Master Purchase Agreement for OEM Manufacturers

PURCHASE OFFER AGREEMENT FOR OEM MANUFACTURER









Customer: Agreement #: JV1201





Mercury Computer Systems, Inc. Date: February 16, 1995 199 Riverneck Road Chelmsford, MA 01824-2820





Thank you for doing business with IBM Microelectronics Division. This is a master purchase offer agreement between you, the buyer, and us, International Business Machines Corporation. You sign this Agreement only once after that, this Agreement wil l govern your purchases of eligible IBM products (Products) from us on an ongoing basis. Your IBM sales representative can give you a list of the eligible IBM Products. You may order Products under this Agreement by sending us a written request or by fax. If we can fill your order, we will send you an acknowledgment, referencing this Agreement, for the Products IBM will ship to you. We will provide Products under IBM's then current prices, charges, and warranty periods, unless otherwise negotiated between us. Your IBM sales representative can also give you information about IBM's prices, charges, and warranty periods.



This Agreement, its front and back, and any acknowledgment IBM issues under it, together called POA, are the complete agreement on this subje ct and replace all prior oral or written communications between us about it. The POA cannot be changed unless each of us signs a written modification.





Agreed to: for and on behalf of

MERCURY COMPUTER SYSTEM INC.





Signed: /s/ Rebecca M. Dowse

----------------------------

Print Name: Rebecca M. Dowse

Manager of Contracts





Agreed to:

INTERNATIONAL BUSINESS

MACHINES CORPORATION







Microelectronics Division











CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE

SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.









Signed: /s/ Frederick J. Glasgow

----------------------------





Print Name: Frederick J. Glasgow

Director of Marketing

and Sales Operations





1. USE OF PRODUCTS



You represent that Products will be: A) integrated or incorporated in your systems or Subsystems or as specified by IBM in an acknowledgment: or B) distributed in incidental additional quantities for integration or incorporation in systems or subsystems you have sold. You may also use up to 10% of the Products internally.



2. SHIPMENT, TITLE, AND RISK OF LOSS



IBM Will Schedule each Product under IBM's applicable shipment schedule. We may not ship Product if you cannot give us satisfactory assurances that you have complied and can comply with any of the POA terms, including payment and use of Pro ducts. Title to and risk of loss for a Product Pass to you when we deliver the Product to the carrier. IBM keeps title to any software or other code under the POA.



3. PRICES, INVOICING, PAYMENT TERMS AND TAXES



The prices Shown in Exhibit A hereto w ill apply to the Products.[*] We will invoice you for the Products, including related taxes and any other charges under this POA. Terms of payment are [*]. You will also pay a late charge of [*] of the balance due for each month you are late in paying IBM .



4. CANCELLATION



You may cancel an order before we ship it. If you do so at your convenience, for standard Product you shall pay the following charges unless otherwise mutually negotiated.



Days before Acknowledged Shipment Dates Percent of Purchase Price



90 days or more [*] 60-89 days [*] 30-59 days [*] 0-29 days [*]









* Information omitted for confidential treatment.









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Charges for the cancellation of customized Product will be mutually negotiated and set forth in Exhibit A hereto.



5. CHANGES



It is our objective to fill an order acknowledged by us. In situations suc h as supply constraints, we may not be able to fill your order; we will inform you of this, and you may cancel the order without charge. We may withdraw a Product from the list on 60 days' notice. We may change a Product's specifications at any time. Cust omer's prior approval is required for any change which affects the form, fit, function, or reliability of a Product.



6. MANUALS AND DISKETTES



You can modify manuals and diskettes we provide under this POA as needed to support your use of Products. D istributed manuals and diskettes must not include anything that suggests we are the source of the manuals or diskettes or Products. You can distribute modified manuals and diskettes only for use with Products. You must make diskettes available subject to a license agreement acceptable to us. You must include a copyright notice in distributed manuals and diskettes. The copyright notice must comply with the copyright law and must identify the owner as you "and others". You must also include a U.S. Government user Restricted Rights notice.



7. PATENTS AND COPYRIGHTS



If a third party claims that a Product we provide under this POA infringes that party's patent or copyright, we will defend you against that claim at our expense and pay all costs, damages, a nd attorney's fees that a court finally awards, provided that you: 1) promptly notify us in writing of the claim: and 2) allow us to control, and cooperate with us in, the defense and any related settlement negotiations. If such a claim is made or appears likely to be made, about a Product in your inventory, you agree to permit us to either enable you to continue to market and use the Product, or to modify and replace it. If IBM determines that none of these alternatives is reasonably available, you will r eturn the Product to us on our written request for an appropriate credit or refund as IBM decides. This is IBM's entire obligation to you regarding any claim of infringement.



IBM has no obligation regarding any claim based on any of the following: A) modif ication of a Product by you or at your direction or its use in other than its specified operating environment; B) the combination, operation, or use of a Product with any product, data, or apparatus that IBM did not provide; or C) infringement by a non-IB M Product alone, as opposed to its combination as part of a system of Products that IBM provides.





8. LIMITED WARRANTIES











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IBM warrants a Product to be free from defects in material and workmanship, in the U.S.A., for one year from the date of shipment.



Products shipped outside of the U.S.A., samples, prototypes, and test vehicles, and any IBM services provided under this POA are AS IS. IBM manufactures Products from new or serviceable used parts. Exchanged parts become the property of IBM.



If you believe that a Product is not as warranted, you will: A) promptly notify us in writing; B) at our request, return the Product frei ght prepaid to our designated location. If IBM decides the Product does not meet its warranty, we will, at our option, repair or replace the Product, or issue a credit or refund of the purchase price. This warranty will not include credit, repair, or repl acement of a Product which has a defect due to your, or another's, actions or omissions.



THE FOREGOING WARRANTIES REPLACE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR USE FOR A PARTICULAR PURPOSE.



9. LIABILITIES



Circumstances may arise where, because of a default or other liability, you are entitled to recover damages from us. In each such instance, regardless of the basis on which damages can be claimed, the following terms apply. IBM is responsible for: 1) payments referred to in our patent and copyright terms described above; and 2) bodily injury (including death), and damage to real property and tangible personal property caused by the Product; and 3) the amount of any other actual loss or damage, up to the greater of $100,000 or the charge for the Product subject to the claim.



Under no circumstances is IBM liable for any of the following: A) third-party claims against you for losses or damages other than those in items 1) and 2), in this Section 9; B) loss of, or damage to your or another's records or data; or C) economic consequential damages (including lost profits or savings) or incidental damages, even if we are informed of their possibility.



10. SOFTWARE



If IBM provides you software or other code ("software") under this POA, the software will be subject ...