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EXHIBIT 10.3
Mentor Graphics Corporation
0000 XX Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxx 00000-0000
CUSTOMER AGREEMENT
Agreement No. MA4159 Effective Date: June 30, 1997
------
Customer: SUMMA FOUR, INC.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
This Customer Agreement (Agreement) governs the sale and licensing of products
and services to Customer by Mentor Graphics Corporation (Mentor Graphics).
The parties agree as follows:
1. SCOPE OF AGREEMENT. Mentor Graphics will license Software and provide
documentation and services to Customer as described in this Agreement, which
includes the attachments agreed upon by the parties (Attachments). References to
"Software" shall include Mentor Graphics' standard software products and any
other software that Mentor Graphics licenses to Customer.
2. ORDERS. If Customer elects to order products or services on an ongoing
basis, Customer will issue written purchase orders that refer to this Agreement
by number. Customer is not obligated to order products or services, and Mentor
Graphics is not obligated to accept purchase orders. If Customer issues a
purchase order that Mentor Graphics accepts (Order), the Order will constitute a
contract between the parties, which shall be governed solely and exclusively by
the terms and conditions of this Agreement even if Customer does not refer to
this Agreement on the Order. Any terms or conditions appearing on an Order that
add to or conflict with this Agreement will not be effective unless an
authorized representative of Mentor Graphics specifically agrees to them in
writing.
3. PRICES AND TERMS. Customer will pay amounts invoiced under this
Agreement, for products compliant with a quotation under which an Order is
placed, in U.S. dollars within 30 days after the date of invoice. The prices
that apply to any transaction will be those on a valid quotation that Mentor
Graphics has given to Customer, or, if no valid quotation exists, those on
Mentor Graphics' applicable price list in effect when Customer places the Order.
Prices do not include freight, insurance, customs duties, or other similar
charges, which Mentor Graphics will invoice separately. Unless Customer provides
Mentor Graphics with a certificate of exemption from the applicable taxing
authority, Mentor Graphics will invoice all applicable taxes separately.
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4. SHIPPING AND DELIVERY. All Orders shall request shipment within six
months of the date of the Order. All products are delivered FOB point of
shipment. Mentor Graphics will use reasonable efforts to ship on or before the
shipping dates requested on the Order, provided that the requested dates conform
to the estimated lead times quoted by Mentor Graphics.
5. RESCHEDULING AND CANCELLATION. Customer may request that shipments be
rescheduled or canceled by sending a written notice that is received by Mentor
Graphics at least ten business days prior to shipment. Customer will not
reschedule a shipment to a date more than six months after the date of the
original Order. If Customer cancels a shipment, Customer will pay a cancellation
charge of 5% of the price of each product canceled.
6. SOFTWARE LICENSE.
6.1 Each license that Mentor Graphics grants to Customer is a
fully-paid perpetual nonexclusive, nontransferable license to use the Software
solely: (a) in machine-readable, object-code form; (b) for Customer's internal
business purposes; and (c) on the computer hardware equipment and at the site(s)
that Mentor Graphics designates. Customer will use floating-licensed Software
only within a single site. As used in this Agreement, "site" means a logically
connected network of computer work stations located within a one-half mile
radius on which Software may be used and to which Mentor Graphics assigns a site
number. Customer is not entitled to receipt or use of the source code for any
Software. Mentor Graphics or its licensors will continue to own all Software
that Mentor Graphics licenses to Customer.
6.2 Customer may copy Software only as reasonably necessary to support
an authorized use. Customer will include on each copy that it makes all notices
and legends embedded in Software and affixed to its medium and container as
received from Mentor Graphics. All copies of Software, whether provided by
Mentor Graphics or made by Customer, shall remain the property of Mentor
Graphics or its licensors. Customer will maintain a record of the number and
location of all copies of Software that it makes, including Software that has
been merged with other software, and will make those records available to Mentor
Graphics upon request.
6.3 All Software constitutes or contains trade secrets and confidential
information of Mentor Graphics or its licensors. Customer shall not make
Software available in any form to any person other than Customer's employees or
contractors, excluding Mentor Graphics' competitors, whose job performance
requires such access. Customer shall take appropriate action to protect the
confidentiality of Software and insure that any person permitted access to
Software does not disclose it or use it except as permitted by this Agreement.
Customer shall not reverse assemble, reverse compile, or otherwise reverse
engineer Software, in whole or in part.
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6.4 Any Software that Mentor Graphics provides to Customer shall be
subject to the above license restrictions. The provisions of this section 6
shall survive termination of this Agreement.
7. LIMITED WARRANTY.
7.1 Mentor Graphics warrants that during the warranty period its
standard, generally supported Software products, when properly installed, will
substantially conform to the functional specifications set forth in the
applicable user manual. Mentor Graphics does not warrant that Software will meet
Customer's requirements or that operation of the Software will be uninterrupted
or error free. The warranty period is 90 days starting on the 15th day after
delivery or upon installation, whichever first occurs. Customer must notify
Mentor Graphics in writing of any nonconformity within the warranty period.
MENTOR GRAPHICS' ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY SHALL BE FOR
MENTOR GRAPHICS TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT ANY
NONCONFORMITY REPORTED BY CUSTOMER DURING THE WARRANTY PERIOD. MENTOR GRAPHICS
DOES NOT WARRANT THAT THESE EFFORTS WILL CORRECT THE NONCONFORMITY.
7.2 This warranty shall not be valid if the Software has been subject
to abuse, misuse, accident, alteration, neglect, or unauthorized modification or
installation.
7.3 MENTOR GRAPHICS MAKES NO WARRANTY WITH RESPECT TO SERVICES. ALL
SERVICES ARE PROVIDED "AS IS."
7.4 MENTOR GRAPHICS MAKES NO WARRANTY WITH RESPECT TO ANY PRODUCT THAT
MENTOR GRAPHICS PROVIDES TO CUSTOMER EXCEPT MENTOR GRAPHICS' STANDARD, GENERALLY
SUPPORTED SOFTWARE PRODUCTS. For third party products, however, Mentor Graphics
will transfer to Customer any warranty from the original manufacturer or
licensor that Mentor Graphics is allowed to transfer.
7.5 THE WARRANTIES SET FORTH IN THIS SECTION 7 ARE EXCLUSIVE AND MENTOR
GRAPHICS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE
SOFTWARE, SERVICES OR OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT. MENTOR
GRAPHICS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITED SUPPORT. Mentor Graphics has no obligation, other than the
above limited warranty obligations, to support any products except as may be
specifically agreed in writing by Mentor Graphics in a separate agreement or in
an Attachment to this Agreement.
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9. INFRINGEMENT.
9.1 Subject to sections 9.2 and 9.3 below, Mentor Graphics will defend
or settle, at its option and expense, any action brought against Customer
alleging that any Software product furnished by Mentor Graphics under this
Agreement infringes a United States patent or copyright. Mentor Graphics will
pay any costs and damages finally awarded against Customer that are attributable
to the claim, provided that Customer (a) notifies Mentor Graphics promptly in
writing of the action; (b) provides Mentor Graphics all reasonable information
and assistance to settle or defend the claim; and (c) grants Mentor Graphics
sole authority and control of the defense or settlement of the claim.
9.2 In lieu of the provisions of section 9.1, if an infringement claim
is made, Mentor Graphics may, at its option and expense, either (a) replace or
modify the Software product so that it becomes noninfringing or (b) procure for
Customer the right to continue using the Software product. If Mentor Graphics
determines that neither of those alternatives is financially practical or
otherwise reasonably available, Mentor Graphics may require the return of the
Software product and refund to Customer the license fee paid, less a reasonable
allowance for use.
9.3 Mentor Graphics has no liability to Customer if the alleged
infringement is based upon: (a) the combination of the Software product with any
product not furnished by Mentor Graphics; (b) the modification of the Software
product other than by Mentor Graphics; (c) the use of other than a current
unaltered release of a Software product; (d) the use of the Software product as
part of an infringing process; or (e) a product that Customer designs or
markets. Mentor Graphics has no liability for the alleged infringement by any
product that is not generally available from and supported by Mentor Graphics at
the time Customer acquires the product.
9.4 THIS SECTION 9 STATES MENTOR GRAPHICS' ENTIRE LIABILITY AND
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED PATENT OR
COPYRIGHT INFRINGEMENT BY ANY PRODUCT.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL MENTOR GRAPHICS BE LIABLE
FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF
PROFITS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, REGARDLESS
OF WHETHER IT HAS BEEN ADVISED OF SUCH DAMAGES. IN NO EVENT SHALL MENTOR
GRAPHICS' LIABILITY UNDER THIS AGREEMENT EXCEED THE PRICE OF THE PRODUCT OR
SERVICE GIVING RISE TO THE CLAIM.
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11. LIFE ENDANGERING APPLICATIONS. The products provided under this
Agreement are not designed, made, or intended for use in any application where
the failure or inaccuracy of the products might cause death or personal injury.
Customer agrees that neither Mentor Graphics nor its suppliers or licensors
shall be liable, in whole or in part, for any claims or damages arising out of
or in connection with the use and performance of products in such applications.
If Customer uses products for such applications, Customer will indemnify and
hold harmless Mentor Graphics, its suppliers and its licensors from any claims,
loss, cost, damage, expense, or liability, including attorneys' fees, arising
out of or in connection with the use and performance of products in such
applications.
12. SUBSIDIARIES. For purposes of this section 12, a "Subsidiary" shall
mean any corporation more than 50% owned by Customer listed in Attachment A. Any
Subsidiary may place purchase orders under this Agreement, provided that the
Subsidiary agrees to be bound by all the terms and conditions of this Agreement.
A foreign Subsidiary shall place purchase orders with the Mentor Graphics
affiliate responsible for that Subsidiary. The Mentor Graphics affiliate may
alter the terms and conditions of this Agreement for a particular transaction as
necessary to reflect its local laws, business practices and customs. The
affiliate may also, at its option, refer a foreign Subsidiary to an independent
distributor. This Agreement does not apply to transactions with Mentor Graphics'
distributors.
13. TERM AND TERMINATION. This Agreement shall remain in effect until
terminated as described below.
13.1 Customer acknowledges that this Agreement may not apply to future
business products and models.
13.2 Either party may terminate this Agreement at any time upon 30 days
written notice if the other party is in material breach of this Agreement and
fails to cure the breach within the 30 day notice period.
13.3 Except as described below, termination of this Agreement or any
Attachment will not affect (a) any licenses Mentor Graphics grants before the
termination, (b) Customer's obligation to pay for products shipped and services
provided before the termination, (c) Customer's obligation to comply with the
provisions under section 6 above, and (d) any Mentor Graphics obligation which
Customer has paid for in accordance with an Attachment.
13.4 Mentor Graphics may terminate any Software license granted under
this Agreement immediately upon written notice if Customer exceeds the scope of
the license granted under section 6 or otherwise fails to comply with the
provisions under Section 6. Otherwise, Mentor Graphics may terminate the license
only if Customer fails to pay for the license when due and such failure
continues for a period of 30 days after written
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notice from Mentor Graphics. Upon termination of any license under this
Agreement, Customer shall cease all use of the Software covered by the license
and return to Mentor Graphics or certify deletion and destruction of the
Software covered by the license, including all copies.
14. SOFTWARE LOANS. Mentor Graphics may from time to time, at its sole
discretion, lend Software to Customer. Mentor Graphics will not require an Order
for loans that are at no charge. Mentor Graphics is not obligated to lend any
Software to Customer. All loans will be subject to the terms and conditions of
this section 14.
14.1 For each loan Mentor Graphics will identify in writing to Customer
the Software loaned and the term of the loan. The writing may be in the form of
an electronic communication.
14.2 Mentor Graphics will grant Customer a nonexclusive,
nontransferable, temporary license to use loaned Software for the term of the
loan. The temporary license shall be subject to the restrictions of section 6.
14.3 Customer shall return to Mentor Graphics or delete and destroy
loaned Software on or before the expiration of the loan.
14.4 REGARDLESS OF ANY OTHER PROVISION OF THIS AGREEMENT, CUSTOMER
AGREES THAT LOANED SOFTWARE IS PROVIDED "AS IS" AND MENTOR GRAPHICS MAKES NO
WARRANTIES WITH RESPECT TO LOANED SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
15. ADMINISTRATION. Each party assigns a person to administer this
Agreement. The administrators are:
For Mentor Graphics:
Director of Contracts
Mentor Graphics Corporation
0000 XX Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxx 00000-0000
For Customer:
------------------------------
Summa Four, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000-0000
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If no administrator is listed for Customer, Customer's administrator shall be
the person who signs this Agreement, at the address specified above. Each party
may change its administrator upon written notice.
16. NONDISCLOSURE. In addition to Mentor Graphics' rights under section 6,
the parties shall sign a confidentiality agreement if any additional
confidential information will be disclosed by either party pursuant to this
Agreement. Neither party will disclose the content of this Agreement to any
third party.
17. DOCUMENTS INCLUDED. The following Attachments are included as part of
this Agreement from the effective date of this Agreement, if the Attachments are
signed by authorized representatives of the parties:
(Check all that apply)
[ ] Attachment A Subsidiaries
[X] Attachment B Software Support
[X] Attachment C Professional Services
The parties may add or delete Attachments at any time by mutual written
agreement.
18. GENERAL PROVISIONS.
18.1 ENTIRE AGREEMENT; AMENDMENT. This document, including the
Attachments, contains the entire understanding between the parties relating to
its subject matter and supersedes all prior or contemporaneous agreements
between the parties relating to the subject matter, written or oral. This
Agreement may not be changed except by a written document signed by an
authorized representative of each party.
18.2 EXPORT. Customer understands that Mentor Graphics is subject to
regulation by United States government agencies, which prohibit export or
diversion of products, information about the products, and direct products of
the products to certain countries and certain persons. Regardless of any
disclosure Customer makes to Mentor Graphics of an ultimate destination of the
products or direct products of the products, Customer warrants that it will not
export in any manner, either directly or indirectly, any product or direct
product of a product, without first obtaining all necessary approval from
appropriate United States government agencies. Customer acknowledges that the
regulation of product export is in continuous modification by the United States
Congress and administrative agencies. Customer agrees to complete all documents
and to meet all requirements arising out of such modifications.
18.3 NOTICE. All notices required or authorized under this Agreement
must be in writing and shall refer to this Agreement by number. Notices shall be
effective upon delivery if delivered in person or upon mailing if mailed at a
U.S. post office, first class
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mail, postage prepaid, addressed or delivered to the other party's administrator
at the address stated above, or at such other address as either party provides
by advance written notice to the other party.
18.4 WAIVER. No term of this Agreement shall be considered waived and
no breach excused by either party unless made in writing. No consent, waiver, or
excuse by either party, express or implied, shall constitute a subsequent
consent, waiver or excuse.
18.5 DELAY. Neither party shall be responsible for failure to perform
or deliver or for a delay in performance or delivery where the failure or delay
results from causes beyond a party's reasonable control.
18.6 SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be void, invalid, unenforceable or illegal,
such provision shall be severed from this Agreement and the remaining provisions
will remain in force and effect.
18.7 ASSIGNMENT OF THE AGREEMENT. Mentor Graphics may delegate,
subcontract or assign any of its duties under this Agreement to third parties,
but no such delegation, subcontract or assignment shall relieve Mentor Graphics
of its obligations under this Agreement without Customer's prior written
consent. This Agreement and the rights and duties under it may not be
sublicensed, assigned or otherwise transferred by Customer without Mentor
Graphics' prior written consent, except for an assignment by operation of law as
a result of a merger or other corporate reorganization of Customer for which
Customer shall provide written notification.
18.8 TRANSFER OF SOFTWARE LICENSES. Within the United States the fee,
for each approved transfer subject to section 18.7 above, is $1,500 per
transaction.
18.9 CONTROLLING LAW. This Agreement shall be governed by and construed
under the laws of the state of Oregon.
CUSTOMER MENTOR GRAPHICS CORPORATION
By /s/ Xxxx Xxxx By /s/ Xxxxxxxx Xxxxxxx
------------------------------- --------------------------------
(Authorized Representative) (Authorized Representative)
Name Xxxx Xxxx Name Xxxxxxxx Xxxxxxx
------------------------------ ------------------------------
(Type or Print) (Type or Print)
Title VP Engineering Title Corporate Contracts Manager
----------------------------- -----------------------------
Date 6/27/97 Date 6-26-97
------------------------------ ------------------------------
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ATTACHMENT B
SOFTWARE SUPPORT
This Attachment B is attached to and made a part of Mentor Graphics Customer
Agreement No. MA4159 (Agreement) between Mentor Graphics and the following
Customer and is effective as of the date it is signed below by authorized
representatives of both parties:
Customer: SUMMA FOUR, INC.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
CUSTOMER MENTOR GRAPHICS CORPORATION
By /s/ Xxxx Xxxx By /s/ Xxxxxxxx Xxxxxxx
------------------------------- --------------------------------
(Authorized Representative) (Authorized Representative)
Name Xxxx Xxxx Name Xxxxxxxx Xxxxxxx
------------------------------ ------------------------------
(Type or Print) (Type or Print)
Title VP Engineering Title Corporate Contracts Manager
----------------------------- -----------------------------
Date 6/27/97 Date 6-26-97
------------------------------ ------------------------------
The parties agree as follows:
1. SUPPORT. Pursuant to the terms of the Agreement and this Attachment B
Mentor Graphics will provide the Software support services identified in an
Order. All Orders for support shall be issued for a minimum term of one year.
2. TECHNICAL COORDINATOR. Customer will provide Mentor Graphics with the
name, address and telephone number of a technical coordinator and alternate for
each site covered by the Order. The technical coordinator and alternate must
have a working knowledge of the Software products. Customer will immediately
notify Mentor Graphics of any changes in the name, address or telephone number
of the technical coordinator or alternate.
3. TECHNICAL SUPPORT. To the extent Customer has ordered Software support
services that include technical support, Mentor Graphics will provide technical
support described in this section 3 after Customer reports a Software problem to
Mentor Graphics' support center.
3.1 Mentor Graphics' obligations to provide technical support are to
use reasonable efforts to correct any Software errors or provide work-around
solutions. As
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needed and applicable, Mentor Graphics' technical support will consist of
providing Customer with technical advice or shipping Customer any replacement or
modified Software. Specific support levels, hours of support availability, any
response options, and any technical support options or guidelines are described
in Mentor Graphics' current price list or other published support documentation.
3.2 "Technical Support Location" or "TSL" means the combination of all
groups within Customer that share licenses as authorized under the licensing
terms of section 6 of the Agreement or routinely share internal support
mechanisms such as Customer-operated help desks. Customer-operated help desks
are considered part of the TSL they support. Customer will properly identify all
licenses within each TSL designated. The combination of groups and licenses that
form a TSL is subject to Mentor Graphics' approval.
3.3 Customer may order only one configuration of offerings per TSL and
such configuration will apply to all Software within the applicable TSL. Only
Customer's employees or contractors who use Software licenses that are covered
by an Order for technical support may contact Mentor Graphics for support
services. Such employees or contractors must provide the applicable site number
to Mentor Graphics when placing a support call. If Customer is notified by
Mentor Graphics or otherwise learns of non-compliance with this section 3.3,
Customer will immediately instruct its employees or contractors who are not in
compliance to cease contacting Mentor Graphics for technical support unless or
until the appropriate Order is placed. Customer represents that it understands
and will comply with Mentor Graphics' then current published technical support
guidelines.
4. SOFTWARE UPDATES. To the extent Customer has ordered Software support
services that include Software updates, Customer shall receive for each
supported site one copy of each applicable Software update, if any, that Mentor
Graphics releases during the support term. All Software updates are subject to
the licensing terms of section 6 of the Agreement. Third party operating system
software may require upgrading in order to execute the new Software update.
Mentor Graphics is not required to alter or upgrade third party operating system
software to support new Software updates.
5. LIMITATIONS.
5.1 Mentor Graphics reserves the right to decline to support any
Software product that has not been on continuous support or has been modified by
Customer or a third party without Mentor Graphics' prior written consent. If
Mentor Graphics decides to support such a Software product, Customer will be
responsible for paying Mentor Graphics' current standard charges to restore the
product to a condition or version acceptable to Mentor Graphics prior to Mentor
Graphics starting support service.
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5.2 To enable Mentor Graphics to respond to certain Software problems,
Mentor Graphics may need Customer to furnish Mentor Graphics with a test case
and sufficient documentation to allow recreation of the Software problem. At
Customer's request, Mentor Graphics will sign a mutually acceptable
confidentiality agreement regarding the test case and documentation.
5.3 Software support service does not include: (a) services connected
with the installation, configuration, relocation or reconfiguration of Software;
(b) supplies, accessories or media; (c) maintenance or support of operating
system software; (d) service resulting from: (i) neglect, misuse or accidental
damage of the Software; (ii) modifications, corrections or workarounds performed
by a person not authorized by Mentor Graphics; and (iii) the use of the Software
with computer hardware, supplies or materials which do not meet Mentor Graphics'
specifications; (e) the support of software developed by Customer, developed by
Mentor Graphics at Customer's request or obtained from third parties; or (f) the
support of third party or other products not regularly provided or supported by
Mentor Graphics.
5.4 Mentor Graphics' software support obligations apply only to the
current and immediately prior Software release.
6. RELOCATION. Customer will provide Mentor Graphics with advance written
notice of the relocation of any Software product covered by support service. If
a proposed relocation includes a transfer of the license to another party or to
a computer or site not previously designated by Mentor Graphics for that
particular Software product, the relocation and transfer will be subject to
Mentor Graphics' prior approval which shall not be unreasonably withheld and its
current policies and charges regarding license transfers. However, in no event
shall the charges for such transfer exceed $1,500 per transaction.
7. CANCELLATION. Customer may cancel Software support services only upon
60 days prior written notice. Mentor Graphics may cancel Software support
services if Customer fails to comply with the terms and conditions of this
Attachment B or to pay for the services when due and such failure continues for
a period of 30 days after written notice from Mentor Graphics.
8. INITIAL SUPPORT ORDER. Customer's initial order is for the "BaseLine"
and "OpenLine" support offerings, a description of which is attached as Exhibit
A to this Attachment B.
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ATTACHMENT C
PROFESSIONAL SERVICES
This Attachment C is attached to and made a part of Mentor Graphics Customer
Agreement No. MA4159 (Agreement) between Mentor Graphics and the following
Customer and is effective as of the date it is signed below by authorized
representatives of both parties:
Customer: SUMMA FOUR, INC.
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
CUSTOMER MENTOR GRAPHICS CORPORATION
By /s/ Xxxx Xxxx By /s/ Xxxxxxxx Xxxxxxx
------------------------------- --------------------------------
(Authorized Representative) (Authorized Representative)
Name Xxxx Xxxx Name Xxxxxxxx Xxxxxxx
------------------------------ ------------------------------
(Type or Print) (Type or Print)
Title VP Engineering Title Corporate Contracts Manager
----------------------------- -----------------------------
Date 6/27/97 Date 6-26-97
------------------------------ ------------------------------
The parties agree as follows:
1. PROJECT OBJECTIVE AND PAYMENT. Pursuant to the terms set forth in the
Agreement and this Attachment C Mentor Graphics will perform services for
Customer as described in a statement of work (SOW) referenced in an Order.
Project objectives and the individual tasks of the parties will be described in
the SOW. For each new project, the parties will execute a new SOW. Customer will
pay Mentor Graphics all fees associated with the services that Mentor Graphics
performs.
2. OWNERSHIP.
2.1 "Intellectual Property" means all custom software and any other
ideas, inventions, whether or not patentable, U.S. and foreign patent and
related rights, U.S. and foreign copyrights, discoveries, improvements, trade
secrets, and/or know-how that Mentor Graphics develops or provides to Customer
as part of the services covered by this Attachment, whether the Intellectual
Property is developed solely by Mentor Graphics or with Customer's assistance or
resources.
2.2 Customer will own all Intellectual Property to the extent it (a)
pertains exclusively to and is physically implemented in Customer's products or
design
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environment, and (b) does not include any of Mentor Graphics' pre-existing code
or other pre-existing intellectual property, modifications or enhancements to
such pre-existing code or intellectual property, or ideas, concepts or know-how
with applicability outside Customer's design environment (Customer Intellectual
Property). Mentor Graphics will assign to Customer all of Mentor Graphics'
right, title and interest in and to Customer Intellectual Property that Customer
will own. Customer shall be the sole owner of all domestic and foreign patents,
copyright rights and other rights pertaining to such Customer Intellectual
Property, and Mentor Graphics agrees to sign all documents that Customer
reasonably determines to be necessary or convenient for use in applying for,
perfecting or enforcing patents or other rights in such Customer Intellectual
Property.
2.3 Mentor Graphics will own all Intellectual Property except for
Intellectual Property which is owned by Customer pursuant to section 2.2 above
(Mentor Graphics Intellectual Property). Customer will assign to Mentor Graphics
all of Customer's right, title and interest in and to the Mentor Graphics
Intellectual Property that Mentor Graphics will own. Mentor Graphics shall be
the sole owner of all domestic and foreign patents, copyright rights and other
rights pertaining to such Mentor Graphics Intellectual Property, and Customer
agrees to sign all documents that Mentor Graphics reasonably determines to be
necessary or convenient for use in applying for, perfecting or enforcing patents
or other rights in such Mentor Graphics Intellectual Property.
3. LICENSE.
3.1 Mentor Graphics grants to Customer a fully-paid perpetual,
royalty-free, non-exclusive, nontransferable license to any Mentor Graphics
Intellectual Property that Mentor Graphics provides to Customer pursuant to this
Attachment. The license will be subject to the provisions of section 6 of the
Agreement. If as part of such Mentor Graphics Intellectual Property Mentor
Graphics provides the source code, Customer's license to the source code will be
subject to the following additional provisions (except, however, that these
additional provisions do not apply to any code written in the AMPLE language):
Customer will use the source code only to correct software errors and enhance or
modify the Mentor Graphics Intellectual Property for Customer's internal use.
Customer shall not disclose or permit disclosure of source code, in whole or in
part, including any of its methods or concepts, to anyone except Customer's
employees with a need to know. Customer shall not copy or compile source code in
any manner except to support this authorized use. Customer shall not sell,
sublicense or otherwise transfer source code in any form or any modification or
compilation of source code, in whole or in part. If Customer attempts to use,
copy, transfer, compile or disclose source code in any manner contrary to the
provisions of this section 3.1, or in derogation of Mentor Graphics' proprietary
rights, Mentor Graphics shall have, in addition to any other remedies available
to it, the right to injunctive relief enjoining such action.
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3.2 Mentor Graphics grants to Customer a royalty-free, non-exclusive,
nontransferable license to use for Customer's internal business purposes only
any of Mentor Graphics' other Intellectual Property that Mentor Graphics
provides to Customer pursuant to this Attachment.
4. REPORTS. Any report that Mentor Graphics prepares for Customer under
this Attachment will be based on information that Mentor Graphics obtains from
Customer. Accordingly, Mentor Graphics makes no representations as to the
accuracy or completeness of such reports. Any proposals Mentor Graphics makes in
such reports are recommendations only. Statements made in such reports regarding
the results of implementation of any recommendations are guidelines and
estimates only.
5. NO SUPPORT. Unless otherwise specifically agreed in an SOW, Mentor
Graphics will have no obligation to support or maintain any Software or other
material that Mentor Graphics develops or provides pursuant to this Attachment.
6. INDEPENDENT DEVELOPMENT. Customer understands that Mentor Graphics may
have already developed or received from other parties information or material
similar to that provided by or to Customer under this Attachment or may
currently or in the future be developing information and material similar to
that provided by or to Customer. Accordingly, nothing in this Attachment shall
be construed as a representation or inference that Mentor Graphics has not or
will not develop products, for itself or for others, that compete with the
products, information, or material supplied by or to Customer under this
Attachment. Notwithstanding the above, Mentor Graphics warrants that it shall
not use any Customer Intellectual Property in any such developments described
above.
7. HIRING. During Mentor Graphics' performance of services under an SOW
and for a period of one year following completion of the project, neither party
will intentionally solicit for hire any of the other party's employees or
contractors who have performed such services for the project unless otherwise
agreed to, in writing, by the party.
8. THIRD PARTY SOFTWARE. If the work contemplated in an SOW would require
that Mentor Graphics use software licensed to Customer by a third party,
Customer shall ensure that Mentor Graphics has the right to use the third party
software on Customer's behalf. Mentor Graphics shall limit its use of such third
party software to work performed for Customer under the applicable SOW.
9. STATUS AS INDEPENDENT CONTRACTORS. The parties are independent
contractors. Neither has the authority to bind the other to any third person or
act in any way as the representative of the other, unless otherwise expressly
agreed to in writing by authorized representatives of both parties. This
Attachment in no way prohibits Mentor Graphics from performing identical or
similar services for other parties.
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10. TERMINATION. Either party may terminate the performance of any services
upon material breach of this Agreement by the other party and failure to cure
the breach within 30 days after written notice specifying the breach. Customer
will remain liable to pay Mentor Graphics for any services performed prior to
the termination. Customer shall have the right to continue using any Software
and other material previously furnished to it, subject to the terms set forth in
this Attachment and elsewhere in this Agreement.
11. DISCLOSURES. The parties have executed a Non-Disclosure Agreement
effective June 30, 1997 which is incorporated into this Attachment C by
reference.
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EFFECTIVE DATE: JUNE 30, 1997
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is between Summa Four, Inc., a Delaware Corporation, with its
principal place of business at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx,
00000-0000 (hereinafter "Summa Four") and the Company whose name and address is
set forth below (hereinafter "Company").
Company: Mentor Graphics Corporation
Street: 0000 XX Xxxxxxxx Xxxx
City: Wilsonville
State: Oregon Zip: 97070-7777
WHEREAS, Summa Four may from time to time furnish certain confidential
information to Company, and
WHEREAS, the Parties acknowledge that said confidential information is a
valuable and proprietary asset of Summa Four, and
WHEREAS, the Parties mutually agree this Agreement shall apply to any and all
disclosures made by Summa Four to Company for the period starting on the
effective date above and ending on the anniversary date three (3) years
thereafter.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
contained herein, the Parties agree as follows:
1. CONFIDENTIAL INFORMATION
For the purposes hereunder, Confidential Information shall include information
disclosed to or which becomes known by Company as a result of disclosure by
Summa Four. Confidential Information may include information about Summa Four,
its products, processes and services including, but not limited to, information
relating to physical working models and samples of the products, research,
development, patentable and unpatentable inventions, manufacturing, purchasing,
accounting, engineering, marketing, merchandising, selling, customer lists,
customer prospects, software programs, software codes, blueprints, technical
information, trade secrets or know-how or other related proprietary business
information or data, in tangible or intangible form, including observations made
by Company while on Summa Four's premises ("Confidential Information").
Confidential Information that is presented in written or other tangible form
shall be clearly and conspicuously marked as confidential. If the Confidential
Information is disclosed in an oral, visual or other intangible manner, it shall
be identified as confidential before, during or after the oral, visual or other
intangible disclosure and confirmed in writing as confidential within thirty
(30) days thereafter.
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2. NON-DISCLOSURE
Company will (a) hold all Confidential Information in confidence and, (b)
restrict dissemination of the Confidential Information only to those of its
employees on a need-to-know basis and, (c) shall not publish, disclose or
divulge any Confidential Information to any other person, firm, corporation,
association or other entity and, (d) not use the Confidential Information,
directly or indirectly, for its own benefit or for the benefit of any person,
firm, corporation, association or other entity, without Summa Four's prior
written consent. All Confidential Information disclosed in intangible form shall
be kept confidential to the same extent as if such Confidential Information were
in tangible form. Company agrees to receive and protect the Confidential
Information in accordance with the same standard of care which is applied to its
own confidential, proprietary information for a period of not less than two (2)
years from the date of Disclosure.
3. EXCLUSIONS
For the purposes of this Agreement, Confidential Information shall not be deemed
to include information which: (a) is, or becomes, public knowledge through no
wrongful act of Company, or (b) was previously or independently developed by or
known to Company without the use of Confidential Information obtained under this
Agreement, or (c) is, or becomes, lawfully available to Company from a source
other than Summa Four, or (d) is approved for release by written authorization
from Summa Four, or (e) was communicated in response to a valid order by a court
or other governmental body, was otherwise required by law, or was necessary to
establish the rights of either party under this Agreement.
4. REMEDIES
Summa Four is entitled to enforce the provisions of this Agreement by any means
allowed by law including seeking to obtain injunctive relief and/or specific
performance.
5. NO RIGHT OR LICENSE GRANTED
No rights or obligations other than those expressed herein are to be implied
from this Agreement. No license or other right is hereby granted directly or
indirectly to Company hereunder, to use in any way the Confidential Information
disclosed by Summa Four under this Agreement. Upon the expiration or termination
of this Agreement, or upon written request by Summa Four, Company shall return
or destroy, at Summa Four's option, all Confidential Information in its
possession or control.
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6. LAW AND JURISDICTION
The validity, construction, and interpretation of this Agreement and the rights
and duties of Company hereto shall be governed by and construed in accordance
with the laws of the State of New Hampshire.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by its
duly authorized representatives,
COMPANY SUMMA FOUR, INC.
Authorized Signature Authorized Signature
/s/ Xxxxxxxx Xxxxxxx /s/ Xxxx Xxxx
Name (Print or Type) Name (Print or Type)
Xxxxxxxx Xxxxxxx Xxxx Xxxx
Title Title
Corporate Contracts Manager VP Engineering
Date Date
3-31-97 6/29/97
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