EXHIBIT 10.42
OEM AGREEMENT
BETWEEN
SYNOPSYS, INC.
AND
VIEWLOGIC SYSTEMS, INC.
(FPGA)
This OEM Agreement ("Agreement") is entered into and effective this 2nd of
October, 1998 ("Effective Date") by and between Synopsys, Inc., a Delaware
corporation with principal offices at 000 X. Xxxxxxxxxxx Xxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx 00000-0000 ("Synopsys"), and Viewlogic Systems, Inc., a Delaware
corporation, with principal offices at 000 Xxxxxx Xxxx Xxxx, Xxxxxxxx XX,
00000-0000 ("OEM Partner").
RECITALS
Synopsys is a leader in the design, development and marketing of electronic
design automation software. Synopsys, desires to enter into an OEM relationship
with OEM Partner whereby OEM Partner shall be authorized to sell Synopsys' FPGA
Express product. OEM Partner wishes to enter into such a relationship.
In consideration of the mutual promises contained herein, the parties agree as
follows:
AGREEMENT
1. DEFINITIONS
1.1 "BUG FIX" means an embodiment of the Licensed Software that corrects
Errors.
1.2 "CONFIDENTIAL INFORMATION" means any information disclosed by one party
to the other pursuant to this Agreement, which is in written, graphic,
machine-readable or other tangible form and is marked "Confidential,"
"Proprietary" or in some other manner to indicate its confidential
nature. Confidential Information may also include oral information
disclosed by one party to the other pursuant to this Agreement,
provided that such information is designated as confidential at the
time of disclosure and reduced to a written summary by the disclosing
party, within thirty (30) days after its oral disclosure, which is
marked in a manner to indicate its confidential nature and delivered to
the receiving party. Notwithstanding any failure to so identify it,
however, all source code will be deemed "Confidential Information" of
Synopsys, and all information contained in the reports and document
furnished by OEM Partner to Synopsys hereunder shall be deemed
"Confidential Information" of OEM Partner hereunder. Notwithstanding
the above, Confidential Information shall not include information
which: (i) was generally known and available at the time it was
disclosed or becomes generally known and available through no fault of
the receiver; (ii) was
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known to the receiver, without restriction, at the time of disclosure
as shown by the files of the receiver in existence at the time of
disclosure; (iii) is disclosed with the prior written approval of the
discloser; (iv) was independently developed by the receiver without any
use of the Confidential Information and by employees or other agents of
the receiver who have not been exposed to the Confidential Information,
provided that the receiver can demonstrate such independent development
by documented evidence prepared contemporaneously with such independent
development; (v) becomes known to the receiver, without restriction,
from a source other than the discloser without breach of this Agreement
by the receiver and otherwise not in violation of the discloser's
rights; or (vi) is disclosed pursuant to the order or requirement of a
court, administrative agency, or other governmental body, provided,
that the receiver shall provide prompt, advance notice thereof to
enable the discloser to seek a protective order or otherwise prevent
such disclosure.
1.3 "DOCUMENTATION" means any user manuals, reference manuals, release,
application and methodology notes, written utility programs and other
materials in any form provided by Synopsys for use with the Licensed
Software.
1.4 "END USER" means the person authorized to use the Licensed Software
without the right to further distribute as an OEM or reseller.
1.5 "ERROR" means a defect which causes the Licensed Software not to
perform substantially in accordance with the specification set forth in
Synopsys' Documentation, or otherwise to produce materially erroneous
results.
1.6 "INTELLECTUAL PROPERTY RIGHTS" means all patents, patent rights,
copyrights, trade secrets, service marks, maskworks and trademarks, and
any applications for any of the foregoing, in all countries in the
world.
1.7 "LICENSED SOFTWARE" means Synopsys' FPGA synthesis product as more
fully described in Exhibit A (as may be amended from time to time)
together with all Bug Fixes and Updates and any Upgrades made available
by Synopsys hereunder. It shall consist of the core synthesis engine,
input/output file interfaces, and architecture optimizers. It shall
contain all the features and device support of Synopsys' standard FPGA
Express product. The term "Licensed Product" shall be deemed to be
synonymous with the term Licensed Software. The Licensed Software does
not include any features which are unique to FPGA Compiler II.
1.8 "RESELLER" means a distributor, original equipment manufacturer,
systems integrator or reseller who is authorized to resell or
distribute software.
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1.9 "UPDATES" means an embodiment of the Licensed Software that delivers
minor improvements, incremental features or enhancements of existing
features, and/or functionality to the Licensed Software.
1.10 "UPGRADE" means an embodiment of the Licensed Software that delivers
substantial performance improvements, architectural changes or new
features and/or functionality to the Licensed Software for which
Synopsys may charge a separate license fee.
2. OEM PARTNER'S RIGHTS TO THE LICENSED SOFTWARE
2.1 APPOINTMENT. Subject to the terms and conditions set forth in this
Agreement, Synopsys grants OEM Partner the nonexclusive,
nontransferable (except as specifically set forth herein), worldwide
right to reproduce, market, promote, sublicense, demonstrate, bundle,
and distribute the Licensed Software in object code form, and the
Documentation, in accordance with the restrictions set forth herein,
directly or indirectly, through any and all OEM Partner Resellers. OEM
Partner may distribute the Licensed Software to or through any OEM
Partner Reseller or any other entity that might integrate or
incorporate the Licensed Software with other systems, software,
hardware, or other components. OEM Partner agrees to enter into written
agreements with OEM Partner Resellers binding them to all relevant
restrictions contained herein. The parties intend that Synopsys shall
be a third party beneficiary of such agreements.
2.2 SOFTWARE LICENSE AND OTHER RESTRICTIONS.
(a) The Licensed Software is subject to license and not sale. Each
reference in this Agreement to a "purchase" or "sale" of the Licensed
Software, or like terms, shall mean a "license" of the Licensed
Software. Synopsys shall retain full title to the Licensed Software
(including all Intellectual Property Rights embodied therein) and all
copies thereof.
(b) End Users may only use the Licensed Software only in accordance with
the provisions of a license agreement substantially in the form of that
attached hereto as Exhibit C. OEM Partner will not remove or alter any
proprietary notices on or in the Licensed Software.
(c) OEM Partner agrees that the Licensed Software for the UNIX platform (i)
will only be sold into a software tool environment that includes OEM
Partner UNIX-based products. Licensed Software on the PC platform
purchased under this Agreement may be sold standalone or in combination
with other OEM Partner products. OEM Partner may sell the Licensed
Software as an add-on or synthesis upgrade to existing installed OEM
Partner customers, but not to otherwise target any marketing to
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existing installed customers of Xilinx, Inc. or any other existing or
future silicon resellers of Synopsys.
(d) OEM Partner and its Resellers shall not sell or distribute the Licensed
Software in Taiwan until the earlier of: (i) the first anniversary of
the Effective Date; or (2) the depletion by Cache Technologies of all
of its inventory of Licensed Software as of the Effective Date.
Synopsys agrees to notify OEM Partner within thirty (30) days after
becoming aware that Cache has depleted said inventory of Licensed
Software. Synopsys, in its sole discretion, may approve exceptions to
this provision deemed critical by OEM Partner on a case-by-case basis,
in writing. Notwithstanding the foregoing, OEM Partner shall be
entitled to distribute the Licensed Software to End Users in Taiwan
only for purposes of upgrading existing install-base customers from the
Aurora product to FPGA Express.
2.3 DEMONSTRATION AND EVALUATION. OEM Partner will be entitled to
distribute, itself or through OEM Partner Resellers, a time-limited
version of the Licensed Software for demonstration and evaluation
purposes at no charge. This demonstration and evaluation version will
have all of the features and functionality of the Licensed Software,
except that the use of such version will be limited to evaluation and
demonstration use and will be limited to such use for a period of not
more than seventy-five (75) days.
2.4 NO IMPLIED LICENSES. No rights or licenses are granted to OEM Partner
by implication, estoppel, or otherwise, other than the rights and
licenses expressly granted herein.
3. PAYMENTS
3.1 TERMS AND CONDITIONS. All purchases of Licensed Software by OEM Partner
from Synopsys during the term of this Agreement shall be subject to the
terms and conditions of this Agreement.
3.2 FEES. The license fees for the Licensed Software and maintenance
("Fees"), including the Minimum Purchase Commitment for each annual
Term of this Agreement, shall be as set forth in Exhibit B hereto.
Synopsys has the right at any time to revise the suggested list prices
in Exhibit B with ninety (90) days' advance written notice to OEM
Partner. Such revisions shall apply to all orders received by OEM
Partner after the effective date of revision. Fee increases shall not
affect unfulfilled purchase orders accepted by OEM Partner prior to the
effective date of the price increase. In the event of a price increase,
OEM Partner may request that Synopsys honor the previous pricing beyond
the 90-day period, on a case-by-case basis, and Synopsys shall not
unreasonably withhold its consent. To be valid, any such request and
consent must be
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in writing. Fee decreases shall apply to pending purchase orders
accepted by OEM Partner prior to the effective date of the decrease but
not yet shipped.
3.3 TAXES. Synopsys' Fees do not include any federal, state, local, or
foreign taxes that may be applicable to sales by OEM Partner of the
Licensed Software and related maintenance, and OEM Partner shall be
responsible for the same (excluding taxes based on Synopsys' net
income). When Synopsys has the legal obligation to collect such taxes,
the appropriate amount shall be added to OEM Partner's invoice and paid
by Synopsys unless OEM Partner provides Synopsys with a valid tax
exemption certificate authorized by the appropriate taxing authority.
3.4 PAYMENT. Full payment of Synopsys' Fees for the Licensed Software and
maintenance (including any taxes or other applicable costs initially
paid by Synopsys but to be borne by OEM Partner) shall be made by OEM
Partner to Synopsys in U.S. dollars within thirty (30) days after the
date of the end of each calendar quarter, as further set forth in
Exhibit B. The annual fees for the first Term of this Agreement for OEM
Partners' three (3) Distributors identified in Exhibit B, as well as
for OEM Partners university program, are also due as set forth in
Exhibit B. Any amount not paid when due shall be subject to a service
charge equal to the lesser of one and one-half percent (1.5%) per month
or the maximum amount permitted by law.
3.5 MANUFACTURING AND DISTRIBUTION. Manufacturing and distribution of the
Licensed Software and Documentation to OEM Partner's End Users shall be
the responsibility of OEM Partner. Synopsys shall provide master copies
of the Licensed Software and Documentation including available design
examples and application notes published for End Users. Unless
otherwise agreed to in writing by the parties, OEM Partner shall employ
a software license key system in connection with each copy of the
Licensed Software distributed by it. Documentation will be provided in
machine-readable form for adaptation by OEM Partner. Final OEM Partner
documentation adapted from Synopsys Documentation will acknowledge
Synopsys as the source. OEM Partner shall provide Synopsys with copies
of all Documentation for review and approval prior to distribution. OEM
Partner will use reasonable commercial efforts to provide the review
copies of the Documentation in time to allow Synopsys thirty (30) days
to review and approve or provide feedback on said Documentation.
3.6 REPORTING REQUIREMENTS. OEM Partner shall deliver quarterly reports to
Synopsys within thirty (30) days following the end of each calendar
quarter during the Term of this Agreement. These reports shall include
the number and configuration of the Licensed Software, including
additional optimizers, second language options, and maintenance or
maintenance renewal sold during the period, and End User information
described in Exhibit B. In addition, OEM Partner shall deliver a
quarterly
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statement to Synopsys together with the payment of the Fees as
described in Section 3.4 above.
3.7 AUDIT. No more than twice during any 12-month period, Synopsys may
cause an independent certified public accounting firm to audit OEM
Partner's relevant records to verify the accuracy of the Fees paid by
OEM Partner during the preceding 12-month period. OEM Partner will have
the right to review and contest the findings of the auditors. The costs
and expenses of such audit shall be borne by Synopsys, unless OEM
Partners has underpaid the relevant Fees by at least ten percent (10%),
in which case OEM Partner shall pay the costs and expenses of such
audit. Any such audit may be conducted upon reasonable notice during
regular business hours at OEM Partner's offices and in such manner as
not to significantly interfere with normal business activities at such
locations.
3.8 END USER PRICING. OEM Partner shall be free hereunder to distribute the
Licensed Software and Documentation to End Users and Resellers at any
charge or no charge, and shall not be required to use or make reference
to Synopsys' list or suggested prices.
4. LIMITED WARRANTY
4.1 LIMITED WARRANTY. Synopsys warrants for a period of ninety (90) days
from delivery of the Licensed Software to OEM Partner that such
Licensed Software, as delivered, will be free from defects in the media
and will substantially conform to the specifications in the Licensed
Software Documentation. In the event of nonconformance of the Licensed
Software, OEM Partner shall promptly notify Synopsys and provide
Synopsys with all available information in written or electronic form
so that Synopsys can reproduce the Error. Synopsys' sole obligation is
to undertake reasonable commercial efforts to correct the Errors
reported to Synopsys in writing or in electronic form during the
warranty period. SYNOPSYS' SOLE LIABILITY AND OEM PARTNER'S EXCLUSIVE
REMEDY WITH RESPECT TO BREACH OF THE FOREGOING LIMITED WARRANTY WILL BE
LIMITED TO ERROR CORRECTION OR PRODUCT REPLACEMENT, OR IF NEITHER IS IN
SYNOPSYS' REASONABLE DETERMINATION COMMERCIALLY FEASIBLE, REFUND OF THE
LICENSE FEE RECEIVED BY SYNOPSYS FROM OEM PARTNER.
4.2 HARMFUL CODE. Synopsys represents and warrants that, to its knowledge,
the Licensed Software available in production release is free from all
computer viruses, and other harmful or malicious code.
4.3 INTELLECTUAL PROPERTY. Synopsys represents and warrants that, to its
knowledge, neither the Licensed Software nor the Documentation infringe
upon the Intellectual Property
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Rights of any third party, and Licensor has not misappropriated the
Intellectual Property Rights of any third party in developing the
Licensed Software.
4.4 DISCLAIMER. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, SYNOPSYS
AND ITS LICENSORS MAKE NO OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE REGARDING THE LICENSED SOFTWARE OR DOCUMENTATION. SYNOPSYS
AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A
COURSE OF DEALING OR USAGE OF TRADE.
5. SYNOPSYS MAINTENANCE AND SUPPORT
5.1 DEMONSTRATION, ENGINEERING AND SUPPORT COPIES. OEM Partner shall be
entitled to make a reasonable number of copies (to be mutually agreed)
of the Licensed Software and Documentation pursuant to all relevant
terms and conditions of Synopsys' End User License Agreement for
demonstration, engineering and End User support purposes. These copies
of the Licensed Software may be used by OEM Partner and OEM Partner's
Resellers for such purposes at no charge.
5.2 TRAINING. Synopsys shall provide necessary training to OEM Partner
engineering and customer support personnel as reasonably required to
engineer, market, and support the Licensed Software for initial product
introduction and for each major product Update.
5.3 UPDATES AND BUG FIXES. Maintenance Agreements are required for the
first year on all new Licensed Software sold. Subsequent maintenance
renewal is optional. OEM Partner shall pay Synopsys the maintenance
fees set forth in Exhibit B. Updates and Bug Fixes shall be provided to
OEM Partner in regular maintenance releases. Maintenance releases will
be provided every six (6) months or whenever Synopsys, using reasonable
commercial efforts, issues them. Only End Users who have entered into
Maintenance Agreements may receive maintenance releases. Upgrades are
not automatically included in maintenance releases. Critical bugs (to
be defined by the parties) reported by OEM Partner will be addressed by
Synopsys' engineering support team on a high priority basis. Bug Fixes
will be delivered to OEM Partner at the earliest possible date for OEM
Partner to provide to End Users: provided, however, that Synopsys will
provide such Bug Fixes to OEM Partner when it makes them generally
available to its other resellers and OEM partners. OEM Partner will be
entitled, directly or indirectly through OEM Partner's Resellers, to
distribute Bug Fixes and Updates to each End User of OEM Partner or OEM
Partner's Reseller who is a party to a maintenance Agreement for the
same, or Bug Fixes to each such end User to whom a warranty obligation
is owed.
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5.4 EARLY NOTICE. Synopsys shall provide OEM Partner with early notice of
FPGA Express product plans and release schedules and will keep OEM
Partner apprised of its development and enhancement efforts with regard
to the Licensed Software. Synopsys will notify OEM Partner as early as
possible, but in no event later than such time as it makes such
information generally available to its other resellers and OEM
partners, of the development, testing and estimated release dates of
each Upgrade and Update. OEM Partner shall be entitled to receive
copies of all generally available beta and early release versions of
the Licensed Software.
6. OEM PARTNER SUPPORT RESPONSIBILITIES
6.1 OEM PARTNER SOFTWARE INTEGRATION. OEM Partner shall be responsible for
all integration and testing of the Licensed Software with OEM Partner's
software and Synopsys shall have no obligations related thereto.
6.2 END USER SUPPORT. End User support, and training and technical support
to OEM Partner Resellers, shall be provided by OEM Partner. At no time
shall OEM Partner direct its End Users or OEM Partner Resellers to
Synopsys' support organization. Synopsys shall designate a corporate
applications engineer as an OEM Partner point of contact, by telephone
and e-mail, for backup technical support and to assist with OEM Partner
technical concerns regarding the Licensed Software.
7. TERM AND TERMINATION
7.1 TERM. This Agreement shall commence as of the Effective Date for an
initial three (3) year term and shall automatically renew for
successive one (1) year renewal terms, unless terminated earlier as
provided herein, or unless either party shall have given the other
party written notice of non-renewal at least one hundred eighty (180)
days prior to the end of the then current term.
7.2 TERMINATION FOR CAUSE. Either party has the right to terminate this
Agreement immediately upon written notice at any time if the other
party materially breaches any obligation hereunder, which material
breach is incapable of cure or which, being capable of cure, has not
been cured with thirty (30) days after receipt of written notice from
the nondefaulting party or within such additional cure period as the
nondefaulting party may authorize.
7.3 TERMINATION BY SYNOPSYS.
(a) Synopsys has the right to terminate this Agreement upon thirty (30)
days written notice at any time if OEM Partner sells all or
substantially all of its assets to any direct competitor of Synopsys.
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(b) In addition, Synopsys has the right to terminate this Agreement upon
ninety (90) days written notice at any time if OEM Partner sells all or
substantially all of its assets, or implements or suffers any material
change in management or control (which such change is evidenced by a
substantial change in OEM Partner's board of directors); however, in
such event Synopsys agrees, in good faith, to meet with OEM Partner and
the third party buying all or substantially all of OEM Partner's assets
or assuming day-to-day management or control of OEM Partner to discuss
the possible continuation of this Agreement as between Synopsys and
such third party.
(c) EFFECT OF TERMINATION. Upon termination of this Agreement in accordance
with Sections 7.2 or 7.3(a), OEM Partner shall immediately cease all
manufacturing and distribution of the Licensed Software and all
outstanding monies due to Synopsys for Licensed Software (excluding
minimum payments for periods-that have not yet occurred) will be
accelerated so they become due and payable on the effective date of
termination. If expiration or termination occurs for reasons other than
under Section 7.2 or 7.3(a), there shall be a phase-out period of
between six (6) months and one (1) year, (the exact time period to be
mutually agreed upon), after expiration to allow for reasonable
transition. During the phase-out period OEM Partner may continue to
sell the Licensed Software pursuant to the terms and conditions of this
Agreement, but will not receive Updates, only Bug Fixes. Termination
will not relieve either party from any liability arising from any
breach of this Agreement. Neither party will be liable to the other for
damages of any sort solely as a result of terminating this Agreement in
accordance with its terms. Termination of this Agreement will be
without prejudice to any other right or remedy of either party. The
provisions of Sections 3, 7, 8, 9, 11, and 12 shall survive the
expiration or termination of this Agreement for any reason. All End
User sublicenses in effect prior to the date of expiration or
termination of this Agreement shall survive. All other rights and
obligations of the parties shall cease upon expiration or termination
of this Agreement.
8. LIMITATION OF LIABILITY
8.1 DIRECT DAMAGES. EACH PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT
AND/OR SALE OF THE LICENSED SOFTWARE SHALL BE LIMITED TO THE CUMULATIVE
AMOUNTS PAID BY OEM PARTNER FOR THE LICENSED SOFTWARE.
8.2 CONSEQUENTIAL DAMAGES. EXCEPT AS SET FORTH IN SECTION 11, UNDER NO
CIRCUMSTANCES, SHALL SYNOPSYS AND ITS THIRD PARTY LICENSORS BE LIABLE
FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING IN ANY
WAY OUT OF THIS AGREEMENT OR THE USE OF THE LICENSED SOFTWARE AND
DOCUMENTATION, HOWEVER CAUSED, (WHETHER ARISING UNDER A THEORY OF
CONTRACT, TORT (INCLUDING NEGLIGENCE); OR OTHERWISE), INCLUDING,
WITHOUT
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LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA, OR COSTS
OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE
LIMITATIONS ON SYNOPSYS' AND ITS LICENSORS' LIABILITY SET FORTH
IN THIS SECTION 8 SHALL APPLY NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY OF THE LIMITED REMEDIES SET FORTH IN
SECTION 4.1 ABOVE.
EXCEPT FOR BREACHES OF SECTIONS 2 OR 3.1, or 3.5 OF THIS AGREEMENT,
UNDER NO CIRCUMSTANCES SHALL OEM PARTNER BE LIABLE FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY OUT OF THIS
AGREEMENT HOWEVER CAUSED, (WHETHER ARISING UNDER A THEORY OF CONTRACT,
TORT (INCLUDING NEGLIGENCE); OR OTHERWISE), INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOST PROFITS, OR LOSS OF DATA.
9. CONFIDENTIALITY
9.1 CONFIDENTIALITY. Each party shall treat as Confidential Information of
the other party, shall not use such Confidential Information except as
expressly set forth herein or otherwise authorized in writing, shall
implement reasonable procedures to prohibit the disclosure,
unauthorized duplication, misuse or removal of the other party's
Confidential Information and shall not disclose such Confidential
Information to any third party without the prior written consent of
the disclosing party. Without limiting the foregoing, each party shall
use at least the same procedures and degree of care that it uses to
prevent the disclosure of its own Confidential Information of like
importance to prevent the disclosure of Confidential Information
disclosed to it by the other party under this Agreement, but in no
event less than reasonable care.
9.2 NO BENCHMARKS. OEM Partner agrees not to disclose or publish
performance benchmarking results involving the Licensed Software
without the express prior written consent of Synopsys.
10. MARKETING
10.1 TRADEMARK USE. During the term of this Agreement, OEM Partner is
authorized by Synopsys to use on a non-exclusive basis the trademarks
Synopsys uses for the standard Licensed Software only in connection
with OEM Partner's and, as permitted, OEM Partner's Resellers'
advertisement, promotion and distribution of the Licensed Software. Any
use of such trademarks will be in accordance with applicable law and
Synopsys, documented policies concerning trademark usage, which it
shall have provided to OEM Partner from time to time. Upon request by
Synopsys, OEM Partner shall promptly provide Synopsys with a reasonable
number of demonstration copies of Licensed Software products bearing
such trademarks and samples of each use
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of the "FPGA Express" logo by OEM Partner and/or its distributors and
resellers to ensure compliance with the quality and trademark
obligations herein. If Synopsys reasonably determines that: i) such use
conflicts with applicable law or the applicable documented Synopsys
policy; or ii) the Licensed Products distributed by OEM Partner are not
of at least the same quality as the corresponding products distributed
by Synopsys under the applicable marks and OEM Partner has not
corrected the issues documented by Synopsys within 30 days of receipt
of Synopsys' notice, OEM Partner shall employ commercially reasonable
efforts to cease subsequent use of the Synopsys trademarks and shall
cease all such use within one hundred twenty (120) days of such notice.
The goodwill associated with the use of any Synopsys trademarks by OEM
Partner shall inure solely to the benefit of Synopsys.
10.2 PROMOTION. OEM Partner shall prominently display and promote the
Licensed Software. OEM Partner and Synopsys will cooperate in product
promotions, press releases, trade shows and the like. The parties agree
to jointly coordinate all press releases issued under this Agreement.
Each party must review and agree to the text of any public announcement
related to this Agreement prior to its release, which agreement will
not be unreasonably withheld.
10.3 PRINTED MATERIALS. OEM Partner may purchase at the price paid by
Synopsys reasonable quantities of printed marketing materials,
collateral, product data sheets and other materials relating to the
marketing of the Licensed Software that Synopsys provides to its other
Resellers ("Printed Materials"), or to provide OEM Partner with source
information for such Printed Materials if they are generated for
Synopsys by a third party. Subject to availability, Synopsys will, at
OEM Partner's request, provide, at no charge, electronic versions of
the Printed Materials in a format suitable for reproduction by OEM
Partner. OEM Partner and its Resellers shall have the right to
distribute, reproduce, translate, modify and create derivative works of
the Printed Materials. OEM Partner shall display Synopsys' trademarks
and/or copyright notifications, as applicable, on copies of the Printed
Materials that are created or modified by OEM Partner which include any
Synopsys trademarks or copyrighted materials.
11. INFRINGEMENT INDEMNITY
11.1 INDEMNITY. Synopsys agrees, at its own expense, to defend or, at its
option, to settle, any claim or action brought against OEM Partner to
the extent it is based on a claim that the Licensed Software as
delivered to OEM Partner infringes or violates any United States,
European, or Japanese patent, or any copyright, trademark, trade secret
or other proprietary right of a third party which is claimed under the
laws of a Berne Convention member country, and Synopsys will indemnify
and hold OEM Partner harmless from and against any damages, costs and
fees reasonably incurred (including reasonable attorneys' fees) that
are attributable to such claim or action and which are
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assessed against Licensee in a final judgment or settlement. OEM
Partner will provide Synopsys with: (i) prompt written notification of
the claim or action; (ii) sole control and authority over the defense
or settlement thereof; and (iii) all available information, assistance
and authority to settle and/or defend any such claim or action.
11.2 LIMITED REMEDIES. If the Licensed Software becomes, or in the opinion
of Synopsys is likely to become, the subject of an infringement claim
or action, Synopsys may at its sole option: (i) procure, at no cost to
OEM Partner, the right to continue using the Licensed Software; (ii)
replace or modify the Licensed Software to render it noninfringing,
provided there is no material loss of functionality; or (iii) if, in
Synopsys' reasonable opinion, neither (i) nor (ii) above are
commercially feasible, terminate the license and refund the amounts OEM
Partner paid for such Licensed.
11.3 EXCEPTIONS. Synopsys will have no liability under this Section 11 for
any claim or action to the extent that: (i) such claim or action would
have been avoided but for modifications of the Licensed Software, or
portions thereof, made by Synopsys or any party authorized by Synopsys
to make such modification on behalf of Synopsys after delivery to OEM
Partner; (ii) such claim or action would have been avoided but for the
combination or use of the Licensed Software, or portions thereof, with
other products, processes or materials not specified by Synopsys in the
Documentation; (iii) OEM Partner continues allegedly infringing
activity after being notified thereof or after being informed of
modifications offered by Synopsys free of charge or under its support
program that would have avoided the alleged infringement; or (iv) OEM
Partner's use of the Licensed Software is not in accordance with the
material terms of this Agreement and such use is related to the
infringement or alleged infringement.
11.4 DISCLAIMER. THE FOREGOING PROVISIONS OF THIS SECTION 11 STATE THE
ENTIRE LIABILITY AND OBLIGATIONS OF SYNOPSYS AND ITS LICENSORS, AND THE
EXCLUSIVE REMEDY OF OEM PARTNER, WITH RESPECT TO ANY ACTUAL OR ALLEGED
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE LICENSED
SOFTWARE AND DOCUMENTATION.
12. GENERAL PROVISIONS
12.1 CHOICE OF LAW. The rights and obligations of the parties under this
Agreement shall not be governed by the 1980 U.N. Convention on
Contracts for the International Sale of Goods. This Agreement will in
all respects be interpreted and construed in accordance with, and
governed by, the laws of the Commonwealth of Massachusetts excepting
that body of Massachusetts law concerning conflicts of law provisions,
regardless of the place of execution or performance of this Agreement.
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12.2 ASSIGNMENT. This Agreement may not be assigned by OEM Partner without
the prior written consent of Synopsys, which consent shall not be
unreasonably withheld. In the event OEM Partner sells all or
substantially all of its assets, or implements or suffers any material
change in management or control (which such change is evidenced by a
substantial change in OEM Partner's board of directors) and such sale
or change in management or control is not to a direct competitor of
Synopsys, Synopsys agrees, in good faith, to meet with OEM Partner and
the third party buying all or substantially all of OEM Partner's assets
or assuming day-to-day management or control of OEM Partner to discuss
the possible continuation of this Agreement as between Synopsys and
such third party. OEM Partner may not delegate its duties hereunder
without the prior written consent of Synopsys, which consent shall not
be unreasonably withheld.
12.3 NOTICES. Any notice, report, approval or consent required or permitted
hereunder shall be in writing and will be deemed to have been duly
given if delivered personally, by facsimile, or mailed by first-class,
registered or certified mail, postage prepaid to the respective
addresses of the parties as set forth in this Agreement. If to
Synopsys, Attention: General Counsel.
12.4 NO WAIVE. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or
any other provision.
12.5 INDEPENDENT CONTRACTOR. The relationship of Synopsys and OEM Partner
established by this Agreement is that of independent contractors, and
nothing contained in this Agreement shall be construed (i) to give
either party the power to direct or control the day-to-day activities
of the other or (ii) to constitute the parties as partners, joint
venturers, co-owners or otherwise as participants in a joint or common
undertaking.
12.6 SEVERABILITY. If for any reason a court of competent jurisdiction finds
any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced to the
maximum extent permissible so as to effect the intent of the parties,
and the remainder of this Agreement will continue in full force and
effect.
12.7 ATTORNEYS' FEES. The prevailing party in any action to enforce the
Agreement shall be entitled to recover costs and expenses including,
without limitation, reasonable attorneys' fees.
12.8 INJUNCTIVE RELIEF. The parties agree that a material breach of this
Agreement adversely affecting either party's Intellectual Property
Rights could cause irreparable injury for which monetary damages would
not be an adequate remedy and the non-breaching party may be entitled
to equitable relief in addition to any remedies it may have hereunder
or at law.
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12.9 FORCE MAJEURE. Notwithstanding anything else in this Agreement, no
default, delay, or failure to perform on the part of either party shall
be considered a breach of this Agreement if such default, delay or
failure to perform is shown to be due to causes beyond the reasonable
control of the party charged with a default, including, but not limited
to, causes such as strikes, lockouts, or other labor disputes, riots,
civil disturbances, actions or inactions of governmental authorities or
suppliers, epidemics, war, embargoes, sever weather, fire, earthquakes,
acts of God, or the public enemy, nuclear disasters, or default of a
common carrier.
12.10 EXPORT CONTROLS. OEM Partner agrees and certifies that neither the
Licensed Software, nor any other technical data received from Synopsys
will be exported or re-exported outside the United States except as
authorized and as permitted by the laws and regulations of the United
States.
12.11 ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes
the entire agreement between the parties with respect to the subject
matter hereof, and supersedes all prior agreements or representations,
oral or written, regarding such subject matter. This Agreement may not
be modified or amended except in a writing signed by a duly authorized
representative of both parties.
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EXHIBIT A
LICENSED SOFTWARE DESCRIPTION AND SPECIFICATIONS
1. Licensed Software, as of the date of this agreement, shall consist of
the following products with the following components:
(a) FPGA EXPRESS (FOR UNIX AND WINDOWS PLATFORMS)
FPGA Express Graphical User Interface (HP supported when available)
FPGA Express Synthesis Engine
FPGA Express TimeTracker
FPGA Express VHDL Language Optimizer
FPGA Express Verilog Language Optimizer
FPGA Express Technology Optimizers
FPGA Express Graphical Analysis Tools
(b) FPGA EXPRESS LITE (FOR UNIX AND WINDOWS PLATFORMS)
FPGA Express Graphical User Interface (HP supported when available)
FPGA Express Synthesis Engine
FPGA Express VHDL Language Optimizer
FPGA Express Verilog Language Optimizer
FPGA Express Technology Optimizers for specific OEM End Users
2. Additional Products. Additional products may be added to this Agreement
upon mutual agreement of the parties. In the event additional products
are added to this Agreement by mutual written agreement of the parties
hereto, they shall be included in the definition of Licensed Software.
3. Operating System. The Licensed Software shall run on both Windows 95
and Windows NT operating systems. Synopsys has made OEM Partner aware
of an incompatibility with Windows 95 and Windows 98 for the Graphical
Analysis Tools which Synopsys is currently working to resolve,
estimated resolution December 31, 1998. All Microsoft current and
popularly-installed versions of Windows 95 and Windows NT will be
supported (e.g., NT 3.51 and 4.0). Synopsys will provide six (6) months
notice of its intention to discontinue support of any version. While
the Agreement is in effect, OEM Partner may continue selling the final
release for a period between six (6) months and one (1) year, (the
actual period to be mutually agreed upon), after discontinuation. No
backup technical support or bug fixes will be provided for discontinued
versions.
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A version of the Licensed Software which runs on the UNIX operating
system shall also be provided by Synopsys for sale with the OEM Partner
UNIX product line at the prices set forth in Exhibit B and subject to
the restrictions contained in Section 2.2 of this Agreement.
4. Node Locked Configuration. If possible, the Licensed Software shall be
offered in node-locked and floating network configurations and Synopsys
shall use its best commercial effort to provide the Licensed Software
engineered so as to work with and be protected by OEM Partner's
software licensing scheme.
5. FPGA EXPRESS LITE REGISTER LIMITS. OEM Partner may distribute the FPGA
Express Lite product through its Resellers Actel, Lattice, and Lucent
at the pricing set forth in Exhibit B, provided that OEM Partner
ensures that the FPGA Express Lite products distributed through such
Resellers are configured so that, during the following date ranges,
each FPGA Express Lite product shall have no more than the following
maximum numbers of registers available for use:
If distributed by Lattice:
Effective Date to May 31, 1999 600
June 1, 1999 to May 31, 2000 900
June 1, 2000 to May 31, 2001 1350
June 1, 2001 to May 31, 2002 2025
After May 31, 2002 according to contract
between
OEM Partner and Lattice
If distributed by Actel:
Effective Date to December 31, 1998 400
After December 31, 1998 according to contract
between
OEM Partner and Actel
If distributed by Lucent:
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Effective Date to May 31, 1999 800
June 1, 1999 to August 31, 1999 900
September 1, 1999 to May 31, 2000 1200
June 1, 2000 to August 31, 2000 1350
September 1, 2000 to May 31, 2001 1800
After May 31, 2001 according to contract
between
OEM Partner and Lucent
OEM Partner may not expand the distribution of FPGA Express Lite beyond
the three Resellers named above.
6. NON-SOLICITATION OF RESELLERS. Synopsys agrees that, during the
term of this Agreement, it shall not initiate or invite any
discussions or negotiations with any of the OEM Partner Resellers
named in Paragraph 5 above or otherwise appointed by OEM Partner to
distribute the FPGA Express Lite product. In the event that any
such Reseller approaches or contacts Synopsys of its own accord
Synopsys shall notify OEM Partner no later than thirty (30) days
following such approach or contact but such notice shall in no way
preclude Synopsys from entering into a reseller relationship with
any such entity.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives:
VIEWLOGIC SYSTEMS, INC. SYNOPSYS, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
------------------- ------------------
Title: President Title: Vice President General Counsel
----------- -------------------------------
Date: 10-2-98 Date: 10-2-98
------- -------
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EXHIBIT B
LICENSED SOFTWARE AND MAINTENANCE FEES
1. OEM Partner agrees to the following Minimum Purchase Commitments. OEM
Partner will pay Synopsys thirty-two percent (32%) of the suggested
list price for all PC Platform sales of the Licensed Software and
thirty-seven percent (37%) of the suggested list price for all UNIX
Platform sales of the Licensed Software. In addition, OEM Partner shall
pay Synopsys, maintenance fees for the Licensed Software as set forth
in this Exhibit B, Section 1(B). The license and maintenance fees are
as set forth below.
A. MINIMUM PURCHASE COMMITMENT
OEM Partner agrees to the following revenue commitments for Licensed Software
and maintenance sales during Period 1:
Period 1: October 1, 1998 to September 30, 1999
Minimum Purchase Commitment: $750,000
In the event OEM Partner has not met the Minimum Purchase Commitment prior to
the end of the Period, OEM Partner must pay Synopsys the remainder of the
Minimum Purchase Commitment within thirty (30) days following the end of such
Period.
Minimum Purchase Commitments for subsequent Periods shall be the same as that
set forth above unless the parties mutually agree in writing to a different
amount within thirty (30) days of any renewal of this Agreement.
In the event Synopsys adds material additional distribution channels for the
Licensed Software or materially expands its direct sales force for the Licensed
Software, the parties agree that they shall discuss whether the additions are
such that there is likely to be a loss of market share by OEM Partner, and if
so, then to mutually agree on an appropriate reduction of the Minimum Purchase
Commitments.
B. PER UNIT LICENSE AND MAINTENANCE FEES
As reflected in the following table, for each copy of the FPGA Express Licensed
Software sold hereunder, OEM Partner agrees to pay Synopsys a per unit license
fee plus a maintenance fee of 15% of the applicable per unit license fee as
follows:
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PC PLATFORM PRICING
SYNOPSYS LICENSE FEE MAINTENANCE
DESCRIPTION US LIST PRICE TO SYNOPSYS TO SYNOPSYS
------------- -------------- ------------ -------------
Base $5,000 $1,600 $ 240
1 vendor, 1 language,
node-locked)
All vendor option $4,000 $1,280 $ 190
Second Language $4,000 $1,280 $ 190
Floating License $4,000 $1,280 $ 910
Timing Option $3,000 $ 960 $ 144
Graphical Analysis Tools $4,000 $1,280 $ 190
UNIX PLATFORM PRICING
SYNOPSYS LICENSE FEE MAINTENANCE
DESCRIPTION US LIST PRICE TO SYNOPSYS TO SYNOPSYS
------------- --------------- ------------- ------------
Base $29,000 $10,370 $1,610
(includes the all Vendor
option, Second
Language, Floating
License, Timing Option,
Graphical Analysis
Tools)
The above specifically excludes any FPGA Compiler II specific features
Synopsys may revise the suggested list prices as set forth in Section 3 of this
Agreement.
OEM Partner may discount the suggested end-user list price license and/or
maintenance fees set forth above. However, notwithstanding any greater discount
provided by OEM Partner to its customers, OEM Partner shall pay Synopsys the
license and maintenance fees set forth above.
2. SALES BY OEM PARTNER'S DISTRIBUTORS
In addition, OEM Partner may allow the following three (3) Distributors to
re-sell the FPGA Express Lite product on the PC Platform only:
Actel
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Lattice
Lucent
The above-listed Distributors may not advertise, issue press releases, or
distribute printed marketing materials using the product name "FPGA Express". In
addition, such Distributors may not resell the FPGA Express Licensed Software as
defined in Exhibit A, Section l(a).
The above-listed Distributors may resell the FPGA Express Lite Licensed Software
as defined in Exhibit A, Section 1(b) during the term of this agreement. These
Distributors may sell an unlimited number of FPGA Express Lite licenses with
size restrictions described in Exhibit A, Section 5, for a fee of $50,000 per
calendar quarter, in advance, to be paid to Synopsys by OEM Partner for each of
the three (3) OEM Partner Distributors identified above, commencing with the
calendar quarter beginning on April 1, 1999. Synopsys agrees that the payment
due on April 1, 1999 shall have terms of net 90 days such that the April 1, 1999
payment shall he paid on July 1, 1999 together with the July 1999 payment. These
above listed Distributors may sell the size unrestricted version of FPGA Express
Lite as an upgrade to the such restricted version, and OEM partner will pay
Synopsys a royalty of $640.00 (32% royalty of $2000 suggested list price) for
each such upgrade. The parties agree to negotiate in good faith an increase in
the above-listed Distributor fees which is proportional to any change in terms
as between OEM Partner and such Distributors.
In the event that an End User who purchased a copy of FPGA Express Lite from OEM
Partner or one of OEM Partner's Resellers purchases an "upgrade" to FPGA Express
from OEM Partner, then OEM Partner will owe Synopsys a royalty of fifty percent
(50%) of the standard royalty set forth in Item 1 of this Exhibit for the base
product and one hundred percent (100%) of the standard royalty set forth in Item
1 of this Exhibit for any additional products, subject also to said end User
certifying to its discontinued use of the FPGA Express Lite product.
3. OEM Partner shall prepare a report detailing all sales during each
fiscal quarter of this Agreement and shall provide such report to
Synopsys and make quarterly payments to Synopsys, in the amounts
described in Item 1 of this Exhibit, for all sales of the Licensed
Software and maintenance during the previous fiscal quarter, within
thirty (30) days of the end of each fiscal quarter.
4. From the Effective Date until March 31, 1999, OEM Partner will not owe
Synopsys royalties for Licensed Software provided to universities who
agree to use such Licensed Software for educational purposes only
("Educational Users"). Thereafter, OEM Partner will have the
opportunity to provide an unlimited number of copies of the Licensed
Software to Educational Users during the Term of this Agreement for a
fee of Ten Thousand Dollars ($10,000) per calendar quarter, payable
quarterly, in advance. OEM Partner will provide Synopsys with quarterly
reports identifying the universities
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to which the Licensed Software is provided. OEM Partner will provide
Synopsys with 90 days prior notice of its intention not to renew this
option.
5. From the Effective Date through December 31, 1998, existing OEM Partner
customers who have previously purchased licenses for the OEM Partner's
Aurora or ViewSynthesis products will receive an upgrade to a
comparable configuration of FPGA Express at no charge. Thereafter, any
such upgrades are subject to the pricing set forth in Section 1 of this
Exhibit B.
6. REPORTS. On a quarterly basis, OEM Partner shall provide Synopsys with
reports identifying all Licensed Software and maintenance sold or
distributed, the purchase order number, the date of the transaction,
the OEM Partner catalog number, and the fee paid to Synopsys for each
such license or maintenance contract. In the case of Licensed Software
sold by Actel, Lattice, and Lucent, OEM Partner is only required to
report the total number of copies of the Licensed Software distributed
by each Distributor.
Upon reasonable notice, Synopsys may request reasonable access to OEM
Partner's facilities to review OEM Partner's license generation process
and data as it pertains to information about licenses generated for End
Users of Actel, Lattice and Lucent.
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EXHIBIT C
VIEWLOGIC END USER LICENSE AGREEMENT
(SEE ATTACHED)
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23
MASTER SOFTWARE LICENSE AGREEMENT
Licensee:________________________________________________
Address:________________________________________________
_______________________________________________
_______________________________________________
By: _______________________________________________
Name: _______________________________________________
Title: _______________________________________________
Date: _______________________________________________
Viewlogic Systems, Inc.
By: _______________________________________________
Name: _______________________________________________
Title: _______________________________________________
Date: _______________________________________________
This Master Software License Agreement ("Agreement") with an effective date of
_______________ is made by and between Viewlogic Systems, Inc., a Delaware
corporation and an Equal Opportunity and Affirmative Action Employer and its
subsidiaries (collectively "Viewlogic") and Licensee. This Agreement shall
govern all licensing of Software, Peripherals and Documentation as those items
are defined in this Agreement.
A complete description of the Licensed Products is contained in the Product
Description Addendum described below and incorporated herein.
A complete description of the software support services provided under this
Agreement is contained in the Software Maintenance Agreement Addendum described
below and incorporated herein.
1. DEFINITIONS.
1.1 "Designated Equipment" means the equipment as set forth in the Product
Description Addendum, or any temporary substitute as specified at
Section 3.6 below. Any transfer of the Designated Equipment shall be
subject to the provisions of Sections 3.4 & 3.5.
1.2 "Designated Location" means the specific address of the Designated
Equipment as set forth in the Product Description Addendum. Any change
in the Designated Location shall be subject to the provisions of
Sections 3.4 & 3.5.
1.3 "Documentation" means the documentation for the Software.
1.4 "Licensed Products" means two products licensed under this
Agreement described in to Product Description Addendum attached hereto.
Generally, the term shall include the Documentation, Peripherals and
Software.
1.5 "Peripherals" means the mouse, software code block and cable furnished
to Licensee under this Agreement for use with the Software.
1.6 "Product Description Addendum" or Addenda is one or more documents
attached hereto, and any additions after the effective date of this
Agreement, that specifies the Licensed Products for use on the
Designated Equipment at the Designated Location. This Addendum may be
the Viewlogic quotation or any other suitable document accepted by
Viewlogic which contains the required information.
1.7 "Proprietary Information" means: (a) manufacturing processes, (b)
marketing business or other strategies or plans; and (c) any other
trade secrets disclosed in writing and marked appropriately or
identified as proprietary or confidential. "Proprietary information"
includes the internal design and implementation techniques of the
Licensed Products, and the source code of the Software. Excluded is any
information that the receiving party can establish was: (d) in the
public domain; (e) already in its possession, or rightfully known prior
to receipt; (f) rightfully learned from a third party not in violation
of any others proprietary rights; or (g) developed independently.
1.8 "Software" means the computer program or programs in
machine readable form furnished to License under this
Agreement. Such software may include software provided
by Viewlogic's suppliers for sublicensing hereunder as well
as software that Viewlogic owns. In with the Software
Maintenance Agreement Addendum attached hereto,
"Software" shall also include any update or upgrade
programs furnished thereunder.
1.9 "Software Maintenance Agreement" means that agreement for software
support services if any, set forth in the Software Maintenance
Agreement Addendum attached hereto and
incorporated herein.
1.10 "Territory" means the country of the Designated Location.
1.11 "Updates" are now releases of a particular Software program.
1.12 "Upgrades" are programs with a higher Viewlogic series
number or greater capability than the program to be
upgraded.
1.13 "Use" includes copying all or any portion of the Software into a
computer or transmitting it to a computer for processing of its
instructions, and/or displaying any portion of the Software in
connection with the processing of such machine instructions.
2. PAYMENT, DELIVERY AND INSTALLATION.
2.1 Prices. Unless otherwise agreed in writing, prices will be as set forth
an Viewlogic's price list in effect for the Designated Equipment and
the Designated Location. Any subsequent change in the Designated
Equipment or Location may be
subject to new pricing per Section 3.4.
2.2 Payment. Unless otherwise agreed in writing, Licensee shall pay
Viewlogic in full for all Licensed Products within thirty (30) days of
the invoice date.
2.3 Installments. Licensee shall pay for each installment delivery of
Licensed Products as a separate transaction.
2.4 Delivery. Viewlogic and/or its suppliers will deliver the Licensed
Products FOB origin under a mutually agreed delivery schedule at
Licensee's expense.
2.5 Installation. licensee shall be solely responsible to install the
Licensed Products unless otherwise agreed upon in writing.
3. LICENSE GRANT.
3.1 Grant. Viewlogic hereby grants, and Licensee accepts, a
nontransferable, nonsublicensable, perpetual, nonexclusive,
fully
Version 1.0 24 1 December 1995
paid, limited license to use the Licensed Products in machine readable
form on the Designated Equipment at the Designated Location for
Licensee's internal, normal business use only. The Licensed Products
are not for use in a computer service business, rental or commercial
timesharing arrangement.
3.2 Intellectual Property Rights. All intellectual property rights in and
to the Licensed Products, other than those granted under this
Agreement, shall remain the sole and exclusive property of Viewlogic
and/or its suppliers as appropriate.
3.3 Use on Designated Equipment. Use is restricted to the
Designated Equipment at the Designated Location, whether a
single computer or a network. Accessing the Licensed
Products from any location other than the Designated
Location via wide area networking technology or any other
means is prohibited unless authorized by the Product
Description Addendum. The addition of any networked
computer beyond that specified in the Product Description
Addendum or a change in the Designated Location unless
authorized in advance by Viewlogic as provided in Section
3.4 shall breach this Agreement.
3.4 Transfers. Viewlogic may, at its sole option, grant Licensee's request
for a change in the Designated Equipment or Designated Location within
the Territory. Licensee must pay Viewlogic an administrative fee for
any change granted by Viewlogic.
3.5 Licensee to Certify Equipment and Location. Licensee shall, upon
request from Viewlogic certify to Viewlogic in writing the current
Designated Equipment and Designated Location.
3.6 Substitute Designated Equipment. In the event that the Designated
Equipment becomes inoperative due to malfunction, repair, servicing or
other like cause, and the terms of the Software Maintenance Agreement
remain in effect, Viewlogic shall use it commercially reasonable
efforts to assist Licensee upon Licensee's request in the transfer to
and use of the Licensed Products on a substitute system at the
Designated Location. The substitute system shall be deemed the
Designated Equipment during its use. If the Software Maintenance
Agreement or its equivalent is not then in effect, Licensee shall pay
Viewlogic's list price transfer fee.
3.7 Automatic License; Payment. Licensee acknowledges and agrees that any
use of the Licensed Products on other than the Designated Equipment at
the Designated Location will materially breach this Agreement. However,
Viewlogic may elect not to terminate, but to give notice to Licensee
that Licensee is deemed to order and accept a license for each
breaching use. Licensee shall then become liable to pay Viewlogic the
applicable list price license and support fees under the payment terms
of Section 2 effective as of the date of such breach.
4. PROTECTION OF PROPRIETARY INFORMATION.
4.1 Confidentiality. The Propriety Information of Viewlogic shall remain
confidential and proprietary to Viewlogic.
4.2 Source Code. Licensee agrees not to attempt to reverse engineer,
decompile, or disassemble the Software or any portion thereof, or
otherwise derive its source code.
4.3 Copies. Licensee may make backup and archival copies of the Software
and Documentation solely for its internal use, retaining on all copies
Viewlogic's and/or its suppliers' copyright, trademark, or other
proprietary notices.
4.4 Destruction of Copies. Licensee shall erase the Software from the
storage media of any Designated Equipment prior to disposing of or
refiring such equipment from active use or in the event of termination
of this Agreement Licensee also must destroy all other copies upon such
termination.
4.5 Inclusion With Other Software. Licensee may use the Software within or
in conjunction with any other software, but must comply with Section
4.4 above upon any termination of this Agreement or change of the
Designated Equipment or Location, and any use shall always remain
subject to this Agreement. Licensee shall display Viewlogic's or its
suppliers' copyright trademark or other proprietary notices an any
portion of the Software used.
4.6 Protect Confidentiality. Licensee agrees not to disclose, provide or
otherwise make available the Proprietary Information of Viewlogic to
any person other than authorized employees without Viewilogic's prior
written consent. Licensee agrees to protect the Proprietary Information
through instructions to its employees, access limitations and the like,
no less securely than if it were the Licensee's own intellectual
property. No media containing the Software, or any Documentation shall
be transferred, reproduced or used in any way other than as provided by
this Agreement
4.7 Certify Protection. Viewlogic shall give Licensee written notice if
Viewlogic reasonably deems itself insecure with respect to Licensees
compliance with the protections of Sections 3 and 4. Licensee shall
then within ten (10) days of the notice, either certify in writing by a
duly authorized representative that it has complied with the terms of
those Sections or give Viewlogic access to its facilities in a manner
that is sufficient to enable Viewlogic to verify compliance.
5. SOFTWARE MAINTENANCE.
Viewlogic shall provide, and Licensee shall accept, software maintenance
services under the Software Maintenance Agreement Addendum at Viewlogic's then
current maintenance fee for an initial term of one year after expiration of the
Software warranty period, renewable year to year until termination occurs under
the said Software Maintenance Agreement. Termination will end any support
obligations of Viewlogic, and Licensee shall incur reinstatement charges in the
event of a lapse and subsequent renewal.
6. WARRANTY.
6.1 Software. Viewlogic warrants that the Software will conform
substantially to its Documentation for thirty (30) days from delivery.
If Viewlogic confirms a defect, reported by Licensee, in the unaltered
Software, Viewlogic shall use commercially reasonable efforts to remedy
to nonconformance. Viewlogic does not warrant that the
operation of any of the Licensed Products will be uninterrupted or
error free, nor does it guarantee that its remedial efforts will
correct any nonconformance.
6.2 Media and Peripherals. Viewlogic warrants that the media containing the
Software and the Peripherals will be free of defects in materials and
workmanship under normal use and service for (30) days from delivery.
Viewlogic's entire liability and Licensee's sole remedy for defective
media or Peripherals shall be for Viewlogic to replace any returns
within the warranty period. Viewlogic will not replace failures that
are not returned or that we caused by accident, abuse, or
misapplication. Any replacements will be warranted for the remainder of
the original warranty period.
6.3 DISCLAIMER. VIEWLOGIC MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESSED
OR IMPLIED, WRITTEN OR ORAL, EXCEPT AS EXPRESSLY STATED IN THIS SECTION
6. SPECIFICALLY, VIEWLOGIC MAKES NO IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
Version 1.0 25 1 December 1995
PURPOSE OR FREEDOM FROM INFRINGEMENT FOR THE LICENSED
PRODUCTS.
7. INFRINGEMENT.
7.1 Viewlogic to Defend. Viewlogic will defend, at its own expense, any
action against Licensee based upon the claim that the Licensed Products
infringe a United States patent or copyright or involve
misappropriation of a trade secret. Viewlogic will pay such damages or
costs as are finally awarded against Licensee for such infringement or
misappropriation provided that Licensee gives Viewlogic: (a) prompt
written notice of any such action and of an prior related claims; (b)
sole control of the defense and/or settlement of such action; and (c)
cooperates fully in any defense or settlement. Viewlogic shall not be
liable for any fees, costs or damages incurred without such prior
notice.
7.2 Obtain Permission or Modify. Should any Licensed Product become, or in
Viewlogic's opinion be likely to become, the subject of a claim of
infringement or trade secret misappropriation, Viewlogic shall, at its
option and expense: (a) obtain for Licensee the right to continue using
the Licensed Product; (b) replace or modify the Licensed Product so its
use becomes noninfringement or otherwise lawful; or (c) terminate the
licenses granted hereunder with respect to the infringing Licensed
Products and refund the amounts paid by Licensee for the infringing
Licensed Products, less a reasonable allowance for use.
7.3 Disclaimer. Notwithstanding the foregoing. Viewlogic shall have no
liability for any claim of patent or copyright infringement or trade
secret misappropriation based upon the operation or use of any Licensed
Products: (a) on a computer for which it was not designed; (b) with any
other software not supplied by Viewlogic; (c) in any manner or purpose
for which the Licensed Products were not designed or recommended by
Viewlogic; (d) if the infringement or misappropriation would have been
avoided by Licensee's use of the most current version of the Licensed
Product; or (e) which have been modified by anyone other than
Viewlogic.
8. LIMITATION OF REMEDIES.
8.1 No Other Liability. Except as otherwise stated in this Agreement,
Viewlogic's entire liability to Licensee and Licensee's sole remedy for
any cause whatsoever, regardless of the form of the action, whether in
contract tort or strict liability, shall be limited to the amounts paid
to Viewlogic by Licensee for the Licensed Products that: (a) caused the
damages; (b) are the subject matter of the action; or (c) are directly
related to the cause of action.
8.2 NO CONSEQUENTIAL, ETC. DAMAGES. IN NO EVENT SHALL VIEWLOGIC OR ANY OF
ITS SUPPLIERS BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, LOSS
OF PROFITS IN CONNECTION WITH USE OF ANY LICENSED PRODUCTS OR OTHER
ITEMS PROVIDED UNDER THIS AGREEMENT, NOR FOR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS, PROPERTY DAMAGE, PERSONAL INJURY, OR ANY OTHER
SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT WHETHER IN BREACH OF WARRANTY,
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE EVEN IF VIEWLOGIC HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Limitations Period. Neither party may bring any action under this
Agreement for any cause whatsoever more than two (2) years after the
occurrence giving rise to such cause of action, provided however that
this Section 8.3 shall not apply to any action brought by Viewlogic for
violations of Section 3 or Section 4 of this Agreement and/or actions
brought by Viewlogic to protect its intellectual property rights.
9. DEFAULT AND TERMINATION.
9.1 Default. Viewlogic may, by written notice to Licensee, terminate this
Agreement including its license of the Licensed Products it any of the
following events occurs: (a) the failure or neglect of Licensee to pay
Viewlogic any sums or amounts due to Viewlogic if payment is not
rendered within thirty (30) days attar written demand; (b) any breach
of the material terms and obligations of this Agreement are not
remedied within thirty (30) days after written demand; (c) any material
breach of Section 3 (License Grant) or Section 4 (Protection of
Proprietary Information) effective immediately upon notice from
Viewlogic; or (d) in the event of insolvency.
9.2 Termination. Licensee's right to use the Licensed Products shall cease
upon termination without further action of the parties. Within seven
(7) days of termination, Licensee shall return to Viewlogic the
Licensed Products, including the original and all copies of the
Documentation, Peripherals, and the Software and any Updates or
Upgrades thereto, together with a certification by a duly authorized
representative of Licensee that any copies of the Software not returned
have been destroyed.
9.3 No Waiver. Termination shall be in addition to, rather than a
waiver of, any remedy at law or equity under this
Agreement.
9.4 Survival. Notwithstanding the foregoing, the provisions of Sections 4
("Protection of Proprietary Information"), 6.3 ("[Warranty]
Disclaimer"), 7 ("Infringement"), & 8 ("Limitation of Remedies"), shall
survive termination.
10. GENERAL
10.1 Prior Agreements Superseded. This Agreement along with the Software
Maintenance Agreement Addendum supersedes all prior agreements and
understandings between the parties related to the subject matter
herein, and is intended to be the complete and exclusive statement of
their agreement.
10.2 Headings. The headings in this Agreement are for convenience only, and
shall be disregarded when interpreting the terms hereof.
10.3 Export Controls. Licensee shall not attempt to export the Licensed
Products without the prior written consent of Viewlogic. Any attempt to
export the Licensed Products without Viewlogic's consent will be cause
for immediate termination of this Agreement.
10.4 No Assignment. Viewlogic may assign all or any part of its rights and
duties under this Agreement. This Agreement and the Licensee's rights
and duties under this Agreement may not be assigned by Licensee without
the prior written consent of Viewlogic. Licensee agrees that this
Agreement binds Licensee and each of its employees, agents, and persons
associated with it, including Licensee's affiliated and subsidiary
firms, corporations and other organizations.
10.5 Force Majeure. Viewlogic shall not be liable for any failure or delay
in performing services or any other obligation under this Agreement or
for any damages suffered by Licensee by reason of such failure or delay
which is, indirectly or directly, caused by
Version 1.0 26 1 December 1995
strike, riot, natural catastrophe or other act of God, or any cause
beyond Viewlogic's reasonable control.
10.6 No Waiver. If either party fails to perform any of its obligations
hereunder and the other party fails to enforce the provisions relating
thereto, such party's failure to enforce this Agreement shall not
prevent its later enforcement.
10.7 Severability. If any provision of this Agreement is held invalid,
illegal or unenforceable, that provision shall be construed so as to
most closely reflect the original intent of the parties, but still be
enforceable, and the remaining provisions shall continue tin full force
and effect.
10.8 Notices. Any notice or report shall be considered given if delivered
personally or if sent by first class mail, postage prepaid, addressed
to the address specified below and specifically addressed to the person
to whom notices are to be sent as follows:
If to Licensee: Attn: __________________________________________
If to Viewlogic: Attn: Contracts Administration
The parties may change such addresses by providing notice to the
other.
10.9 Governing Law. This Agreement and all transactions hereunder shall be
governed by the laws of the Commonwealth of Massachusetts.
10.10 Attorney Fees and Costs. If any legal action is brought in connection
with this Agreement, the prevailing party shall be entitled to receive
its reasonable attorney fees and court costs in addition to any other
relief it may receive.
10.11 Modifications. No modifications of this Agreement shall be binding upon
either party unless made in writing executed by an authorized
representative of Viewlogic and Licensee.
10.12 Government Use. If the Software is being supplied to the
Department of Defense (DOD), the Software is classified as
"Commercial Computer Software" and the Government is
acquiring only "restricted rights" to the Software and
concerning the documentation the government is acquiring
only "restricted rights" (as defined in DFARS Clause
252.227-7013). If the Software is being supplied to an agency
or unit of the Government other than DOD, the Software is
classified as "Commercial Computer Software" and the
Government is acquiring only "restricted rights" to the
Software and Documentation (as defined in FAR Clause
52.227-19).
IN WITNESS WHEREOF the parties have executed this Agreement by their duly
authorized representatives as of the effective date.
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