INTERNATIONAL DISTRIBUTOR AGREEMENT
(SUMMIT AND SDA)
This International Distributor Agreement (this "Agreement") is entered
into as of May 12, 1998 ("Effective Date") by and between Summit Design,
Inc., a Delaware corporation, having its principal office at 0000 XX Xxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxx 00000-0000 XXX ("Summit"), and Summit Design Asia,
Ltd., a corporation organized and existing under the laws of the Hong Kong,
having its principal office at Xxxxx 000, Xxxxx 0, Xxxxxxxxxx, Xxxxxx Xxxx,
X.X.X. Xxxx Xxxx ("SDA").
In consideration of the mutual promises contained herein, the parties
agree as follows:
1. DEFINITIONS
1.1 "Products" means copies (made by Summit) of the object code of
those Summit software products listed in Exhibit A, attached hereto.
1.2 "Territory" means that geographic area identified in Exhibit B
attached hereto.
1.3 "HDL Products" means those Products listed in Exhibit A that are
designated as HDL Products.
1.4 "Person" means any individual, corporation, limited liability
company, joint venture, partnership, trust, estate, association, governmental
authority or other entity.
1.5 "XXXX" means the End-User Software License Agreement described in
Section 3.2 of this Agreement.
2. APPOINTMENT
2.1 APPOINTMENT (EXCLUSIVE)
Subject to the terms and conditions set forth in this Agreement, Summit
hereby appoints SDA as Summit's exclusive distributor for the Products in the
Territory, and SDA hereby accepts such appointment.
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2.2 TERRITORIAL RESPONSIBILITY
SDA shall vigorously promote the distribution of the Products in the
Territory. SDA shall pursue policies and procedures to achieve the maximum
revenue potential for the Products in the Territory.
2.3 CONFLICT OF INTEREST
SDA represents and warrants that SDA does not represent, distribute or
promote any products that compete with the Products. During the term of this
Agreement, SDA shall not represent, distribute or promote within the Territory
any products that, in Summit's judgment, compete with the Products.
2.4 INDEPENDENT CONTRACTORS
The relationship of Summit and SDA established by this Agreement is that of
independent contractors. Nothing in this Agreement shall be construed to
(i) give either party the power to direct or control the day-to-day activities
of the other, (ii) create a partnership, joint venture or other common
undertaking, or (iii) allow SDA to create any obligation on behalf of Summit for
any purpose whatsoever. SDA is solely responsible for all expenses and other
financial obligations incurred by SDA. SDA shall be solely responsible for, and
shall indemnify and hold Summit harmless from, any and all claims, damages and
expenses (including reasonable attorneys' fees) arising out of the acts of SDA
or its employees, agents, subdistributors or representatives.
2.5 CHANGE IN PRODUCTS
Summit may at any time and from time to time change, discontinue, abandon,
delete or add Products at Summit's sole discretion. Summit shall be under no
obligation to continue the production or distribution of any Product.
2.6 SUBDISTRIBUTORS
2.6.1 SDA will not appoint any subdistributor or dealer ("Sub")
without the prior written consent of Summit. Summit may withhold its consent in
its sole discretion. If Summit consents to the appointment of any Sub, such
consent shall not be deemed to constitute a consent to the appointment of any
other Sub. If Summit consents to the appointment of any Sub, Summit shall have
the right to make its consent subject to any conditions that Summit may specify,
including, without limitation, the conditions that:
PAGE 2
(a) the form, content, provisions and terms of any agreement between
SDA and such Sub pertaining to the demonstration, marketing, distribution,
installation, support or maintenance of any Products shall be subject to
approval or disapproval by Summit;
(b) SDA shall deliver to Summit a copy of each agreement described in
the preceding clause as signed by SDA and the Sub;
(c) each agreement between SDA and any Sub shall include terms and
conditions that are substantially identical to the terms and conditions set
forth in this Agreement;
(d) SDA indemnifies and holds Summit harmless from and against any
claim or liability arising out of any action or inaction by the Sub;
(e) SDA will take all action necessary or otherwise requested by Summit
against the Sub to enforce and protect Summit's rights and interests in the
Products, in Summit's trademarks or otherwise arising out of this Agreement;
(f) SDA will provide Summit with the name, address, email address, FAX
number, phone number and individual contact at the Sub;
(g) the term of each agreement between SDA and each Sub shall have
a term of no longer than 12 months;
(h) SDA shall consent to direct contact and communication between
Summit and the Sub;
(i) SDA shall consent to the automatic and immediate assignment to
Summit of SDA's rights under the agreement between SDA and the Sub in the event
that either this Agreement is terminated for any reason or this Agreement is
terminated with respect to any portion of the Territory for which Sub serves as
an exclusive or nonexclusive subdistributor or dealer; and
(j) SDA shall confirm that the laws of each country in the Sub's
territory provide effective protection of Summit's exclusive rights and
ownership of the Products (and related intellectual property), and that the
legal systems of each such country provide SDA and Summit with effective
processes, procedures and means to effectively enforce Summit's rights.
2.6.2 The appointment of a subdistributor for all or any portion
of the Territory shall not release SDA from its obligations under this
Agreement. All of SDA's obligations shall remain in full force and effect for
all of the Territory,
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including any portion of the Territory granted to any subdistributor. SDA
unconditionally and absolutely guarantees and warrants to Summit the full and
timely performance of all obligations of SDA by each subdistributor. Any
consent given by Summit shall not relieve SDA of SDA's obligations under this
Agreement with respect to SDA's subdistributors.
2.7 CONDITIONS ON SUMMIT'S OBLIGATIONS
All obligations of Summit under this Agreement shall be subject to and
conditioned upon the availability of any export licenses and other
governmental approvals that may be required for the distribution of the
Products as contemplated by this Agreement.
3. SOFTWARE LICENSE AND SUPPORT
3.1 LICENSE
The Products consist of the object code of computer application software
programs, copies of which are licensed, not sold by Summit. Subject to the
terms and conditions of this Agreement, Summit grants to SDA a license to
distribute, in the Territory, copies of the Products made by Summit and
delivered by Summit to SDA, for which SDA shall have paid to Summit the
applicable license fee. This license shall terminate upon the expiration or
earlier termination of this Agreement. This license is nondivisible and
nonsublicensable, and does not include any right to grant sublicenses. SDA
has no right to (a) make copies of the Software or related documentation; (b)
modify, reverse engineer, decompile, disassemble, create derivative works on
the Products; or (c) remove any proprietary notices, labels, trademarks or
logos from the Products.
3.2 DISTRIBUTION SUBJECT TO END-USER SOFTWARE LICENSE
SDA shall ensure that each end-user customer receives, agrees to be bound
by, and is legally subject to an End-User Software License Agreement in the form
attached hereto as Exhibit D, incorporated herein by this reference, for each
copy of Product delivered to that customer. Summit may from time to time change
the terms and conditions of the XXXX by giving notice to SDA.
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4. ORDERS AND DISTRIBUTION OF PRODUCTS BY SDA
4.1 TERMS AND CONDITIONS
Orders for Products by SDA, acceptance of such orders by Summit, and
deliveries of Products by Summit shall be subject to the terms and conditions
of this Agreement.
4.2 DELIVERY
Summit shall deliver copies of the Product to SDA, "Ex Works"
(Incoterms), Summit's distribution center located at the address listed for
Summit at the beginning of this Agreement or Herzlia, Israel. Summit
reserves the right to make delivery in installments. SDA shall pay for each
installment when due. Immediately upon receipt of any Products, SDA shall
inspect the shipment and shall notify Summit in writing of any shortages or
physical defects or damage. If SDA fails to notify Summit within five days
after receipt by SDA of any shipment, such shipment shall be deemed to
conform to the terms and conditions of this Agreement and to have been
accepted by SDA. Summit shall not be liable for any delay in or failure to
deliver any Products due to any cause beyond Summit's reasonable control.
4.3 LICENSE FEES
The initial license fee for each copy of each Product is set forth in
Exhibit A attached hereto. The difference between the license fee paid by
SDA to Summit and the license fee charged by SDA to its customers shall be
SDA's sole remuneration for distribution of the Products and all of SDA's
other obligations under this Agreement. Summit has the right at any time to
change its list price for any Product and to change the license fees in
Exhibit A by giving thirty (30) days' advance written notice to SDA. Each
revision shall apply to all orders received by Summit after the effective
date of the revision. Increases in license fees shall not apply to orders
accepted by Summit prior to the effective date of the increase. Decreases in
license fees shall apply to orders accepted by Summit prior to the effective
date of the decrease but not yet shipped.
4.4 TAXES
The license fees do not include any federal, state, local or other taxes
that may be applicable to the Products, to the delivery or distribution of
the Products, to the use of the Products, or otherwise arising out of this
Agreement. When Summit has an obligation to collect any taxes, Summit shall
add the amount of the taxes to SDA's invoice and SDA shall pay such
additional amount to Summit. SDA shall make all payments to Summit free and
clear of, and without reduction for, any withholding
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taxes. If SDA is required to withhold taxes from any amount to be paid to
Summit, the gross amount due from SDA to Summit shall be increased to the
amount necessary to result in a net payment to Summit in the amount of
Summit's invoice. Any and all taxes, duties and other governmental charges
shall be the sole responsibility of SDA. SDA shall provide Summit with an
official receipt issued by the appropriate taxing authority or such other
evidence as may be reasonably requested by Summit to establish that such
taxes have been paid.
4.5 ORDER AND ACCEPTANCE
All orders for Products submitted by SDA shall be made by written orders
sent to Summit, requesting a delivery date during the term of this Agreement;
PROVIDED, HOWEVER, that an order may initially be placed orally or by
confirmed facsimile if, additionally, a confirming written order is received
by Summit within five (5) days after said oral or facsimile order. No order
shall be binding upon Summit until accepted by Summit in writing, and Summit
shall have no liability to SDA with respect to orders that are not accepted
by Summit. Summit shall, within seven (7) days after receipt of an order, use
reasonable efforts to notify SDA of the acceptance or rejection of the order
and of the scheduled delivery date for accepted orders. No partial shipment
of an order shall constitute the acceptance of the entire order. Summit
shall use reasonable efforts to deliver Products at the times specified in
its written acceptance of SDA's orders.
4.6 ORDERS
SDA's orders shall be governed by the terms and conditions set forth in
this Agreement. Nothing contained in any order received by Summit shall in
any way modify the terms of this Agreement or add any terms or conditions.
No modification in these terms and conditions will be binding upon Summit
unless agreed to in writing and signed by an authorized officer of Summit.
4.7 PAYMENT
SDA shall make full payment of all license fees for the Products (plus
any freight, taxes or other amounts paid, advanced or incurred by Summit for
the account of SDA) to Summit within sixty (60) days after SDA's receipt of
each invoice. Payment shall be made in the United States, in U.S. dollars
and shall be made by a wire transfer to a United States bank designated by
Summit. SDA shall pay all originating exchange, interest, banking,
collection, and other charges at SDA's expense. Any amount not paid when due
shall be subject to a late charge of one and one-half percent (1.5%) per
month or the highest rate permitted by law, whichever is less. SDA shall pay
all of Summit's costs and expenses (including reasonable
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attorneys' fees) incurred by Summit to enforce and preserve Summit's rights.
If the financial condition or payment history of SDA changes, or Summit
otherwise deems appropriate, Summit may, in Summit's sole discretion, change
the terms of payment to require payment in full in advance of delivery of the
Products ordered by SDA. Summit may, without notice to SDA, delay or
postpone the delivery of any copies of the Products. SDA agrees to pay all
costs, including, but not limited to, reasonable attorneys' fees and other
expenses of collection incurred by Summit in connection with any failure of
SDA to pay any amount when due.
4.8 SHIPPING
Summit shall pack Products in Summit's standard shipping cartons, marked
for shipment to SDA's address set forth above. Unless otherwise instructed
in writing by SDA, Summit shall select the carrier and method of shipment.
SDA will be responsible for shipping, freight, insurance, duties, export
fees, import charges and other charges incurred. Such charges may be
advanced by Summit for convenience. SDA shall promptly reimburse Summit for
any and all charges incurred, paid or advanced by Summit.
4.9 SECURITY INTEREST
Summit hereby reserves, and SDA hereby grants to Summit, a security
interest in all copies of Products delivered to SDA, to secure the payment in
full of all license fees and other amounts due from SDA to Summit arising out
of this Agreement.
5. LIMITATION OF LIABILITY
5.1 NO OTHER WARRANTY
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THE XXXX, SUMMIT MAKES NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING THE
PRODUCTS, THEIR FITNESS FOR ANY PURPOSE, THEIR QUALITY, THEIR
MERCHANTABILITY, TITLE, INFRINGEMENT, OR OTHERWISE.
5.2 LIMITATION OF LIABILITY
SUMMIT'S LIABILITY FOR ANY COPY OF ANY PRODUCT SHALL BE LIMITED TO THE
AMOUNT OF THE LICENSE FEE RECEIVED BY SUMMIT FOR SUCH COPY. IN NO EVENT
SHALL SUMMIT BE LIABLE FOR THE COST TO OBTAIN SUBSTITUTE SOFTWARE OR FOR ANY
INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES.
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6. ADDITIONAL OBLIGATIONS OF SDA
6.1 U.S. EXPORT CONTROL
SDA understands and acknowledges that Summit is subject to regulation by
agencies of the U.S. Government, including, but not limited to, the U.S.
Department of Commerce, which prohibit export, re-export or diversion of
products and technology except in compliance with all U.S. laws and
regulations. Any and all obligations of Summit to provide the Products,
documentation, maintenance, support, updates, or other technical assistance
shall be subject to all applicable United States laws and regulations as
shall from time to time be in effect. Such laws and regulations include laws
and regulations that govern the license, distribution and delivery of
software, technology and products by persons subject to the jurisdiction of
the United States, including the Export Administration Act of 1979, as
amended, any successor legislation, and the Export Administration Regulations
issued by the Department of Commerce, Bureau of Export Administration. SDA
agrees to cooperate with Summit, including, without limitation, providing
required documentation, in order to obtain export licenses or exemptions
therefrom. SDA warrants that it will fully comply with the Export
Administration Regulations and all other United States laws and regulations
in effect from time to time, governing the export, re-export or diversion of
products or technology.
6.2 ADEQUACY OF LOCAL LAW
Prior to shipping any units of the Products to any customer, SDA shall
confirm that the laws of each country (a) to which the Products will be
shipped, (b) in which the customer resides, and (c) in which the Products
will be installed, provide effective protection of Summit's exclusive rights
in and ownership of the Products and related intellectual property. SDA
shall also confirm that each such country is a party to the Berne Convention
and the legal systems of each such country provide SDA and Summit with
effective processes, procedures and means to effectively enforce Summit's
rights.
6.3 COMPLIANCE WITH LAW
SDA shall obtain at its expense all permits and other governmental
approvals required for the export, import, reexport, distribution,
installation and support of the Products distributed by SDA. SDA shall
comply with all laws applicable to the importation, reexport, distribution,
promotion, maintenance or support of the Products. SDA shall, at SDA's
expense, prepare any translations required by applicable law of the XXXX,
Extended Support Agreement, user interface, user manuals and other materials
relating to the Products. SDA hereby assigns to Summit all copyrights and
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other rights in any and all such translations. SDA shall promptly deliver to
Summit a copy of each such translation made by or for SDA.
7. TERM AND TERMINATION
7.1 TERM
Unless terminated earlier, this Agreement shall continue in force for
five years after the date of this Agreement. This Agreement may be renewed
for successive periods of one year by written agreement of the parties.
7.2 TERMINATION FOR CONVENIENCE
This Agreement may be terminated by either party for any reason or no
reason by giving the other party written notice one hundred eighty (180) days
in advance.
7.3 TERMINATION FOR CAUSE
If either part defaults in the performance of any provision of this
Agreement, then the non-defaulting party may give written notice to the
defaulting that if the default is not cured within thirty (30) days after
receipt of such notice, the Agreement will be terminated. If the
non-defaulting party gives such notice and the default is not cured during
the thirty-day period, then the Agreement shall terminate at the option of
the non-defaulting party at the end of that period.
7.4 TERMINATION FOR INSOLVENCY
This Agreement shall terminate, without notice, (a) upon the institution
by or against SDA of insolvency, receivership or bankruptcy proceedings or
any other proceedings for the settlement of SDA's debts, (b) upon SDA's
making an assignment for the benefit of creditors, or (c) upon SDA's
dissolution or ceasing to do business.
7.5 TERMINATION FOR CERTAIN CHANGES IN LAW
This Agreement shall terminate without notice, (a) if any circumstances,
legislation, currency exchange rules, or governmental action prevent SDA from
making payments to Summit in the United States or in United States currency,
provided, however, that termination under this Section shall not relieve SDA
of its payment obligations under this Agreement; or (b) upon the enactment of
any law, decree, or regulation by any governmental authority in the Territory
which enactment would impair or restrict (i) any right of Summit to terminate
this Agreement as herein provided, (ii) Summit's right, title or interest in
the Products or the intellectual
PAGE 9
property rights therein, or (iii) Summit's rights to receive payments under
this Agreement.
7.6 RETURN OF MATERIALS
All trademarks, trade names, patents, copyrights, designs, drawings,
formulas or other data, photographs, samples, literature, and marketing aids
of every kind shall remain the property of Summit. Within thirty (30) days
after the termination of this Agreement, SDA shall ship all such items in
SDA's possession to Summit, as Summit may direct. SDA shall not make, use,
dispose of or retain any copies of any confidential items or information.
Upon the termination of this Agreement, SDA shall cease to use any and all
trademarks, marks, and trade names of Summit. Upon termination of this
Agreement, SDA shall assign to Summit any and all registrations,
reservations, licenses or permits obtained by SDA or any agent or
subdistributor of SDA in connection with the distribution of any of the
Products anywhere in the Territory.
7.7 LIMITATION ON LIABILITY
In the event of termination by either party in accordance with any of
the provisions of this Agreement, neither party shall be liable to the other
because of such termination for compensation, reimbursement or damages on
account of the loss of prospective profits or anticipated sales or on account
of expenditures, inventory, investments, leases or commitments in connection
with the business or goodwill of Summit or SDA. Termination shall not,
however, relieve either party of obligations incurred prior to the
termination.
7.8 SURVIVAL OF CERTAIN TERMS
The provisions of Section 4.7, 5, 7.6, 7.7, 8, 9, and 11 shall survive
the termination of this Agreement for any season. All other rights and
obligations of the parties shall cease upon termination of this Agreement.
8. LIMITATION ON LIABILITY
8.1 LIMITATION OF LIABILITY
SUMMIT'S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR LICENSE OF THE
PRODUCTS SHALL BE LIMITED TO THE FEES PAID BY SDA FOR THE PRODUCTS. IN NO
EVENT SHALL SUMMIT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS.
PAGE 10
8.2 NO INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
IN NO EVENT SHALL SUMMIT BE LIABLE TO SDA OR ANY OTHER ENTITY FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, UNDER
ANY THEORY OF LIABILITY, EVEN IF SUMMIT WAS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
8.3 BINDING EFFECT OF LIMITATIONS ON LIABILITY
Summit is willing to enter into this Agreement only in consideration of
and in reliance upon the provisions contained in this Agreement limiting
Summit's exposure to liability. Such provisions constitute an essential part
of the bargain underlying this Agreement and have been reflected in the
license fees and other consideration agreed upon by the parties as set forth
in this Agreement.
9. PROPERTY RIGHTS AND CONFIDENTIALITY
9.1 PROPERTY RIGHTS
SDA agrees that Summit owns all right, title, and interest in the
Products, including all upgrades, corrections, releases and versions, and in
all of Summit's patents, trademarks, trade names, inventions, copyrights,
know-how, and trade secrets relating to the design, manufacture, operation or
service of the Products. The use by SDA of any of these property rights is
authorized only for the purposes herein set forth, and upon termination of
this Agreement for any reason such authorization shall cease. SDA
acknowledges and agrees that it shall have no access or right to the source
code to any of the Products.
9.2 LICENSE CONVEYS NO RIGHT TO MANUFACTURE OR COPY
The license of the Products to SDA is made subject to the condition
that such license does not convey any right, express or implied, to
manufacture, duplicate or otherwise copy or reproduce, reverse engineer,
disassemble, or decompile any of the Products. SDA shall take appropriate
steps with its customers, as Summit may request, to inform them of and ensure
compliance with the restrictions contained in this Section 9.2.
9.3 CONFIDENTIALITY
SDA acknowledges that by reason of its relationship to Summit hereunder
it will have access to certain information and materials concerning Summit's
business, plans, customers, technology, and products that are confidential
and of substantial
PAGE 11
value to Summit, which value would be impaired and cause irreparable harm to
Summit if such information were used or disclosed to third parties. SDA
agrees that it will not use in way for its own account or the account of any
third party, nor disclose to any third party, any such confidential
information revealed to it by Summit, including without limitation, the terms
and conditions of this Agreement, which shall be considered Summit
confidential information. SDA shall take every reasonable precaution to
protect the confidentiality of such information. Upon request by SDA, Summit
shall advise SDA whether or not it considers any particular information or
materials to be confidential. SDA shall not publish any technical
description of the Products beyond the description published by Summit
(except to translate that description into appropriate languages for the
Territory). In the event of termination of this Agreement, SDA shall not use
or disclose any confidential information of Summit, and SDA shall not
manufacture or have manufactured any devices, components or assemblies
utilizing any of Summit's confidential information.
10. TRADEMARKS AND TRADENAMES
10.1 USE
During the term of this Agreement, SDA shall have the right to indicate to
the public that it is an authorized distributor of the Products and to advertise
(within the Territory) such Products under the trademarks that Summit may
designate from time to time for use by SDA in marketing the Products ("Summit
Trademarks"). SDA shall not alter or remove any Summit Trademark from the
Products. Except for the limited right to use the Summit Trademarks set forth
in the preceding sentence, nothing in this Agreement shall be deemed to transfer
to SDA any right, title or interest in any Summit Trademark. At no time during
or after the term of this Agreement shall SDA challenge or assist any Person to
challenge Summit's sole and exclusive ownership of any Summit Trademark (or any
registration thereof) or attempt to register any trademark, xxxx or trade name
confusingly similar to any Summit Trademark.
10.2 APPROVAL OF REPRESENTATIONS
All representations of Summit's Trademarks that SDA intends to use shall
first be submitted to Summit for approval of design, color, and other details
or shall be exact copies of those used by Summit. If any of Summit's
Trademarks are to be used in conjunction with another trademark on or in
relation to the Products, then Summit's xxxx shall be presented equally
legibly, equally prominently, and of greater size than the other but
nevertheless separated from the other so that each appears to be a xxxx in its
own right, distinct from the other xxxx.
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11. GENERAL PROVISIONS
11.1 GOVERNING LAW AND ARBITRATION
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. The rights and obligations of the parties under this Agreement, and this
Agreement, shall be governed by and construed under the laws of the State of
Oregon and of the United States, without reference to conflict of laws
principles. Any dispute or claim arising out of or in connection with this
Agreement or the performance, breach or termination thereof, shall be finally
settled by binding arbitration in Portland, Oregon, under the Rules of
Arbitration of the International Chamber of Commerce (the "ICC Rules"), by three
arbitrators appointed in accordance with said rules. Any and all arbitrators
appointed to the ICC Rules shall be fluent in English, and all documents
submitted to the arbitration shall be in English or accompanied by an English
translation. Judgment on the award rendered by the arbitrators may be entered
in any court having jurisdictional thereof. Notwithstanding the foregoing,
either party may apply to any court of competent jurisdiction for injunctive
relief without breach of this arbitration provision.
11.2 FOREIGN CORRUPT PRACTICES ACT
In conformity with the United States Foreign Corrupt Practices Act and
with Summit's policies regarding foreign business practices, SDA and its
employees and agents shall not directly or indirectly make or offer payment,
promise to pay, authorize payment, offer a gift, promise to give, or
authorize the giving of anything of value for the purpose of influencing an
act or decision of an official of any government within the Territory
(including a decision not to act) or inducing such a person to use his or her
influence to affect any governmental act or decision in order to assist
Summit in obtaining, retaining or directing any such business.
11.3 ENTIRE AGREEMENT
This Agreement (together with the Exhibits and related agreements
referred to in this Agreement) sets forth the entire agreement and
understanding of the parties relating to the subject matter herein, merges
all prior discussions between them, and supersedes all prior agreements
between them relating to the subject matter of this Agreement. No
modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, shall be effective unless in writing signed by the
party to be charged.
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11.4 NOTICES
Any notice required or permitted by this Agreement shall be in writing,
in the English language, and shall be sent by prepaid registered or certified
mail, return receipt requested, addressed to the other party at the address
shown at the beginning of this Agreement or at such other address for which
such party gives notice hereunder. Such notice shall be deemed to have been
given seven (7) days after deposit in the mail.
11.5 FORCE MAJEURE
Nonperformance of either party shall be excused to the extent that
performance is rendered impossible by strike, fire, flood, governmental acts or
orders or restrictions, failure of suppliers, or any other reason where failure
to perform is beyond the reasonable control of the nonperforming party. The
delayed party's time for performance or cure will be extended for a period equal
to the duration of the cause or ninety (90) days, whichever is less.
11.6 NONASSIGNABILITY AND BINDING EFFECT
A mutually agreed consideration for Summit's entering into this Agreement
is the reputation, business standing, and goodwill already honored and enjoyed
by SDA under its present ownership and, accordingly, SDA agrees that its rights
and obligations under this Agreement may not be transferred or assigned directly
or indirectly without the prior written consent of Summit. Subject to the
foregoing sentence, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and assigns.
11.7 LEGAL EXPENSES
The prevailing party in any arbitration or other legal action brought by
one party against the other and arising out of this Agreement shall be entitled,
in addition to any other rights and remedies it may have, to reimbursement for
its expenses, including court costs and reasonable attorneys' fees, including
attorneys' fees incurred in any appeal.
11.8 SEVERABILITY
If for any reason an arbitrator or 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.
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11.9 EQUITABLE RELIEF
SDA acknowledges that SDA will have access to and become acquainted with
confidential and proprietary information of Summit, the unauthorized use or
disclosure of which would cause irreparable harm and significant injury which
would be difficult to ascertain and which would not be compensable by damages
alone. SDA agrees that Summit shall have the right to enforce provisions of
this Agreement pertaining to Summit's intellectual property by injunction,
specific performance or other equitable relief without prejudice to any other
rights and remedies that Summit may have for SDA's breach of this Agreement.
11.10 NO WAIVER
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.
11.11 HEADINGS
The headings used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this Agreement.
11.12 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and which collectively constitute one instrument.
SUMMIT DESIGN, INC.
By: /s/ C. XXXXXX XXXX
------------------------------
Title: CHIEF FINANCIAL OFFICER
---------------------------
Date Signed: MAY 12, 1998
----------------------
SUMMIT DESIGN ASIA, LTD.,
a Hong Kong corporation
By: /s/ X.X. Xxxx
------------------------------
Title: Director
Date Signed: MAY 12, 1998
---------------------
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By: /s/ X.X. Xxxx
-----------------------------
Title: Director
Date Signed: MAY 12, 1998
--------------------
PAGE 16
EXHIBIT A
to
International Distributor Agreement
PRODUCTS AND LICENSE FEES
PRODUCT PER UNIT FEES (U.S. DOLLARS)
--------------------------------------- ------------------------------------------
Visual HDL ***
Visual Simulate HDL
Visual Simulate Verilog
T2G
Visual IP
HDL Score
V-Cpu
Virsim
Rapid Path
New Releases ***
Upgrades of Existing ***
End-User Customers
to a New Release
Demonstration copies ***
Summit's Standard Form of ***
Annual Software Maintenance Program
***
*** - Certain information has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to
the omitted portions.
PAGE 17
EXHIBIT B
to
International Distributor Agreement
TERRITORY
SDA's Territory shall consist of all Asian countries (except Japan), and
Australia and New Zealand:
PAGE 18
EXHIBIT D
to
International Distributor Agreement
FORM OF END-USER SOFTWARE LICENSE AGREEMENT
PAGE 19
