EXHIBIT 10.41
OEM AGREEMENT
BETWEEN
SYNOPSYS, INC.
AND
VIEWLOGIC SYSTEMS, INC.
(VCS)
This OEM Agreement ("Agreement") is entered into and effective this 2nd day of
October, 1998 ("Effective Date"), by and between Synopsys, Inc., a Delaware
corporation with principal offices at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Synopsys"), and Viewlogic Systems, Inc., a Delaware
corporation, with principal offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇-▇▇▇▇ (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 an OEM version
of Synopsys' VCS, VCSi, and VCS Express products integrated with the Fusion
product line. 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 documents
furnished by OEM Partner to Synopsys hereunder shall be deemed
"Confidential Information" of OEM Partner hereunder. Notwithstanding
the above, Confidential Information shall not include
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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 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 disclosed 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 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 OEM versions of Synopsys' VCS, VCSi, and VCS
Express products which are integrated with the Fusion product line 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. The term "Licensed Product" shall be deemed to
be synonymous with the term Licensed Software.
1.8 "OEM Version" means a version of the Licensed Software which includes
all of the features and functionality of the Synopsys version of the
VCS, VCSi and VCS Express products as of the Effective Date, plus
updates and enhancements which may be made thereto, but excluding: (i)
features specific to other Synopsys OEM partners; (ii) interfaces or
features specific to integration with other Synopsys products; (iii)
features
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specific to integration with circuit design; (iv) the IPX
module; (v) the Synopsys graphical user interface; and/or (vi) any
other features which, in Synopsys reasonable determination, deems not
applicable to the systems design market. During the term of this
Agreement, OEM Partner may request the addition to the OEM Version of
any excluded features and Synopsys agrees to discuss the same in good
faith.
1.9 "RESELLER" means a distributor, original equipment manufacturer,
systems integrator or reseller who is authorized to resell or
distribute software.
1.10 "UPDATES" means an embodiment of the Licensed Software that delivers
minor improvement, incremental features or enhancements of existing
features, and/or functionality to the Licensed Software.
1.11 "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, and except for the Fusion VCS Licensed Product which may only
be distributed by OEM Partner, or indirectly through any and all OEM
Partner normal distribution channels. Except for the Licensed Product
Fusion VCS, OEM Partner may distribute the Licensed Software to or
through any other 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 RESTRICTION.
(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.
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(b) End Users may use the Licensed Software only in accordance with
provisions of a license agreement substantially in the form of that
attached hereto as Exhibit C.
(c) OEM Partner will not remove or alter any proprietary notices on or in
the Licensed Software. OEM Partner agrees to abide by the restrictions
set forth in Exhibits A and B in connection with each item of Licensed
Software.
2.3 DEMONSTRATION AND EVALUATION. OEM Partner will be entitled to
distribute, itself or through OEM Partner Resellers (except for the
Fusion VCS Licensed Product which may only be distributed by OEM
Partner), 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") 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 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
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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. 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 and maintenance
or maintenance renewal sold during the period, and End User information
as described in Exhibit B. In addition, OEM Partner shall deliver a
quarterly 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
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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 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
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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
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 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.
5.4 EARLY NOTICE. Synopsys shall provide OEM Partner with early notice of
Licensed Product release schedules and product plans 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
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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 Resellers to Synopsys'
support organization. Synopsys shall designate a corporate applications
engineer as an OEM Partner point of contact 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 two (2) 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; or
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.
(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.
7.4 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
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distribution of the Licensed Software and all outstanding monies due to
Synopsys for Licensed Software 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
fights and obligations of the parties shall cease upon expiration or
termination of this Agreement.
8. LIMITATION OF LIABILITY
8.1 DIRECT DAMAGE. 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/OR 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
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
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(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 all
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 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 of the applicable 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.
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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 MATERIAL. 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 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.
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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.
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.
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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 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.
12.5 INDEPENDENT CONTRACTORS. 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 would cause irreparable injury for which monetary damages would
not be an adequate remedy and the non-breaching party shall be entitled
to equitable relief in addition to any remedies it may have hereunder
or at law.
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, severe 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
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13
outside the United States except as authorized and as permitted by the
laws and outside 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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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives:
VIEWLOGIC SYSTEMS, INC. SYNOPSYS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- -----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------- -----------------------------
Title: President Title: Vice President General Counsel
------------------------ -------------------------------
Date: 10-2-98 Date: 10-2-98
------- -------
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EXHIBIT A
LICENSED SOFTWARE DESCRIPTION AND SPECIFICATIONS
1. Licensed Software shall consist of the following components:
FUSION VCS (EXCLUDING THE IPX MODULE)
FUSION VCS EXPRESS
FUSION VCSI
2. WITH REGARD TO THE FUSION VCS LICENSED PRODUCT:
OEM Partner may sell a maximum of five (5) seats of Fusion VCS per
end-user purchase order and the total Fusion VCS list price must be
less than fifty percent (50%) of the total dollar value of such
purchase order.
On a quarterly basis, OEM Partner must provide Synopsys with end-user
names and installation addresses for each Fusion VCS license sold
during said quarter.
All Fusion VCS orders require Synopsys' approval prior to acceptance.
Fusion VCS licenses may only be sold directly by OEM Partner.
OEM Partner will provide the GUI for the Fusion VCS Licensed Product.
Node-Locked versions of Fusion VCS may only be sold for the PC
Platform.
3. WITH REGARD TO THE FUSION VCSi LICENSED PRODUCT:
Licenses of Fusion VCSi for the PC may be sold bundled or unbundled.
Fusion VCSi for the UNIX environment may only be sold bundled with
Workview Office, Intelliflow, ISIS, Powerview or Fusion (and OEM
Partner's successor products).
OEM Partner will provide the GUI for the Fusion VCSi Licensed Product.
Fusion VCSi licenses may be sold by OEM Partner's resellers or
distributors.
Node-Locked versions of Fusion VCSi may only he sold for the PC
Platform.
4. WITH REGARD TO THE FUSION VCS EXPRESS LICENSED PRODUCT:
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16
Licenses of Fusion VCS Express may be sold for the PC platform only and
may be sold unbundled.
Fusion VCS Express licenses may be sold by OEM Partner's resellers or
distributors.
OEM Partner will supply the GUI for this product.
Node-Locked versions of Fusion VCS Express may only be sold for the PC
Platform.
5. 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.
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EXHIBIT B
LICENSED SOFTWARE AND MAINTENANCE FEES
1. OEM Partner agrees to pay to Synopsys the following royalties for all
sales of the Licensed Software and maintenance.
FOR THE FUSION VCS LICENSED SOFTWARE AND MAINTENANCE:
OEM Partner shall pay Synopsys a royalty of seventy percent (70%) of
the then current Synopsys Suggested List Price for the Licensed
Software and Maintenance.
FOR THE FUSION VCSi LICENSED SOFTWARE AND MAINTENANCE:
For the Fusion VCSi Licensed Software, OEM Partner shall pay Synopsys
the greater of (a) a royalty of forty percent (40%) of the amount
received by OEM Partner for the Licensed Software; or (b) thirty-two
percent of the Synopsys Suggested List Price set forth below. For
Maintenance for all new and renewal End Users, OEM Partner shall pay
Synopsys six percent (6%) of the Synopsys Suggested List Price for the
VCSi Licensed Software.
FOR THE FUSION VCS EXPRESS LICENSED SOFTWARE AND MAINTENANCE:
For the Fusion VCS Express Licensed Software, OEM Partner shall pay
Synopsys a royalty of the greater of: (i) forty percent (40%) of the
amount received by OEM Partner; or (ii) twenty-eight percent (28%) of
the Synopsys Suggested List Price set forth below. For Maintenance for
all new and renewal End Users, OEM Partner shall pay Synopsys, six
percent (6%) of the Synopsys Suggested List Price for the VCS Express
Licensed Software.
2. REPORTING. OEM Partner shall prepare a quarterly 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 this Exhibit and the Agreement, 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,
identifying each Licensed Product sold or distributed, the purchase
order number, the date of the transaction, the OEM Partner catalog
number, the price paid for the transaction and the fee paid to
Synopsys for each such license, except that OEM Partner must
additionally provide Synopsys with end-user names and installation
addresses for each Fusion VCS license sold during said quarter. In
addition, OEM Partner must provide Synopsys with end- user names and
locations for confirmation purposes for any upgrades made by Synopsys
under Section 5 of this Exhibit.
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3. UNIVERSITIES. At OEM partner's option, and for the Fusion VCS Express
product only, from the Effective Date until March 31, 1999, OEM Partner
will not owe Synopsys royalties for any Fusion VCS Express product
provided to universities who agree to use such Fusion VCS Express for
educational purposes only ("Educational Users").
Thereafter, OEM Partner will have the opportunity to provide an
unlimited number of copies of the Fusion VCS Express 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 to which the Fusion VCS Express is provided. OEM
Partner will provide Synopsys with 90 days prior notice of its
intention not to renew this option.
There will be no discounts on the sale of the Fusion VCSi or Fusion VCS
products to universities.
4. UPGRADES. In the event that (a) an End User who licensed a copy of
Fusion VCSi from OEM Partner or one of its Resellers licenses an
upgrade to VCS from Synopsys, or (b) an End User who licensed a copy
of Fusion VCS Express from OEM Partner or one of its Resellers
licenses an upgrade to VCS or VCSi from Synopsys, or (c) an End User
who licensed the Node-Locked version of Licensed Software from OEM
Partner or one of its Resellers licenses an upgrade to the Floating
version of the Licensed Software from Synopsys, then Synopsys will
give such End User a credit on such purchase for the full amount paid
by OEM Partner or its Reseller for the lower version of such Licensed
Software.
In the event that the End User licenses the upgrade from OEM Partner or
its Reseller, then OEM Partner's royalty to Synopsys for the higher
version will be reduced by any amount already paid to Synopsys in
respect of the lower version.
5. LIST PRICES. As of the date of this Agreement, Synopsys' North America
Suggested List Prices for the Licensed Software are as follows:
PRODUCT NODE-LOCKED FLOATING
Fusion VCS $30,000 $40,000
Fusion VCSi $15,000 $20,000
Fusion VCS Express $8,000 $12,000
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For sales made outside of North America, OEM Partner shall increase the
Synopsys North America Suggested List Prices proportionately in
accordance with the percentage of OEM Partner's international uplift.
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EXHIBIT C
VIEWLOGIC END USER LICENSE AGREEMENT
(SEE ATTACHED)
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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 shah 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 my 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 Licensee under this Agreement. Such software may
include software provided by Viewlogic's suppliers for sublicensing
hereunder, as well as software that Viewlogic owns. In accordance 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 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
1 DECEMBER 1995
22
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 supplies 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 Viewlogic'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 Licensee's
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 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
1 DECEMBER 1995
23
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) we 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 after 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 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.
1 DECEMBER 1995
24
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 "limited rights" to the
Software, and concerning the documentation the government is acquiring
only "limited 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.
1 DECEMBER 1995
25
