Exhibit 10.2
Agreement No. PSAL-00IAS0324
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CADENCE DESIGN SYSTEMS, INC.
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement"), made and entered into as of
24th March 2000 ("Effective Date"), is by and between Cadence Design Systems,
Inc., with a place of business at 000 Xxxxx Xxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxxxx
00000 X.X.X. ("Cadence"), and IAS Communications, Inc. with a place of business
00000 Xxxxxxxxxxx Xxx, Xxxxxxxx, B. C. Canada (the "Customer"). This Agreement
relates solely to the provision of consulting services for the purpose of
advising Customer of process inefficiencies in Customer's processes or the
provision of training or consulting services concerning usability issues of
Cadence software products. However, this Agreement does not cover the provision
of other electronic design automation consulting services, including but not
limited to the creation of electronic designs, nor the provision or licensing of
any Cadence software programs.
1. Definitions.
In this Agreement, unless the context otherwise requires, the following terms
shall have the following meanings:
"Confidential Information" means any information written or otherwise disclosed
in any medium by one party to the other under this Agreement and marked or
otherwise designated as "Confidential" or is clearly by its nature confidential.
However, Confidential Information shall not include any information that: (a) is
or becomes a part of the public domain through no act or omission of the other
party or otherwise available to the public other than by breach of this
Agreement; or (b) was in the other party's lawful possession prior to the
disclosure and had not been obtained by the other party either directly or
indirectly from the disclosing party; or (c) is lawfully disclosed to the other
party by a third party without restriction on disclosure; or (d) is
independently developed by the other party without access to the Confidential
Information.
"Deliverables" means the specific materials, information, reports or other
deliverables that are provided by Cadence to Customer as a result of performing
the Services and which are specified in the Statement of Work.
"IP Rights" means semiconductor topography rights, rights in mask works
conferred by the U.S. Semiconductor Chip Protection Xxx 0000 or any modification
or re-enactment thereof, patents, copyrights, trade marks, trade secrets, design
rights whether registered or unregistered and including any application for
registration of any of the foregoing and all rights or forms of protection of a
similar nature or having equivalent or similar effect to any of these which may
subsist anywhere in the world;
"Licensed Technology" means the information, materials and technology owned or
controlled by Customer which Cadence reasonably requires to perform the
Services;
"Residual Information" means information in the non-tangible form of generic
knowledge and know-how that is or may be retained by persons who have performed
the Services and/or have had access to confidential information of the other
party, including ideas, concepts or techniques contained therein;
"Services" means the professional consulting services described in the Statement
of Work;
"Statement of Work" means the description of the Services and Deliverables to be
provided hereunder from time to time substantially in the form set out in
Schedule 1 of this Agreement. This term may include single or multiple
Statements of Work.
2. Professional Services.
2.1 Cadence shall perform the Services described in each Statement of Work in
accordance with this Agreement using such resources as Cadence deems necessary.
2.3 The Customer agrees that Cadence's provision of the Services depends upon
the Customer's timely cooperation and assistance as Cadence may require.
Cadence shall bear no liability or otherwise be responsible for delays in the
provision of the Services or any part thereof caused by the Customer's failure
to provide such cooperation or assistance.
2.4 Customer agrees to provide Cadence with the Licensed Technology.
3. Fees and Expenses.
3.1 In consideration of Cadence performing the Services, Customer undertakes
to pay Cadence the fees and expenses set out in accordance with and in the
manner described in the Statement of Work.
3.2 The amounts payable to Cadence for the Services are exclusive of any sales
or use tax,
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deductions, withholding or other taxes or governmental charges. Customer shall
be responsible for payment of all such taxes or charges except for any taxes
based solely upon Cadence's net income.
3.3 All fees payable shall be due and payable when invoiced, and shall be
deemed overdue if they remain unpaid thirty (30) days after they become payable.
Overdue amounts shall accrue interest at the rate of two (2) per cent per month.
4. Intellectual Property Rights.
4.1 In providing the Services, Cadence will exercise and use certain of its IP
Rights. Except as otherwise expressly provided, the provision of the Services
shall give neither Cadence nor the Customer any rights of ownership in or to the
IP Rights of the other party. All IP Rights that are owned or controlled by a
party at the commencement of this Agreement shall remain under the ownership or
control of such party throughout the term of this Agreement and thereafter.
Further, unless expressly provided herein, no license is granted under the IP
rights of a party to the other party hereto.
4.2 Customer and Cadence hereby acknowledge and agree that no inventions,
improvements or innovations, whether derived from either, both or neither
party's IP Rights, (collectively, an "Innovation") shall be created, conceived,
developed or first reduced to practice during the course of this Agreement. In
the event that an Innovation is created, conceived, developed or first reduced
to practice during the course of this Agreement, or either or both parties
believe that such an occurrence is reasonably likely, the parties agree to work
promptly and in good faith to determine the relative ownership of such
Innovations prior to commencement of any further Services by Cadence with
respect thereto.
4.3 Subject to terms and conditions of this Agreement, Customer hereby grants
to Cadence a royalty-free, non-transferable, non-exclusive, world-wide, fully
paid, limited license to use and practice the Licensed Technology, and all IP
Rights contained therein, solely for the term of this Agreement and exclusively
in order for Cadence to perform the Services.
5. Warranties.
5.1 Cadence warrants that the Services provided hereunder will be performed in
a professional manner consistent with the quality of Cadence's performance of
services for similar types of engagements.
5.2 THE WARRANTY ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR
REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
SATISFACTORY QUALITY, REASONABLE SKILL AND CARE AND FITNESS FOR A PARTICULAR
PURPOSE WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT
PERMISSIBLE BY LAW.
5.3 In order to receive warranty remedies, deficiencies in the Services must be
reported to Cadence in writing as soon as reasonably practicable and, in any
event, within ninety (90) days of delivery of each respective milestone
Deliverable as specified in the Statement of Work. The Customer's sole remedy
shall be to have such deficiencies remedied as set forth in the Statement of
Work or to receive a refund of the pro rata amount of the fees allocable to such
Services, at Cadence's sole option.
6. Limitations on Liability.
6.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, OR
LOST PROFITS OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT NEGLIGENCE,
STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. CADENCE SHALL NOT BE LIABLE FOR ANY LOSS OR
DAMAGES CONCERNING ANY PRODUCTS, DEVICES, SOFTWARE OR APPLICATIONS DEVELOPED
THROUGH USE OF CADENCEOS PRODUCTS, THE DELIVERABLES OR THE SERVICES.
6.2 CADENCE'S AGGREGATE CUMULATIVE LIABILITY TO CUSTOMER OR CUSTOMER
INDEMNITEES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE
TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO CADENCE UNDER THE APPLICABLE STATEMENT
OF WORK.
6.3 No action, regardless of form, arising from this Agreement may be brought
by either party more than one (1) year after the cause of action has accrued,
except that an action for non-payment may be brought within one (1) year after
the later of the date of last payment or the date such unpaid amount should have
been paid.
7. Confidentiality and Non-Use.
7.1 Each party agrees that, for a period of three (3)
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years from receipt, to hold the other party's Confidential Information in strict
confidence, not to disclose such Confidential Information to third parties not
authorized by the disclosing party to receive such Confidential Information, and
to disclose such Confidential Information only to its employees with a need to
know such Confidential Information and who are placed under express obligations
of confidentiality not to use such Confidential Information for any purpose
except as expressly permitted hereunder. Each party agrees to take reasonable
steps to protect the other party's confidential information to ensure that such
Confidential Information is not disclosed, distributed or used in violation of
the provisions of this Agreement. The foregoing prohibition on disclosure of
Confidential Information shall not apply to the extent that the Confidential
Information is (a) required to be disclosed by the receiving party as a matter
of law or by order of a court, provided that the receiving party uses reasonable
efforts to provide the disclosing party with prior notice of such obligation to
disclose and reasonably assists in obtaining a protective order therefor (b) is
or becomes a part of the public domain through no act or omission of the other
party or was otherwise available to the public other than by breach of this
Agreement; or (c) was in the other party's lawful possession prior to the
disclosure and had not been obtained by the other party either directly or
indirectly from the disclosing party; or (d) is lawfully disclosed to the other
party by a third party without restriction on disclosure; or (e) is
independently developed by the other party without access to the Confidential
Information.
7.2 Subject to Cadence's compliance with the Confidential Information
provisions herein, Customer acknowledges and agrees that Cadence and its
employees may utilize for any purpose any Residual Information resulting from
performing the Services and/or resulting from access to Customer's Confidential
Information.
8. Right to Perform Consulting Services For Others.
Subject to Cadence's compliance with the confidentiality provisions of this
Agreement, nothing herein shall restrict or limit (a) Cadence from performing
design consulting or other Services to any other entity in any industry,
including the semiconductor and electronics industries, or (b) Cadence's right
in its sole discretion to develop, use, market, license, offer for sale, or sell
any software, application, product or service. The Customer agrees that Cadence
and its employees may provide Services similar in nature to the Services for any
third parties both during and after the provision of the Services.
9. Term and Termination.
9.1 This Agreement commences on the date of commencement of the Services and,
unless terminated earlier, shall continue until completion of the Services. The
provision of the Services may be terminated by Cadence forthwith if Customer
defaults in the timely payment of any monies due to Cadence and fails to cure
such breach within ten (10) days from the date of receipt by Customer of any
notice of such breach
9.2 The terms of Sections 3, 4, 5, 6, 7, 8 and 11 of this Agreement shall
survive termination or expiration of the Services. Within thirty (30) days of
termination of the Services for any reason, Cadence shall submit to the Customer
an itemized invoice for any fees or expenses accrued and unpaid in respect of
the Services prior to the date of such termination.
10. Dispute Resolution.
10.1 The parties shall attempt in good faith to resolve any dispute arising in
connection with this Agreement informally according to the following procedure.
Upon written request of a party identifying a dispute to be resolved, each party
will designate a management representative with the responsibility and authority
to resolve the dispute. The designated management representatives shall meet
preliminarily within fifteen (15) days after the request is received from the
requesting party. At this first meeting, the designated management
representatives shall identify the scope of the dispute and the information
needed to discuss and attempt to resolve the dispute. These management
representatives shall then gather relevant information regarding the dispute and
shall meet to discuss the issues and negotiate in good faith to resolve the
dispute. Such second meeting shall occur within fifteen (15) days of the first
meeting.
10.2 Nothing in this Section 10 shall restrict the right of either party to
apply to a court of competent jurisdiction for injunctive relief or damages at
any time. However, the right of either party to file a lawsuit does not
abrogate each party's obligations under Section 10.1 above. Moreover, a party
which elects to file a lawsuit shall provide the written notice identified in
Section 10.1 to the other party at the same time the lawsuit is filed with a
court.
11. General.
11.1 Independent Contractors. Cadence shall perform the Services as an
independent contractor, and nothing contained in this Agreement or any Statement
of Work attached hereto shall be construed to create or imply a joint venture,
partnership, principal-agent or employment relationship between the parties.
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11.2 Governing Law and Venue. This Agreement will be governed by the
procedural and substantive laws of the United States and the State of
California, without regards to its conflicts of laws principles. This Agreement
is prepared and executed and shall be interpreted in the English language only,
and no translation of the Agreement into another language shall have any effect.
The parties agree that the United Nations Convention on Contracts for the
International Sale of Goods (1980) is specifically excluded from and shall not
apply to this Agreement. Each party agrees that any claim, action or lawsuit
arising out of or related to this Agreement shall be brought or filed in the
United States District Court for the Northern District of California or the
California Superior Court for the County of Santa Xxxxx, and, in such event,
each party agrees to submit to such jurisdiction.
11.3 Notices. Notices to be given or submitted by either party to other
pursuant to this Agreement shall be in writing, deemed effective upon receipt,
sent by prepaid certified mail or overnight delivery service and directed in the
case of the Customer to the address above, and in the case of Cadence to: 000
Xxxxx Xxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, X.X.X.
11.4 Severability. If any term or provision of this Agreement is determined to
be invalid or unenforceable for any reason, it shall be adjusted rather than
voided, if possible, to achieve the intent of the parties to the extent
possible. In any event, all other terms and provisions shall be deemed valid and
enforceable to the maximum extent possible.
11.5 Force Majeure. Cadence shall not be liable for any loss or damage,
arising from delay due to causes beyond its reasonable control.
11.6 Assignment. Customer shall not assign, delegate, or subcontract any
portion of its rights, duties, or obligations under this Agreement and any
attempt to do so shall be void. As used in this Agreement, the following shall
be deemed an assignment: (1) any dissolution, merger, consolidation, or other
reorganization of or affecting the Customer, whether or not Customer is the
surviving corporate entity; and (2) the sale or transfer, by one or more
transactions, of stock possessing more than fifty percent (50%) of the total
combined voting power of all classes of Customer's capital stock issued,
outstanding and entitled to vote for the election of its directors.
11.7 Complete Agreement. Each party acknowledges that it has read, understands
and agrees to be bound by this Agreement and that this Agreement including
Statements of Work agreed from time to time under the terms of this Agreement is
the complete and exclusive statement of the agreement between the parties
regarding the subject matter hereof, which supersedes all proposals, oral or
written, and all other communications between the parties relating to such
subject matter.
11.8 Modification. Each party agrees that any terms and conditions of any
purchase order or other instrument issued by Customer in connection with the
Agreement that are in addition to or inconsistent with the terms and conditions
of this Agreement shall be of no force or effect. This Agreement may be modified
only by a written instrument duly executed by an authorized representative of
Cadence and Customer.
11.9 Waiver. The failure of a party to enforce any provision of this Agreement
shall not constitute a waiver of such provision or the right of such party to
enforce such provision or any other provision.
11.10 Conflict. If there is any conflict between the terms of the this
Agreement and the Statement of Work or the terms of any subsequent attachment
hereto, the terms of this Agreement shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
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Executed by IAS Communications, Inc.:
Signature: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: President
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Date: March 22, 2000
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Executed by Cadence Design Systems, Inc.:
Signature: /s/ X. X. Xxxxx McKerthen
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Name: X.X. Xxxxx McKerthen
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Title: Sr. VP's General Counsel
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Date: 24 March 2000
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