotice to the other party promptly after becoming aware of any infringement of\nthe PATENT RIGHTS or COPYRIGHTS.\n\n         8.2      Right to Prosecute Infringements of the PATENT RIGHTS.\n\n                  (a) COMPANY Right to Prosecute. So long as COMPANY remains the\nexclusive licensee of the PATENT RIGHTS in the FIELD in the TERRITORY, COMPANY,\nto the extent permitted by law, shall have the right, under its own control and\nat its own expense, to prosecute any third party infringement of the PATENT\nRIGHTS in the FIELD in the TERRITORY, subject to Section 8.4. If required by\nlaw, M.I.T. shall permit any action under this Section to be brought in its\nname, including being joined as a party-plaintiff, provided that COMPANY shall\nhold M.I.T. harmless from, and indemnify M.I.T. against, any costs, expenses, or\nliability that M.I.T. incurs in connection with such action.\n\n                           Prior to commencing any such action, COMPANY shall\nconsult with M.I.T. and shall consider the views of M.I.T. regarding the\nadvisability of the proposed action and its effect on the public interest.\nCOMPANY shall not enter into any settlement, consent judgment, or other\nvoluntary final disposition of any infringement action under this Section\nwithout the prior written consent of M.I.T., which will not be materially\nwithheld or delayed.\n\n\n                                     - 14 -\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n                  (b) M.I.T. Right to Prosecute. In the event that COMPANY is\nunsuccessful in persuading the alleged infringer to desist or fails to have\ninitiated an infringement action within a reasonable time after COMPANY first\nbecomes aware of the basis for such action, M.I.T. shall have the right, at its\nsole discretion, to prosecute such infringement under its sole control and at\nits sole expense, and any recovery obtained shall belong to M.I.T. M.I.T. will\nindemnify COMPANY for any order for costs that may be made against COMPANY in\nsuch proceedings.\n\n         8.3 Declaratory Judgment Actions. In the event that a declaratory\njudgment action is brought against M.I.T. or COMPANY by a third party alleging\ninvalidity or unenforceability of the PATENT RIGHTS, M.I.T., at its option,\nshall have the right within twenty (20) days after commencement of such action\nto take over the sole defense of the action at its own expense. If M.I.T. does\nnot exercise this right, COMPANY may take over the sole defense of the action at\nCOMPANY's sole expense, subject to Section 8.4.\n\n         8.4 Recovery. Any recovery obtained in an action brought by COMPANY\nunder Sections 8.2 or 8.3 shall be distributed as follows: (i) each party shall\nbe reimbursed for any expenses incurred in the action, (ii) as to ordinary\ndamages, COMPANY shall receive 100% of any award, and (iii) as to special or\npunitive damages (including any damages in excess of 'single damages'), M.I.T.\nshall receive thirty percent (30%) and the COMPANY seventy percent (70%) of any\naward.\n\n         8.5 Cooperation. Each party agrees to cooperate in any action under\nthis Article which is controlled by the other party, provided that the\ncontrolling party reimburses the cooperating party promptly for any costs and\nexpenses incurred by the cooperating party in connection with providing such\nassistance.\n\n         8.6 Right to Sublicense. So long as COMPANY remains the exclusive\nlicensee of the PATENT RIGHTS in the FIELD in the TERRITORY, COMPANY shall have\nthe sole right to sublicense any alleged infringer in the FIELD in the TERRITORY\nfor future use of the PATENT RIGHTS in accordance with the terms and conditions\nof this Agreement relating to sublicenses.\n\n                                     - 15 -\n\n                                  9. COPYRIGHT.\n\n         COMPANY, SUBLICENSEES and END-USERS acknowledge that title to the\nCOPYRIGHTS shall remain with M.I.T. and that any copies of the PROGRAM and\nrelated documentation, or portions thereof, made by COMPANY, SUBLICENSEES and\nEND-USERS hereunder, shall include an M.I.T. copyright notice thereon in either\nof the following forms: 'Copyright 1998, Massachusetts Institute of Technology.\nAll Rights Reserved.' or '(C) 1998 M.I.T. All Rights Reserved.' The notice shall\nbe affixed to all copies or portions thereof in such manner and location as to\ngive reasonable notice of M.I.T.'s claim of copyright.\n\n                       10. INDEMNIFICATION AND INSURANCE.\n\n         10.1     Indemnification.\n\n                  (a) Indemnity. COMPANY shall indemnify, defend, and hold\nharmless M.I.T. and its trustees, officers, faculty, students, employees, and\nagents and their respective successors, heirs and assigns (the 'Indemnitees'),\nagainst any liability, damage, loss, or expense (including reasonable attorneys\nfees and expenses) incurred by or imposed upon any of the Indemnitees in\nconnection with any claims, suits, actions, demands or judgments arising out of\nany theory of liability (including without limitation actions in the form of\ntort, warranty, or strict liability and regardless of whether such action has\nany factual basis) concerning any product, process, or service that is made,\nused, sold, imported, or performed pursuant to any right or license granted\nunder this Agreement.\n\n                  (b) Procedures. The Indemnitees agree to provide COMPANY with\nprompt written notice of any claim, suit, action, demand, or judgment for which\nindemnification is sought under this Agreement. COMPANY agrees, at its own\nexpense, to provide attorneys reasonably acceptable to M.I.T. to defend against\nany such claim. The Indemnitees shall cooperate fully with COMPANY in such\ndefense and will permit COMPANY to conduct and control such defense and the\ndisposition of such claim, suit, or action (including all decisions relative to\nlitigation, appeal, and settlement); provided, however, that any Indemnitee\nshall have the right to retain its own counsel, at the expense of COMPANY, if\nrepresentation of such Indemnitee by the counsel retained by COMPANY would be\ninappropriate because of actual or potential differences in the interests of\nsuch Indemnitee and any other party represented by such counsel. Notwithstanding\nthe above, the COMPANY shall not be obligated to pay the expenses of more than\none additional counsel. COMPANY agrees to keep M.I.T. informed of the\n\n                                     - 16 -\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n\nprogress in the defense and disposition of such claim and to consult with M.I.T.\nwith regard to any proposed settlement.\n\n         10.2 Insurance. Prior to first Beta test of a LICENSED PRODUCT or\nLICENSED PROCESS, COMPANY shall obtain and carry in full force and effect\ncommercial general liability insurance, including product liability and errors\nand omissions insurance which shall protect COMPANY and Indemnitees with respect\nto events covered by Section 10.1(a) above. Such insurance (i) shall be issued\nby an insurer licensed to practice in the Commonwealth of Massachusetts or an\ninsurer pre-approved by M.I.T., such approval not to be unreasonably withheld,\n(ii) shall list M.I.T. as an additional named insured thereunder, (iii) shall be\nendorsed to include product liability coverage, and (iv) shall require thirty\n(30) days written notice to be given to M.I.T. prior to any cancellation or\nmaterial change thereof. The limits of such insurance shall not be less than One\nMillion Dollars ($1,000,000) per occurrence with an aggregate of Three Million\nDollars ($3,000,000) for bodily injury including death; One Million Dollars\n($1,000,000) per occurrence with an aggregate of Three Million Dollars\n($3,000,000) for property damage; and One Million Dollars ($1,000,000) per\noccurrence with an aggregate of Three Million Dollars ($3,000,000) for errors\nand omissions. In the alternative, COMPANY may self-insure subject to prior\napproval of M.I.T. COMPANY shall provide M.I.T. with Certificates of Insurance\nevidencing compliance with this Section. COMPANY shall continue to maintain such\ninsurance or self-insurance after the expiration or termination of this\nAgreement during any period in which COMPANY or any AFFILIATE or SUBLICENSEE,\ncontinues (i) to make, use, or sell a product that was a LICENSED PRODUCT under\nthis Agreement or (ii) to perform a service that was a LICENSED PROCESS under\nthis Agreement, and thereafter for a period of five (5) years.\n\n                      11. NO REPRESENTATIONS OR WARRANTIES.\n\n         EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH IN THIS AGREEMENT,\nM.I.T. MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE PATENT\nRIGHTS AND COPYRIGHTS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION\nWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,\nNONINFRINGEMENT, VALIDITY OF PATENT RIGHTS CLAIMS, WHETHER ISSUED OR PENDING,\nAND THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE.\nSpecifically, and not to limit the foregoing, M.I.T. makes no warranty or\nrepresentation (i) regarding the validity or scope of the PATENT RIGHTS, (ii)\nthat the exploitation of the PATENT RIGHTS or COPYRIGHTS or any LICENSED PRODUCT\nor LICENSED PROCESS\n\n                                     - 17 -\n\nwill not infringe any patents. copyrights or other intellectual property rights\nof M.I.T. or of a third party, and (iii) that a third party is not currently\ninfringing or will not infringe the PATENT RIGHTS or COPYRIGHTS.\n\n         Except as provided in Section 10.1 (a), IN NO EVENT SHALL EITHER PARTY,\nITS TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES BE LIABLE TO THE\nOTHER PARTY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING\nECONOMIC DAMAGES OR INJURY TO PROPERTY AND LOST PROFITS, REGARDLESS OF WHETHER\nSUCH PARTY SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL\nKNOW OF THE POSSIBILITY OF THE FOREGOING.\n\n                                12. ASSIGNMENT.\n\n         This Agreement is personal to the COMPANY and no rights or obligations\nmay be assigned by COMPANY without the prior written consent of M.I.T. which\nwill not be unreasonably withheld, except no such consent will be required to\nassign this Agreement to a successor of the COMPANY's business to which this\nAgreement pertains or to a purchaser of substantially all of the COMPANY's\nassets related to this Agreement, so long as such successor or purchaser shall\nagree in writing to be bound by the terms and conditions hereof prior to such\nassignment. Failure of such assignee to so agree shall be grounds for\ntermination of this agreement under Section 14.3.\n\n                        13. GENERAL COMPLIANCE WITH LAWS\n\n         13.1 Export Control. With regard to all technology licensed from M.I.T.\nhereunder, COMPANY and its AFFILIATES and SUBLICENSEES shall comply with all\nUnited States laws and regulations controlling the export of certain commodities\nand technical data, including without limitation all Export Administration\nRegulations of the United States Department of Commerce. Among other things,\nthese laws and regulations prohibit or require a license for the export of\ncertain types of commodities and technical data to specified countries. COMPANY\nhereby gives written assurance that it will comply with, and will require that\nits AFFILIATES and SUBLICENSEES comply with, all United States export control\nlaws and regulations with regard to PROGRAMS, DERIVATIVES and any other\ntechnology obtained from M.I.T., that it bears sole responsibility for any\nviolation of such laws and regulations by itself or its AFFILIATES or\nSUBLICENSEES, and that it will indemnify, defend, and hold M.I.T. harmless (in\naccordance with Section 10.1) for the consequences of any such violation.\n\n                                     - 18 -\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n\n         13.2 Non-Use of M.I.T. Name. COMPANY and its AFFILIATES and\nSUBLICENSEES shall not use the name of Massachusetts Institute of Technology,\n'Lira Laboratory' or any variation, adaptation, or abbreviation thereof, or of\nany of its trustees, officers, faculty, students, employees, or agents (other\nthan COMPANY employees), or any trademark owned by M.I.T., or any terms of this\nAgreement in any promotional material or other public announcement or disclosure\nwithout the prior written consent of M.I.T. The foregoing, notwithstanding,\nwithout the consent of M.I.T., COMPANY may state that it is licensed by M.I.T.\nunder one or more of the patents and\/or patent applications comprising the\nPATENT RIGHTS and under the COPYRIGHTS.\n\n         13.3 Marking of LICENSED PRODUCTS. To the extent commercially feasible\nas consistent with prevailing business practices, COMPANY shall mark, and shall\ncause its AFFILIATES and SUBLICENSEES to mark, all LICENSED PRODUCTS that are\nmanufactured or sold under this Agreement with the number of each issued patent\nunder the PATENT RIGHTS that applies to such LICENSED PRODUCT.\n\n                                14. TERMINATION.\n\n         14.1 Voluntary Termination by COMPANY. COMPANY shall have the right to\nterminate this Agreement, for any reason, (i) upon at least six (6) months prior\nwritten notice to M.I.T., such notice to state the date at least six (6) months\nin the future upon which termination is to be effective, and (ii) upon payment\nof all amounts due to M.I.T. through such termination effective date.\n\n         14.2 Cessation of Business. If COMPANY ceases to carry on its business\nrelated to this Agreement due to insolvency, M.I.T. shall have the right to\nterminate this Agreement immediately upon written notice to COMPANY.\n\n         14.3     Termination for Default.\n\n   \n                  (a) Nonpayment. In the event COMPANY fails to pay any amounts\ndue and payable to M.I.T. hereunder, and fails to make such payments within\nthirty (30) days after receiving written notice of such failure, M.I.T. may \nterminate this Agreement immediately upon written notice to COMPANY.\n    \n\n                  (b) Material Breach. In the event COMPANY commits a material\nbreach of its obligations under this Agreement, except for breach as described\nin Section 14.3(a), and\n\n                                     - 19 -\n\n         Confidential Materials omitted and filed separately with the\n         Securities and Exchange Commission. Asterisk denote omission.\n\nto cure that breach within [**] after receiving written notice thereof, M.I.T.\nmay terminate this Agreement immediately upon written notice to COMPANY.\n\n         14.4     Effect of Termination.\n\n                  (a)      Survival.\n\n                           (i)      The following provisions shall survive the\n                                    expiration or termination of this Agreement:\n                                    Articles 1, 10, 11, 15 and 16, and Sections\n                                    5.1(b), 6.2 (obligation to provide final\n                                    report), 6.4, 13.1, and 14.4.\n\n                           (ii)     If, upon termination COMPANY has fulfilled\n                                    all of its obligations under Sections\n                                    3.1(a), (b), (c), (d), (e), and (f), then\n                                    COMPANY shall retain the following license:\n                                    COMPANY shall have the non-exclusive right\n                                    and license under the COPYRIGHTS to use,\n                                    reproduce, modify, and distribute the\n                                    PROGRAM solely for the purpose of using,\n                                    reproducing, modifying, and distributing the\n                                    PROGRAM and DERIVATIVES.\n\n                  (b) Pre-termination Obligations. In no event shall termination\nof this Agreement release COMPANY from the obligation to pay any amounts that\nbecame due on or before the effective date of termination.\n\n         14.5 Effect of Termination on Software: Upon termination of this\n         Agreement in accordance with Section 14.3, COMPANY shall provide M.I.T.\n         with written assurance that the original and all copies of the PROGRAM\n         have been destroyed, except that, upon prior written authorization from\n         M.I.T., COMPANY may retain a copy of the PROGRAM for archival and\n         maintenance purposes.\n\n         Upon termination of this Agreement for any reason, the rights of\nEND-USERS to the execution and enjoyment of the PROGRAM and its DERIVATIVES\nshall not be abridged or diminished in any way.\n\n                             15. DISPUTE RESOLUTION.\n\n         15.1 Mandatory Procedures. The parties agree that any dispute arising\nout of or relating to this Agreement shall be resolved solely by means of the\nprocedures set forth in this Article, and that such procedures constitute\nlegally binding obligations that are an essential provision of\n\n                                     - 20 -\n\n         Confidential Materials omitted and filed separately with the\n         Securities and Exchange Commission. Asterisk denote omission.\n\nthis Agreement. If either party fails to observe the procedures of this Article,\nas may be modified by their written agreement, the other party may bring an\naction for specific performance of these procedures in any court of competent\njurisdiction.\n\n         15.2 Equitable Remedies. Although the procedures specified in this\nArticle are the sole and exclusive procedures for the resolution of disputes\narising out of or relating to this Agreement, either party may seek a\npreliminary injunction or other provisional equitable relief if, in its\nreasonable judgment, such action is necessary to avoid irreparable harm to\nitself or to preserve its rights under this Agreement.\n\n         15.3     Dispute Resolution Procedures.\n\n                  (a) Mediation. In the event any dispute arising out of or\nrelating to this Agreement remains unresolved within sixty (60) days from the\ndate the affected party notified the other party of such dispute, either party\nmay initiate mediation upon written notice to the other party ('Notice Date'),\nwhereupon both parties shall be obligated to engage in a mediation proceeding\nunder the then current Center for Public Resources ('CPR') Model Procedure for\nMediation of Business Disputes (http:\/\/www.cpradr.org\/medmodel.htm), except that\nspecific provisions of this Article shall override inconsistent provisions of\nthe CPR Model Procedure. The mediator will be selected from the CPR Panels of\nNeutrals. If the parties cannot agree upon the selection of a mediator within\nfifteen (15) business days after the Notice Date, then upon the request of\neither party, the CPR shall appoint the mediator. The parties shall attempt to\nresolve the dispute through mediation until the first of the following occurs:\n(i) the parties reach a written settlement; (ii) the mediator notifies the\nparties in writing that they have reached an impasse; (iii) the parties agree in\nwriting that they have reached an impasse; or (iv) the parties have not reached\na settlement within sixty (60) days after the Notice Date.\n\n                  (b) Trial Without Jury. If the parties fail to resolve the\ndispute through mediation, or if neither party elects to initiate mediation,\neach party shall have the right to pursue any other remedies legally available\nto resolve the dispute, provided, however, that the parties expressly waive any\nright to a jury trial in any legal proceeding under this Article.\n\n         15.4 Performance to Continue. Each party shall continue to perform its\nundisputed obligations under this Agreement pending final resolution of any\ndispute arising out of or relating to this Agreement; provided, however, that a\nparty may suspend performance of its undisputed obligations during any period in\nwhich the other party fails or refuses to perform its\n\n                                     - 21 -\n\nundisputed obligations. Nothing in this Article is intended to relieve COMPANY\nfrom its obligation to make undisputed payments pursuant to Articles 5 and 7 of\nthis Agreement.\n\n         15.5 Statute of Limitations. The parties agree that all applicable\nstatutes of limitation and time-based defenses (such as estoppel and laches)\nshall be tolled while the procedures set forth in Sections 15.3(a) are pending.\nThe parties shall cooperate in taking any actions necessary to achieve this\nresult.\n\n                               16. MISCELLANEOUS.\n\n         16.1 Notice. Any notices required or permitted under this Agreement\nshall be in writing, shall specifically refer to this Agreement, and shall be\nsent by hand, recognized national overnight courier, confirmed facsimile\ntransmission, confirmed electronic mail, or registered or certified mail,\npostage prepaid, return receipt requested, to the following addresses or\nfacsimile numbers of the parties:\n\n         If to M.I.T.:     Technology Licensing Office, Room NE25-230\n                           Massachusetts Institute of Technology\n                           77 Massachusetts Avenue\n                           Cambridge, MA 02139-4307\n                           Attention:  Director\n                           Tel:  617-253-6966\n                           Fax:  617-258-6790\n\n         If to COMPANY:             Akamai Technologies, Inc.\n                                    205 Hampshire Street\n                                    Cambridge, MA 02139\n\n                                    Attention:  President\n                                    Tel:  617-253-5876\n                                    Fax:  617-258-5429\n\n         With a copy to:            Hale and Dorr LLP.\n                                    60 State Street\n                                    Boston, MA 02109\n\n                                    Attention:  Michael J. Bevilacqua\n                                    Tel:  617-905-6329\n                                    Fax:  617-244-9625\n\n         All notices under this Agreement shall be deemed effective upon\nreceipt. A party may change its contact information immediately upon written\nnotice to the other party in the manner provided in this Section.\n\n                                     - 22 -\n\n         Confidential Materials omitted and filed separately with the\n         Securities and Exchange Commission. Asterisk denote omission.\n\n         16.2 Governing Law. This Agreement and all disputes arising out of or\nrelated to this Agreement, or the performance, enforcement, breach or\ntermination hereof, and any remedies relating thereto, shall be construed,\ngoverned, interpreted and applied in accordance with the laws of the\nCommonwealth of Massachusetts, U.S.A., without regard to conflict of laws\nprinciples, except that questions affecting the construction and effect of any\npatent shall be determined by the law of the country in which the patent shall\nhave been granted.\n\n         16.3 Force Majeure. Neither party will be responsible for delays\nresulting from causes beyond the reasonable control of such party, including\nwithout limitation fire, explosion, flood, war, strike, or riot, provided that\nthe nonperforming party uses commercially reasonable efforts to avoid or remove\nsuch causes of nonperformance and continues performance under this Agreement\nwith reasonable dispatch whenever such causes are removed.\n\n         16.4 Amendment and Waiver. This Agreement may be amended, supplemented,\nor otherwise modified only by means of a written instrument signed by both\nparties. Any waiver of any rights or failure to act in a specific instance shall\nrelate only to such instance and shall not be, construed as an agreement to\nwaive any rights or fail to act in any other instance, whether or not similar.\n\n         16.5 Severability. In the event that any provision of this Agreement\nshall be held invalid or unenforceable for any reason, such invalidity or\nunenforceability shall not affect any other provision of this Agreement, and the\nparties shall negotiate in good faith to modify the Agreement to preserve (to\nthe extent possible) their original intent. If the parties fail to reach a\nmodified agreement within thirty (30) days after the relevant provision is held\ninvalid or unenforceable, then the dispute shall be resolved in accordance with\nthe procedures set forth in Article 15. While the dispute is pending resolution,\nthis Agreement shall be construed as if such provision were deleted by agreement\nof the parties.\n\n         16.6 Binding Effect. This Agreement shall be binding upon and inure to\nthe benefit of the parties and their respective permitted successors and\nassigns.\n\n         16.7 Headings. All headings are for convenience only and shall not\naffect the meaning of any provision of this Agreement.\n\n         16.8 Entire Agreement. This Agreement constitutes the entire agreement\nbetween the parties with respect to its subject matter and supersedes all prior\nagreements or understandings between the parties relating to its subject matter.\n\n                                     - 23 -\n\n         IN WITNESS WHEREOF, the parties have caused this Agreement to be\nexecuted by their duly authorized representatives.\n\nTHE EFFECTIVE DATE OF THIS AGREEMENT IS Oct. 26, 1998.\n\nMASSACHUSETTS INSTITUTE OF                           AKAMAI TECHNOLOGIES, INC.\nTECHNOLOGY\nTechnology Licensing Office\n\n\nBy:    \/s\/ Lita Nelsen                               By: \/s\/ Daniel Lewin\nName:  Lita L. Nelsen, Director                      Name: Daniel Lewin\nTitle: Technology Licensing Office                   Title: President\n\n\nMASSACHUSETTS INSTITUTE OF\nTECHNOLOGY\nVice President for Research\n\nBy:    \/s\/ J.D. Litster\nName:  J.D. Litster\nTitle: Vice President for Research\n\n\n                                     - 24 -\n\n         Confidential Materials omitted and filed separately with the\n         Securities and Exchange Commission. Asterisk denote omission.\n\n                                   APPENDIX A\n\n<font size=\"2\">I.       List of United States Patent Applications and Patents and Other M.I.T.\n         Intellectual Property\n\n1.       M.I.T. Case No. [**] Patent application [**] and Continuation-in-Part\n         application [**]\n\n2.       M.I.T. Case No. [**] and any patent application having claims covering\n         the subject matter of such M.I.T. Case No.\n\n3.       M.I.T. Case No. [**] and any patent application having claims covering\n         the subject matter of such M.I.T. Case No.\n\n4.       M.I.T. Case No. [**] and any patent application having claims covering\n         the subject matter of such M.I.T. Case No.\n\n\nII.      International (non-U.S.) Patents and Applications\n\n\n                                     - 25 -\n\n<\/font>                                   APPENDIX B\n\n              List of Countries (excluding United States) for which\n       PATENT RIGHTS Applications Will Be Filed, Prosecuted and Maintained\n\n                  [To be determined between COMPANY and M.I.T.]\n\n\n                                     - 26 -\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n                                   APPENDIX D\n\n                                     WAIVER\n\n         For good and valuable consideration, including the grant of a license\nto Akamai Technologies ('COMPANY'), the undersigned, [**] hereby releases all\nrights, title and interest he, his heirs, and assigns may have as an\ninventor\/author under M.I.T.'s Guide to the Ownership, Distribution and\nCommercial Development of M.I.T. Technology, as that policy may be amended from\ntime to time, to receive his inventor's share of M.I.T.'s institutional equity\nreceived in partial consideration for a License to:\n\n         M.I.T. Case No. [**]\n\n         M.I.T. Case No. [**]\n\n         M.I.T. Case No. [**]\n\nto Akamai Technologies.\n\nWitness: \/s\/ Susan Wellsy                            Signed: \/s\/ [**]\n\n                                                     Name: [**]\n\n                                                     Date: 9\/21\/98\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n                          CONFLICT AVOIDANCE STATEMENT\n\n                           Name: [**]\n\n                           Dept. or Lab: Math Dept. &amp; LCS\n\n                           Company: Akamai Technologies\n\n                           Address: [**]\n\n                           [**]\n\n                           Licensed Technology: MIT Case Nos:\n\n                           [**]\n\n\nBecause of the M.I.T. license granted to the above company and my equity*\nposition and continuing relationship with this firm, I acknowledge the potential\nfor a possible conflict of interest between the performance of research at\nM.I.T. and my contractual or other obligations to this firm. Therefore, I will\nnot:\n\n                  1)       use students at M.I.T. for research and development\n                           projects for the company;\n\n                  2)       restrict or delay access to information from my\n                           M.I.T. research; or\n\n                  3)       take direct or indirect research support from the\n                           company in order to support my activities at M.I.T.\n\nIn addition, in order to avoid the appearance of a conflict, I will attempt to\ndifferentiate clearly between the intellectual directions of my M.I.T. research\nand my contributions to the firm. To that end, I will expressly inform my\ndepartment head annually of the general nature of my activities on behalf of the\nfirm.\n\n                  Signed:  \/s\/ [**]\n\n                  Date: 9\/2\/98\n\n*'Equity' includes stock, options, warrants or other financial instruments\nconvertible into Equity, which are directly or indirectly controlled by the\ninventor.\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n                                   APPENDIX D\n\n                                     WAIVER\n\n         For good and valuable consideration, including the grant of a license\nto Akamai Technologies ('COMPANY'), the undersigned, [**] hereby releases all\nrights, title and interest he, his heirs, and assigns may have as an\ninventor\/author under MIT.'s Guide to the Ownership, Distribution and Commercial\nDevelopment of M.I.T. Technology, as that policy may be amended from time to\ntime, to receive his inventor's share of M.I.T.'s institutional equity received\nin partial consideration for a License to:\n\n         MIT. Case No. [**]\n\n         MIT. Case No. [**]\n\nto Akamai Technologies\n\n\nWitness: \/s\/ [Illegible]                          Signed: \/s\/ [**]\n\n                                                  Name: [**]\n\n                                                  Date: 10\/21\/98\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n                          CONFLICT AVOIDANCE STATEMENT\n\n\n                           Name: [**]\n\n                           Dept. or Lab: EECS\n\n                           Company: Akamai Technologies\n\n                           Address:__________________________________\n\n                           __________________________________________\n\n                           Licensed Technology: M.I.T. Case Nos.\n\n                           [**]\n\n                           __________________________________________\n\nBecause of the M.I.T. license granted to the above company and my equity*\nposition and continuing relationship with this firm, I acknowledge the potential\nfor a possible conflict of interest between the performance of research at\nM.I.T. and my contractual or other obligations to this firm. Therefore, I will\nnot:\n\n                  1)       use students at M.I.T. for research and development\n                           projects for the company;\n\n                  2)       restrict or delay access to information from my\n                           M.I.T. research; or\n\n                  3)       take direct or indirect research support from the\n                           company in order to support my activities at M.I.T.\n\nIn addition, in order to avoid the appearance of a conflict, I will attempt to\ndifferentiate clearly between the intellectual directions of my M.I.T. research\nand my contributions to the firm. To that end, I will expressly inform my\ndepartment head annually of the general nature of my activities on behalf of the\nfirm.\n\n                  Signed: \/s\/ [**]\n\n                  Date: 10\/19\/98\n\n*'Equity' includes stock, options, warrants or other financial instruments\nconvertible into Equity, which are directly or indirectly controlled by the\ninventor.\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n                                   ASSIGNMENT\n\n         This Assignment, effective as of the date set forth above the\nsignatures of the parties below (the 'EFFECTIVE DATE'), is between AKAMAI\nTECHNOLOGIES ('ASSIGNOR'), a Delaware corporation, with a principal place of\nbusiness at 205 Hampshire Street, Cambridge, MA 02139, and the Massachusetts\nInstitute of Technology ('ASSIGNEE'), a Massachusetts corporation, with a\nprincipal place of business at 77 Massachusetts Avenue, Cambridge, MA\n02139-4307.\n\n         WHEREAS, M.I.T.'s 'Waiver of M.I.T. Ownership Rights' of September 8,\n1998 waived to F.T. Leighton any rights it may have to the invention described\nin United State Provisional Patent Application No. [**] and entitled [**], ('the\nInvention') because the Invention was developed without sponsored research funds\nand without significant use of M.I.T. facilities or funds;\n\n         WHEREAS, [**] and certain other inventors have assigned their entire\nright, title and interest relating to the Invention to AKAMAI TECHNOLOGIES;\n\n         WHEREAS, ASSIGNOR is an owner by assignment of the Invention, and has\nthe right to assign all of its rights to ASSIGNEE;\n\n         WHEREAS, ASSIGNOR hereby desires to assign its entire right, title and\ninterest in the Invention to ASSIGNEE;\n\n         NOW, THEREFORE, in consideration of the foregoing said agreements, and\nof other good and valuable consideration, the receipt of which is hereby\nacknowledged, ASSIGNOR intending to be legally bound, does hereby sell, assign\nand transfer to the ASSIGNEE, its successors and assigns, its entire right,\ntitle and interest in the Invention [**], for the United States of America, its\nterritories and possessions, and for all foreign countries, in said Invention,\nincluding all patent applications, all divisions and continuations thereof, all\nrights to claim priority based thereon, all rights to file foreign applications\nof said Invention, and all Letters Patents and reissues thereof, issuing for\nsaid Invention, in the United States of America and in any and all foreign\ncountries.\n\n          Confidential Materials omitted and filed separately with the\n          Securities and Exchange Commission. Asterisk denote omission.\n\n\n         It is agreed that ASSIGNOR shall be legally bound, upon reasonable\nrequest of the ASSIGNEE or its successors or assigns or a legal representative\nthereof, to execute all instruments proper to patent and maintain the Invention\nin the United States of America and all foreign countries in the name of the\nASSIGNEE and to execute all instruments proper to carry out the intent of this\ninstrument.\n\n         ASSIGNOR hereby covenants that no assignment, sale, agreement or\nencumbrance has been or will be made or entered into which would conflict with\nthis Assignment.\n\n         ASSIGNOR hereby authorizes and requests the Commissioner of Patents and\nTrademarks to issue any and all such United States Letters Patent to ASSIGNEE,\nits successors and assigns, as the owner of all right, title and interest\ntherein.\n\n         IN WITNESS WHEREOF, the parties have caused this Agreement to be\nexecuted by their duly authorized representatives.\n\nTHE EFFECTIVE DATE OF THIS AGREEMENT IS OCTOBER 26, 1998\n\nMASSACHUSETTS INSTITUTE OF                        AKAMAI TECHNOLOGIES\nTECHNOLOGY\n\n\nBy:    \/s\/ Lita Nelsen                            By:    \/s\/ Daniel Lewin\nName:  Lita L. Nelsen, Director                   Name:  Daniel Lewin\nTitle: Technology Licensing Office                Title: President\n\n\nAcknowledged by: \/s\/ [**]\n                     [**]\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6606],"corporate_contracts_industries":[],"corporate_contracts_types":[9613,9616],"class_list":["post-42297","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-akamai-technologies-inc","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42297","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42297"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42297"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42297"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42297"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}