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Exhibit 10.11
VOLUME PURCHASE AGREEMENT
This Volume Purchase Agreement (the "VPA") number AMD9598 with an effective Date
of January 1, 1995, is made by and between EPIC Design Technology, Inc. a
company with its principal place of business at 2901 Tasman Drive, Suite 212,
Santa Clara, CA 95054, (EPIC) and Advanced Micro Devices, Inc. ("AMD" or
"Licensee"), a company with its principal place of business at One AMD Place,
Sunnyvale, CA 94088-3453.
EPIC and AMD agree that the provisions contained in this VPA shall govern the
licensing of EPIC Products (defined in Exhibit A) during the term of this VPA.
Software Products are licensed and not sold: any references to the sale or price
of any software products or any copy thereof refers to the license or license
fee.
The following are included by reference and are integral parts of this
VPA
- Exhibit A Product and Pricing Schedule
- Exhibit B EPIC Software License Agreement and
Maintenance Agreement
- Exhibit C Purchase and Acquisition Schedule
- Exhibit D AMD Maintenance & Total Support Program
EPIC agrees to offer AMD appropriate discounts for software tools purchased as
defined in Exhibit C. AMD (CTS) agrees to provide a central pool of EPIC
licenses and fund a total agreed to support program which facilitates the
successful use of EPIC tools within the AMD standard methodology.
1.0 DEFINITIONS
1.1 PRODUCTS: means EPIC software and applicable support
listed in Exhibit A, Product and Pricing Schedule.
1.2 DISCOUNT: means the discount as specified later in the
VPA as applied against the applicable Product and
Pricing Schedule (Exhibit A).
1.3 DISCOUNT LEVEL: means the discount levels specified in
Exhibit A and Exhibit C of this VPA. The Discount Level
is valid only during the term and under the conditions
of this VPA.
1.4 LIST PRICE: means the list price for the Products and
Services specified in Exhibit A.
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1.5 PEAK DEMAND LICENSES ("PDL"): means a floating license
for specific EPIC software. A PDL license has a limited
duration of one year. Monthly utilization reports will
be provided by the AMD Site Manager. Fees for
utilization of the PDL's licenses will be paid on a
quarterly basis according to the following formula
outlined below.
[*]
[*]
Utilization reports for all products will be produced
[*] and submitted to EPIC [*] monthly by the AMD Site
Manager.
1.6 PURCHASED SW: means the software that AMD will purchase
upon signing this VPA as listed in Exhibit C.
1.7 AMD TOTAL SUPPORT SERVICES PROGRAM: means a set of
services EPIC will provide AMD on a yearly basis. The
particulars of the ATS program are detailed in Exhibit
D.
The AMD Total Support program is based on the software
already owned by AMD, the software acquired under the
VPA and the additional software purchased as described
in Section 1.6.
1.8 THREE YEAR PROGRAM: means the payment, discount and
acquisition schedule referred to as the Three Year
Program in Exhibit C. AMD has the option to acquire Peak
Demand Licenses (defined in section 1.5 and Exhibit C).
AMD has the option to purchase additional software
licenses at any time during the term of this VPA at
prices listed in Exhibit A and at discount levels
described in Exhibit C.
2.0 SCOPE AND LICENSE GRANT
2.1 SCOPE: This VPA sets forth the terms and conditions for
volume discounts for Products and related services off
the List Price. No rights are granted to AMD to resell,
relicense, sub license, or assign any products purchased
under this VPA.
2.2 AGREEMENTS: the Product and all applicable support
services shall be licensed to AMD by EPIC in accordance
with the
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* Confidential Treatment Requested
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Computer Software End User License Agreement and the
Computer Software Maintenance Agreement, both of which
are attached as Exhibit B.
2.3 EPIC-AMD U.S.A. PRICING: The terms of this VPA apply
only to AMD sites located in the continental United
States of America.
3.0 DISCOUNT LEVELS FOR PRODUCT AND APPLICABLE CONDITIONS
3.1 DISCOUNTS FROM CURRENT LIST PRICE: Discounts and List
Prices during the Effective Term are defined in Exhibit
C and Exhibit A. EPIC agrees that the amounts charged by
it to AMD for product and services purchased hereunder
do not currently exceed amounts normally charged by EPIC
as referenced in Exhibit A.
3.2 REHOSTING AND RECONFIGURATION FEES: Rehosts and
reconfigurations are limited to [*] at [*] and apply
only to purchased licenses.
3.3 INITIAL ORDER: Upon execution of this VPA, AMD will
submit initial purchase orders for amounts as specified
in Exhibit C as well as the AMD Total Support Program
and Peak Demand License (PDL).
3.4 PRODUCT ACQUISITIONS SCHEDULE: EPIC shall provide
product within thirty (30) days after receipt of the
purchase order for the initial order(s).
4.0 PAYMENT TERMS
4.1 SHIPPING AND PAYMENT TERMS: All shipping and payments
terms are contained in the Computer Software End-User
Agreement and Computer Software Maintenance Agreement
between EPIC and AMD.
4.2 U.S.A. CURRENCY: All payments will be made in lawful
currency of the United States of America.
4.3 PAYMENT TERMS FOR AMD TOTAL SUPPORT PROGRAM: Payment for
the Support Services will be made on a quarterly basis
for the term of this VPA.
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* Confidential Treatment Requested
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4.4 SHIPMENT DESTINATIONS: All media, documentation, and
keys will be shipped to a single designated contact at
both AMD Sites (Texas and California). EPIC will provide
six (6) sets of documentation for each site no later
than thirty days after shipment.
4.5 SHIPMENT PRIORITY: AMD understands that EPIC has
government customers who submit orders that carry
national security rating that by federal law mandate
priority shipment before commercial order can be
shipped. However, AMD shall be on EPIC "first ship" list
for commercial customers for the term of this agreement.
5.0 OTHER PRODUCTS
5.1 EPIC LICENSE PRODUCTS ONLY: It is understood and agreed
that the discounts and services offered to AMD under the
terms of this VPA apply to EPIC Products only, and only
those Products which do not incorporate any third-party
Original Equipment's Manufacturer's (OEM) software,
firmware, and/or hardware. Such OEM Products and any
third-party products sold or sub licensed by EPIC under
another manufacturer's label are not included in the
Discount Level offered to AMD. Such products will be
sold or sub licensed to AMD in accordance with
separately negotiated agreements.
5.2 CURRENT/FUTURE PRODUCTS: This VPA applies only to the
current EPIC products and services listed on Exhibit A.
Future EPIC products and services may be added to this
VPA by a written amendment to this VPA and signed by
both parties.
6.0 RELEASE OF INFORMATION
6.1 NO RELEASE OF INFORMATION: AMD and EPIC shall not
provide, disclose, transfer, or otherwise made available
the details of this VPA to any third party without the
express prior written consent of EPIC and AMD except:
(i) to employees of AMD and EPIC to whom disclosure is
necessary in order to effectuate the purposes set forth
in this VPA, or (ii) in response to a lawful order of a
court of competent jurisdiction.
7.0 ASSIGNMENT
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7.1 ASSIGNMENT: Neither this VPA nor any rights or
obligations of it, in whole or in part, shall be
assignable or otherwise transferable by AMD or EPIC. Any
unauthorized attempt by AMD and EPIC to assign or
transfer this VPA or any rights or obligations of it
shall be null and void except where mergers or
acquisitions may occur.
8.0 TERM AND TERMINATION
8.1 TERM: This VPA is effective for three years from 1
January 1995 through 31 December 1997. This VPA will be
reviewed annually. All orders against the VPA must be
received by EPIC before the end of the first calendar
quarter of each renewed year (i.e., 3/31/96, 3/31/97
respectively). Delivery of the Product must occur within
thirty (30) days from receipt of purchase order(s).
8.2 EXPIRATION: Upon the expiration of this VPA, EPIC and
AMD may elect to (i) enter into negotiation for the
creation of a new VPA, similar in form and content to
this VPA, or (ii) not enter into a future VPA
arrangement.
8.3 TERMINATION: In the event of a material breach by AMD of
the Computer Software End-User License Agreement or the
Computer Software Maintenance Agreement, EPIC may
terminate this VPA in whole or in part.
9.0 AMENDMENT AND TERMS
9.1 MODIFICATION OF AGREEMENT: This VPA may not be modified,
supplemented, qualified, or interpreted by any trade use
or prior dealings which have not been made a part of
this Agreement. This VPA may not be modified or amended
except in writing and executed by duly authorized
representatives of both parties.
9.2 NO OTHER TERMS: The provisions of AMD's purchase order
or business forms shall not supersede the provisions of
this VPA, the Computer Software End User License
Agreement or the Computer Software Maintenance
Agreement.
9.3 PRECEDENCE: In event of a conflict among agreements, the
order of precedence shall be first the Computer Software
End User Agreement and second the Computer Software
Maintenance Agreement and last this Volume Pricing
Agreement.
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Both parties acknowledge that they have read this VPA, understand
it, and agree to be bound by its Terms and Conditions.
EPIC DESIGN TECHNOLOGY, INC. ADVANCED MICRO DEVICES, INC.
/s/ Bernard Aronson /s/ S. Hockenbury for A. Brown
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(Signature) (Signature)
Bernard Aronson S. Hockenbury for A.Brown
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(Printed Name) (Printed Name)
President Sr. Site Procurement Mgr.
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(Title) (Title)
December 6, 1995
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(Date) (Date)
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EXHIBIT A
PRODUCT AND PRICING SCHEDULE
GROUP A
Products Description Price
- ---------------------------- --------------------------------- -------------
PathMill Static Timing Analysis [*]
TimeMill-AVO Dynamic, Event Driven [*]
Timing Simulator
Power Mill Dynamic, Event Driven [*]
Power Simulator
OPTIONS:
PFX Programming and [*]
Formatting Extension
MSX Mixed Signal Extension [*]
BCX BICMOS Extension [*]
BDC Block Delay Calculator [*]
Mentor (Falcon) [*]
Interface
GROUP B
RailMill PowerNet Analysis Tool [*]
GROUP C
OEM PRODUCT
Vertue Co-Simulation [*]
SimWave Waveform display for viewing [*]
simulation vectors
VTRAN Vector-Translator [*]
Multi-User Node Locked
Rehosting Configuration change [*]
SUPPORT SERVICES
[*] [*]
[*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
See Exhibit C, Section IV for AMD Total Support Services Pricing Schedule
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* Confidential Treatment Requested
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EXHIBIT B
COMPUTER END USER LICENSE AGREEMENT
COMPUTER SOFTWARE MAINTENANCE AGREEMENT
COMPUTER SOFTWARE
END-USER LICENSE AGREEMENT
COMPUTER SOFTWARE END-USER LICENSE AGREEMENT ("Agreement") is made
and entered into as of this 15th day of October 1995 by and between EPIC DESIGN
TECHNOLOGY, INC., a California corporation, having as its principal place of
business 2901 Tasman Drive, Suite 212, Santa Clara, California 95054 ("EPIC"),
and Advanced Micro Devices a Delaware Corporation having as its principal place
of business at One AMD Place, Sunnyvale, California 94088-3453 (the "Customer").
WHEREAS, EPIC is the developer and distributor of the computer
software and documentation described in Exhibit A (collectively hereinafter
termed the "Licensed Program"); and
WHEREAS, the Customer desires to license the Licensed Program;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties agree as follows:
1. License. In consideration of the payment of the license fees set
forth herein, EPIC grants Customer a non-exclusive, non-transferable license,
without right of sublicense, to use the package of computer software identified
in Exhibit A in machine-readable form only, along with related user
documentation. The computer software and user documentation together constitute
the "Licensed Program." Customer's use of which is subject to the following
terms and conditions.
2. Scope of Rights. Customer may:
(a) Install the Licensed Program in Customer's own
facility at the locations specified in Exhibit A only;
(b) Use the Licensed Program in the configurations
specified in Exhibit A, but only for purposes of serving the internal needs of
Customer's business; and
(c) Make one (1) copy of the Licensed Program for
nonproductive backup purposes only, provided that all of EPIC's proprietary
notices are included.
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Except as specifically provided herein, EPIC reserves all rights in
and to the Licensed Program. Customer may not use or copy the Licensed program,
or any copy, adaptation, transcription, or merged portion thereof, except as
expressly authorized by this Agreement. Customer may not modify, disassemble or
decompile the Licensed Program without the prior written consent of EPIC;
provided, however, that if Customer's address set forth above is located within
a Member State of the European Community, then such activities shall be
permitted solely to the extent, if any, permitted by Article 6 of the Council
Directive of May 14, 1991 on the legal protection of computer programs, and
implementing legislation thereunder. In addition to the other remedies which may
be available to EPIC at law or in equity, any use of the Licensed Program
outside the scope of the license granted herein shall automatically terminate
the license and this Agreement.
3. Transfer of Rights. Customer's rights to use the Licensed Program
may not be transferred except to a successor in interest of Customer's entire
business who assumes the obligations of this Agreement in writing. Customer
agrees to notify EPIC of any such transfer within thirty (30) days of its
occurrence. Any use of the Licensed Program by a transferee outside the scope of
the license granted herein shall automatically terminate this Agreement and such
license with respect to such transferee.
4. License Fee. In consideration for the rights granted hereunder,
upon the Delivery Date, Customer will pay to EPIC the License fee in Untied
States dollars for the Licensed Program specified in the Volume Purchase
Agreement dated January 1, 1995.
5. Taxes. Customer is solely responsible for payment of any taxes
(including sales or use taxes and intangible taxes but excluding taxes on EPIC's
income) resulting from Customer's acceptance of this license and Customer's
possession and use of the Licensed Program. EPIC reserves the right to have
customer pay any such taxes as they fall due to EPIC for remittances to the
appropriate authority. Customer agrees to hold EPIC harmless from all claims and
liability arising from Customer's failure to report or pay such taxes.
6. Support.
6.1 Support Agreement. The term and conditions of EPIC's
support of the Licensed Program is governed by a separate support agreement
("Maintenance Agreement"). EPIC shall have no duties to provide support or
maintenance services except as explicitly set forth herein and upon payment of
the annual support fees ("Support Fees") set forth in the Maintenance Agreement.
6.2 Operation by Customer. Customer is responsible for
selecting an operator who is qualified to operate the Licensed Program on
Customer's own equipment and is familiar with the information, calculations and
reports that serve as input and output of the Licensed Program. EPIC reserves
the right to refuse support or to charge additional fees if an operator seeks
assistance with respect to such basic background information or any other
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matters not directly related to the operation of the Licensed Program provide
that such fees are communicated in writing in advance and agreed to by Customer.
6.3 Hardware and Software. The Licensed Program is
designed for use with the hardware and accessories specified in Exhibit A.
Except as agreed otherwise in writing, EPIC assumes no responsibility under this
Agreement for obtaining such equipment. Customer is also responsible for
providing a proper environment and proper utilities for the computer system on
which the Licensed Program operates, including an uninterrupted power supply.
6.4 Conversion of Data Files. Customer is responsible
for converting its own data files for use with the Licensed Program.
7. Title and Ownership. EPIC and its licensors shall own all right,
title and interest in and to the Licensed Program and all modifications and
enhancements thereof subject only to the rights and privileges expressly granted
hereunder. This Agreement does not provide Customer with title or ownership of
the Licensed Program but only a right of limited use.
8. Confidentiality.
8.1 Confidentiality. The Licensed Program is a
commercially valuable, proprietary product of EPIC, the design and development
of which reflect the effort of skilled development experts and the investment of
considerable time and money. "Confidential Information" means (i) the Licensed
Program, in object and source code form, and any related technology, idea
algorithm or information contained therein, including without limitation design
techniques, and any trade secrets related to any of the foregoing; (ii) EPIC's
product plans, designs, costs, prices and names; non-published financial
information; marketing plans; business opportunities; personnel; research;
development or know-how; (iii) any information designated by the disclosing
party as confidential at the time of disclosure and reduced to writing and
designated as confidential in writing within thirty (30) days; and (iv) the
terms and conditions of this Agreement; provided, however, that "Confidential
Information" will not include information that: (a) is or becomes generally
known or available by publication, commercial use or to otherwise through no
fault of the receiving party; (b) is known and has been reduced to tangible form
by the receiving party at the time of disclosure and is not subject to
restriction; (c) is independently developed by the receiving party without use
of the disclosing party's Confidential Information; (d) is lawfully obtained
from a third party who has the right to make such disclosure; and (e) is
released for publication by the disclosing party.
Each party will protect the other's Confidential
Information from unauthorized dissemination and use with the same degree of care
that each such party uses to protect its own like information. Neither party
will use the other's Confidential Information for purposes other than those
necessary to directly further the purposes of this Agreement. Neither party will
disclose to third parties the other's Confidential information without the prior
written consent of the other party.
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8.2 Restrictions Against Unauthorized Disclosure.
Customer may not or allow any third party, at any time, to (i) disclose or
disseminate the Licensed Program to any third party, or to any Customer employee
or consultant who does not need to obtain access thereto consistent with
Customer's rights under this Agreement; (ii) decompile, disassemble, reverse
engineer or attempt to reconstruct, identify or discover any source code,
underlying ideas, underlying user interface techniques, or algorithms of the
Licensed Program; (iii) provide, lease, lend, use for timesharing or service
bureau purposes, or otherwise use or allow others to use the Licensed Program
for the benefit of third parties; or (iv) modify, incorporate into or with other
software, or create a derivative work of any part of the Licensed Program.
Customer will devote its reasonable efforts to ensure that all of its employees,
consultants, independent contractors and all other persons afforded access to
the Licensed Program shall protect it against improper use, dissemination or
disclosure.
8.3 Remedies. If either party breaches any of its
obligations with respect to confidentiality and unauthorized use of the Licensed
Program hereunder, either party shall be entitled to equitable relief to protect
its interest therein, including but not limited to injunctive relief, as well as
money damages.
9. Limited Warranty.
9.1 Product Warranty. EPIC warrants that the Licensed
Program shall be in substantial conformance with EPIC's published specifications
for the Licensed Program for a period of ninety (90) days following initial
delivery of the Licensed Program to Customer. EPIC does not warrant that the
Products will meet all of Customer's or Customer's customer's requirements nor
that the use of the Products will be uninterrupted or error free.
9.2 Defects not Covered by Warranty. EPIC's warranty
shall not extend to problems in the Licensed Program that result from: (i)
Customer's failure to implement any updates, enhancements, error corrections or
bug fixes to the Licensed Program which are issued by EPIC during the warranty
period; (ii) changes to the operating system or environment which adversely
affect the Licensed Program; (ii) any alterations of or additions to the
Licensed Program performed by parties other than EPIC; (iv) use of the Licensed
Program in a manner for which it was not designed; (v) accident, negligence, or
misuse of the Licensed Program by any party other than EPIC personnel; or (vi)
operation outside of environmental specifications.
9.3 Exclusive Remedy. EPIC's sole obligation and
Customer's exclusive remedy under the above warranties shall be to use its
reasonable efforts to correct reproducible errors that render the Licensed
Program nonconforming, provided that EPIC shall have no obligation to correct
all errors in the Licensed Program.
9.4 Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED
WARRANTY, EPIC MAKES AND CUSTOMER RECEIVES NO WARRANTIES ON THE LICENSED
PROGRAM, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER
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PROVISION OF [UNREADABLE] OR COMMUNICATION WITH CUSTOMER, AND EPIC SPECIFICALLY
DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE.
9.5 Patent and Copyright Indemnification. EPIC shall
defend any suit or proceeding brought against Customer so far as based on a
claim that the Licensed Program, or any portion thereof, furnished by EPIC
constitutes an infringement of any patent, trademark, trade secret, copyright or
other third party property rights, if notified promptly in writing and given
authority, information and assistant (at EPIC's expense) for the defense of
same, and EPIC shall pay all damages and costs awarded therein against Customer.
In case said Licensed Program, or any portion, thereof in such suit is held to
constitute an infringement and the use of said Licensed Program or any portion
thereof, is enjoined, EPIC shall at its sole option and own expense, either
procure for Customer the right to continue using said Licensed Program, or
replace same with non-infringing program or modify it so it becomes
non-infringing, or remove said Licensed Program and refund the purchase price
and the transportation costs thereof.
10. Limitation of Liability.
EXCEPT AS SET FORTH IN SECTION 9.5 ABOVE, IN NO EVENT
WILL EPIC'S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT OR
RELATED TO THE LICENSED PROGRAM, UNDER ANY CAUSE OF ACTION, EXCEED THE TOTAL
AMOUNT OF ALL AMOUNTS FEES PAID BY CUSTOMER TO EPIC HEREUNDER. IN NO EVENT SHALL
EPIC HAVE ANY LIABILITY FOR ANY LOST OPPORTUNITY OR PROFITS, LOSS OF DATA OR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY
CAUSE OF ACTION AND WHETHER OR NOT EPIC HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. Term and Termination.
11.1 Term. This Agreement will become effective upon the
Delivery Date and continue until terminated as set forth below.
11.2 Termination for Convenience. Customer may terminate
this Agreement for any reason or no reason upon sixty (60) days written notice
to EPIC.
11.3 Termination for Cause. Either party may terminate
this Agreement for cause upon giving sixty (60) days notice of a material breach
by the other hereunder, provided that such breach will not have been remedied
during such period.
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11.4 Termination for Insolvency. This Agreement will
terminate, without notice, (i) upon the institution by or against either party
of insolvency, receivership or bankruptcy proceedings or any other proceedings
for the settlement of the party's debts, (ii) upon either party's making an
assignment of substantially all of its assets for the benefit of creditors, or
(ii) upon either party's dissolution or cessation of business.
11.5 Obligations Upon Termination. Upon termination of
this Agreement, all licenses granted to Customer will terminate. Promptly upon
termination of this Agreement for any reason or upon discontinuance or
abandonment of Customer's possession or use of the Licensed Program, Customer
must return, or certify the destruction of, all copies of the Licensed Program
in Customer's possession (whether modified or unmodified), and all other
materials pertaining to the Licensed Program (including all copies thereof).
11.6 Survival of Certain Terms. The provisions of
Sections 7, 8, 10, 11, and 12 will survive the expiration or termination of this
Agreement for any reason. In addition, if this Agreement is terminated pursuant
to Section 11.4 above due to EPIC's insolvency, the license granted in Section 1
shall survive such termination. All other rights and obligations of the parties
will cease upon expiration or termination of this Agreement.
12. General.
12.1 Binding Effect. Except as herein otherwise
specifically provided, this agreement shall be binding upon and inure to the
benefit of the parties and their legal representatives, heirs, administrators,
executors, successors and assigns.
12.2 Captions. Captions contained in this agreement are
inserted only as a matter of convenience and in no way define, limit or extend
the scope or intent of this agreement or any provision hereof.
12.3 Severability. In the event that any of the terms of
this Agreement is or become or is declared to be invalid or void by any court or
tribunal of competent jurisdiction, such term or terms shall be deemed severed
from this Agreement, the Agreement shall be interpreted to give as much effect
as possible under law to the intention behind such invalid or void term, and all
the remaining terms of this Agreement shall remain in full force and effect.
12.4 Waiver. No failure on the part of either party to
exercise, and no delay in exercising, any right or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right or remedy granted hereby or by law.
12.5 Notice. Unless otherwise provided, any notice to be
given hereunder shall be Delivered upon dispatch. Such notice shall be sent by
first class mail, postage prepaid and marked for delivery by certified or
registered mail, return receipt requested, addressed to
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the parties listed below at their respective places of business, or at such
other addresses of which notice has been given to the addressing party:
If to EPIC: If to Customer:
EPIC Design Technology, Inc. Barbara Vervenne
2901 Tasman Drive, Suite 212 Advanced Micro Devices
Santa Clara, CA 95054 U.S.A. 5204 East Ben White Blvd.
Attn: CFO Austin, TX 78741
12.6 Force Majeure. Neither party shall be liable by
reason of any failure or delay in the performance of its obligations due to
strikes, riots, fires, explosions, acts of God, war, governmental action or any
other cause which is beyond the reasonable control of such parties. The
performance of such party shall be excused for such reasonable time as may be
required to resume performance following cessation of such cause.
12.7 Language. This Agreement is in the English language
only, which language shall be controlling in all respects, and all versions
hereof in any other language shall not be binding on the parties hereto. All
communications and notices to be made or given pursuant to this Agreement shall
be in the English language.
12.8 U.S. Export Control. Customer understands and
acknowledges that the Licensed Program 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 or diversion of certain products and technology
to certain countries. Any and all obligations of EPIC to provide the Licensed
program, documentation, or any media in which any of the foregoing is contained,
as well as any other technical assistance shall be subject in all respects to
such United States laws and regulations as shall from time to time govern the
license and deliver of technology and products abroad 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. Customer agrees to cooperate with EPIC, including, without
limitation, providing required documentation, in order to obtain export licenses
or exemptions therefrom. Customer warrants that it will comply with the Export
Administration Regulations and other United States laws and regulations
governing exports in effect from time to time.
Without in any way limiting the provisions of this
Agreement, Customer agrees that unless prior written authorization is obtained
from the Bureau of Export Administration or the Export Administration
Regulations explicitly permit the re-export without such written authorization,
it will not export, reexport, or transship, directly or indirectly, the Licensed
Program or any technical data disclosed, or provided to Customer, or the direct
product of such technical data, to country groups Q, S, W, Y, or Z (as defined
in the Export Administration Regulations and which currently consist of Albania,
Bulgaria, Cambodia, Cuba, the Czech Republic, Estonia, Laos, Latvia, Libya,
Lithuania, Mongolian People's Republic, North Korea, Poland, Romania, the
geographic area of the former Union of Soviet Socialist
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Republics, the Slovak Republic and Vietnam), or to the People's Republic of
China (excluding Taiwan), Haiti, Iran, Iraq, Syria, Yugoslavia (Serbia and
Montenegro), or to military or police entities in South Africa, or to any other
country as to which the U.S. Government has placed an embargo against the
shipment of products, which is in effect during the term of this Agreement.
12.9 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the state of California.
12.10 Jurisdiction. Any dispute arising out of this
Agreement shall be brought in, and the parties consent to personal and exclusive
jurisdiction of and venue in, the state and federal courts within Santa Clara
County, California.
12.11 Amendments. No modification of this Agreement
shall be binding unless it is in writing and is signed by an authorized
representative of the party against whom enforcement of the modification is
sought.
12.12 Assignment. Either party may not assign any rights
or delegate any responsibilities hereunder without the prior written consent of
either party, except to a successor in ownership of all relevant assets of the
assigning party.
12.13 Attorney's Fees. In the event that it become
necessary for either party to institute litigation or arbitration proceedings to
enforce its rights under this Agreement, either party agrees to any reasonable
attorney's fees and other costs.
12.14 Injunctive Relief. EPIC or AMD shall have the
right to seek and obtain injunctive and equitable relief to remedy any
violations of this Agreement due to the fact that damages would not adequately
compensate EPIC or AMD for any resulting loss or injury.
12.15 Third Party Beneficiaries. Customer acknowledges
and agrees that the following entities are third party beneficiaries to this
Agreement to the extent that this Agreement contains provisions that related to
Customer's use of such entities' software licensed hereby, and that such
provisions are made expressly for the benefit of such entities and are
enforceable by such entities in addition to EPIC:
Source III Precedence Incorporated
3958 Cambridge Road, Ste. 247 4675 Stevens Creek Blvd., Ste. 250
Cameron Park, CA 95682 Santa Clara, CA 95051
Data I/O Systems Science
P.O. Box 97046 1860 Embarcadero Road, Ste. 260
Redmond, WA 98073-9746 Palo Alto, CA 94303
Archer Systems, Inc.
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4633 Old Ironside Drive, Suite 240
Santa Clara, CA 95054
12.16 Complete Agreement. THIS AGREEMENT IS THE COMPLETE
AND EXCLUSIVE STATEMENT OF EPIC'S OBLIGATIONS AND RESPONSIBILITIES TO CUSTOMER
AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION OR OTHER PROPOSAL,
REPRESENTATION OR OTHER COMMUNICATION BY OR ON BEHALF OF EPIC RELATING TO THE
SUBJECT MATTER HEREOF. CUSTOMER'S LICENSE OF THE LICENSED PROGRAM WILL NOT
COMMENCE UNTIL CUSTOMER HAS EXECUTED THIS AGREEMENT, WITHIN 90 DAYS OF THE
EXECUTION OF THIS AGREEMENT, EXTENDABLE FOR 90 DAYS, AND AN AUTHORIZED
REPRESENTATIVE OF EPIC HAS RECEIVED, APPROVED, AND EXECUTED A COPY OF IT AS
WELL.
LICENSEE: EPIC DESIGN TECHNOLOGY, INC.
Advanced Micro Devices Bernard Aronson
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Company Name Signature
S. Hockenbury for A. Brown Bernard Aronson, President
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Signature Print Name/Title
S. Hockenbury for A. Brown,
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Sr. Site Procurement Manager
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Print Name/Title
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COMPUTER SOFTWARE
MAINTENANCE AGREEMENT
This Computer Software Maintenance Agreement ("Agreement") is made
and entered into as of this 15th day of October 1995 "Effective Date") by and
between EPIC DESIGN TECHNOLOGY, INC., a California corporation having its
principal office at 2901 Tasman Drive, Suite 212, Santa Clara, CA 95054 ("EPIC")
and Advanced Micro Devices, a Delaware Corporation, having its principal office
at One AMD Place, Sunnyvale, California 94088-3453 ("Customer").
RECITALS
A. Customer has obtain a license from EPIC to use EPIC computer
software programs pursuant to a Computer Software End-User
License Agreement dated October 15, 1995 ("License
Agreement"); and
B. Customer desires to obtain certain support services from with
respect to such software; and
C. EPIC desires to offer such support services on the terms and
conditions set forth herein;
In consideration of the mutual covenants and promises contained
herein, the parties hereby agree as follows:
1. License.
1.1 Agreement Term. The initial term of this Agreement is as
described in Exhibit A. Thereafter, the Agreement Term shall be renewed for
successive periods of one (1) year upon agreement of the parties. In no event,
however, shall the Agreement Term or any renewal thereof extend beyond the term
of the License Agreement.
1.2 Equipment. The equipment described in Exhibit B.
1.3 Errors, Malfunctions or Defects. Material deviations of the
Software Products from the functional specifications in the documentation
furnished from time to time by EPIC for such Software Products.
1.4 Normal Working Hours. The hours between 9:00 a.m. and 5:00 p.m.
Pacific Standard (or Daylight, as applicable) Time Monday through Friday,
excluding EPIC's regularly scheduled holidays.
1.5 Release. A software product generally offered and expressly
designated by EPIC in its sole discretion as a revision and new release of a
Software Product.
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1.6 Software Product. A software program and associated
documentation that has been licensed by EPIC to Customer pursuant to the License
Agreement and identified in Exhibit B hereto.
1.7 Support Services. The support services described and required to
be performed by EPIC under this Agreement.
2. Scope of Services.
EPIC shall use reasonable efforts to provide the following services
during Normal Working Hours during the Agreement Term:
2.1 [*]
2.2 [*]
2.3 [*]
____________________
* Confidential treatment requested.
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[*]
2.4 Other Services. EPIC may provide other or different Support
Services by describing such services in Exhibit A. Exhibit A shall supersede the
Support Services described in this Section 2 to the extent of any contradictions
or ambiguity between the two.
3. Fees and Charges.
3.1 Support Fees. As consideration for the Support Services provided
hereunder, on or before the Effective Date, Customer shall pay EPIC its fees and
charges based on the rate schedule and the payment terms set forth in Exhibit C
attached hereto. EPIC reserves the right to change its rate schedule from time
to time, provided that no such change will be effective until the beginning of a
renewal term subsequent to the announcement of such change.
3.2 Expenses. Customer shall reimburse EPIC for all expenses
incurred by EPIC in rendering the services to Customer provided that prior
written approval has been obtained from Customer.
3.3 Payment. EPIC shall invoice Customer at the beginning of each
calendar month for all fees and charges accrued and all reimbursable expenses
incurred during the previous month which are in excess of the fees and charges
described in Exhibit C, and Customer shall pay the invoiced amount within thirty
(30) days upon receipt of such invoice. Any amount not paid within thirty (30)
days after the invoice date shall bear interest at the lesser of one and one
half percent (1.5%) per month and the highest rate allowed by applicable law.
4. Customer Responsibilities.
4.1 Interface. Customer shall be responsible for the interface
between Software Products for which Support Services are available and all other
software used by Customer whether or not such software is licensed to Customer
by EPIC or by others, or has been developed by Customer.
4.2 Installation and Operation. Customer is responsible for
installing, managing and operating any Support Service elements delivered under
this Agreement.
4.3 Software License Limitations. Customer agrees that limitations
on the use of a Software product and Customer's responsibilities to prevent the
unauthorized disclosure of EPIC confidential and proprietary information, both
of which are described in the License Agreement, apply equally to all materials
and information supplied to Customer by or on behalf of EPIC hereunder,
including without limitation, corrective code and Updates furnished to Customer
pursuant to this Agreement.
____________________
* Confidential treatment requested.
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4.4 Limitations. In no event shall EPIC have any responsibility to
correct any errors or damage that result from: (i) Customer's failure to
implement all Updates to the Software Products that are made generally available
to other licensees of the same Software Products; (ii) changes to the operating
system or environment which adversely affect the Software Products; (iii) any
alterations of or additions to the Products performed by parties other than
EPIC; (iv) use of the Software Products in a manner for which it was not
designed; (v) accident, negligence, or misuse of the Software Products by any
party other than EPIC personnel; or (vi) operation outside of environmental
specifications.
4.5 Other Customer Responsibilities. Customer shall be responsible
for procuring, installing, and maintaining all equipment, telephone lines,
communications interfaces, and other hardware (other than the hardware
constituting the program control center maintained at EPIC's facilities)
necessary to operate the Software Products and to obtain from EPIC the Support
Services.
5. Disclaimer of Warranty.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EPIC EXPRESSLY DISCLAIMS ANY
AND ALL WARRANTIES CONCERNING THE SOFTWARE PRODUCTS OR THE SERVICES TO BE
RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. Limitation of Liability.
IN NO EVENT SHALL EPIC'S CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING IN
CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL FEES AND CHARGES PAID TO EPIC BY
CUSTOMER PURSUANT TO THIS AGREEMENT WITHIN THE LAST AGREEMENT TERM. IN NO EVENT
SHALL EPIC BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR
INCIDENTAL DAMAGES OF WHATEVER KIND AND HOWEVER CAUSED, INCLUDING, WITHOUT
LIMITATION, LOST PROFITS AND LOSSES STEMMING FROM BUSINESS OPPORTUNITIES
FOREGONE AND EFFECTS OF INCOMPLETE DESIGN EFFORTS, WHETHER OR NOT EPIC HAS BEEN
ADVISED OF OR IS OTHERWISE ON NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
7. Termination.
7.1 Term. Unless earlier terminated as set forth below, this
Agreement will become effective upon the Effective Date and continue for the
Agreement Term.
7.2 Termination for Cause. Either party may terminate this Agreement
for cause upon giving sixty (60) days notice of a material breach by the other
hereunder, provided that such breach will not have been remedied during such
period.
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7.3 Termination of License Agreement. This Agreement shall
immediately terminate upon the termination of the License Agreement.
7.4 Effect of Agreement. Following termination of this Agreement,
EPIC shall immediately invoice Customer for all accrued fees and charges and all
reimbursable expenses, not in dispute and Customer shall pay the invoiced amount
within thirty (30) days upon receipt of such invoice. Customer may continue to
use any work supplied to Customer by EPIC for the remaining term of the License
Agreement.
7.5 Survival of Certain Terms. The provisions of Sections 5, 6 and 8
will survive the expiration or termination of this Agreement for any reason. All
other rights and obligations of the parties will cease upon expiration or
termination of this Agreement.
8. Notices.
Any notice required or permitted hereunder shall be in writing and
shall be deemed to have been given upon personal delivery, fax transmission, or
three (3) business days after being sent to the other party by U.S. mail return
receipt requested at the addresses as listed above, or as one party may from
time to time give the other in writing.
9. Miscellaneous.
9.1 Each party acknowledges that it has read this Agreement,
understands it, and agrees to be bound by its terms. The parties further agree
that this is the complete and exclusive statement of the agreement of the
parties with respect to the subject matter hereof and that it supersedes and
merges all prior proposals, customer provided brochures and materials,
understandings and agreements, whether oral or written, between the parties with
respect to the subject matter hereof. This Agreement may not be modified except
by a written instrument duly executed by the parties hereto.
9.2 This agreement shall be governed by and construed in accordance
with the laws of the State of California, without reference to conflict of laws
principles.
9.3 Any dispute arising out of this Agreement shall be brought in,
and the parties consent to personal and exclusive jurisdiction of and venue in,
the state and federal courts within Santa Clara County, California.
9.4 In the event that any provision of this Agreement is held
invalid, illegal, or unenforceable, the remaining provisions shall be enforced
to the maximum extent permitted by applicable law.
9.5 The waiver by either party of any term or condition of this
Agreement shall not be deemed to constitute a continuing waiver thereof nor of
any further or additional right that such party may hold under this Agreement.
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9.6 Customer acknowledges that Software Products, Updates or other
information disclosed in connection with the Agreement may be considered
technical data that this subject to compliance with the export control laws and
regulations of the United States. Customer hereby agrees to comply with all such
laws.
9.7 Use, duplication, or disclosure by the United States Government
is subject to restrictions as set forth in subdivisions (b) and (c), Part
252.227-7013 of Title 48 of the United States Code of Federal Regulations
(Rights in Technical Data and Computer Software) and any successor statute
thereto.
9.8 The parties do not intend that any agency or partnership
relationship be created between them by this Agreement.
9.9 Customer may not assign its benefits nor delegate its
obligations under this Agreement without first receiving the written consent
therefor from EPIC. For the purposes of this paragraph, the merger of Customer
with or the sale of Customer or of substantially all the assets of Customer to
another entity except an entity which is a competitor of EPIC's, shall not be
deemed to be an event requiring EPIC's consent.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as set forth below.
LICENSEE: EPIC DESIGN TECHNOLOGY, INC.
Advanced Micro Devices Bernard Aronson
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Company Name Signature
S. Hockenbury for A. Brown Bernard Aronson, President
- ----------------------------- -----------------------------------
Signature Print Name/Title
S. Hockenbury for A. Brown,
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Sr. Site Procurement Manager
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Print Name/Title
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EXHIBIT C
PURCHASE AND ACQUISITION SCHEDULE
I. DISCOUNT SCHEDULE
THREE YEAR SCHEDULE
[*]
II. PEAK DEMAND LICENSE REQUIREMENTS
Definition of Peak Demand License (PDL) option:
In the spirit of a multi-year agreement and shared risk between both
AMD and EPIC, EPIC shall agree to provide one [*] for every owned
license of PowerMill TimeMill and PathMill (core product) and the
following options: BDC, BCX, MSX, AVO. AMD agrees to commit to the
net revenue outlined in Table I with the inclusion of [*] for 1995.
The invoicing formula for the Peak Usage Model is defined in Section
1.5 of the VPA. As a condition of the continued use in 1996 and 1997
of the PDL Model, AMD must commit to a minimum purchase of [*] for
those products defined in Exhibit A
Since EPIC has agreed to expand the PDL to include [*] of software
for previously purchased licenses, including product options, the
PDL model will be reviewed as to the continued inclusion of options
in the Peak Demand License Model at the end of 1995.
1995 SOFTWARE PURCHASE FOR VPA
As a condition of the Peak Usage Model, Epic would require a minimum
purchase of [*] and whatever desired combination of core products,
options and OEM products, provided the total revenue commitment for
1995 is a [*] worth of product. If these requirements are met then
EPIC will extend the Peak Usage Model to AMD. The PDL Model is based
upon annual revenue dollars beginning January 1st of each year.
____________________
[*] Confidential Treatment Requested.
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1995 Purchase would be as follows:
[*]
PEAK DEMAND LICENCE (PDL) OPTION FOR 1996 & 1997
EPIC will extend the Peak Demand License model to AMD for 1996 and 1997 if the
total gross dollars spent on an annual basis with EPIC meets [*] purchase for
each year. There will be no requirements set forth on [*] of core products for
1996 and 1997.
III. PATHMILL [*] USE OPTION
EPIC will provide [*] of PathMill to AMD with the commitment of the following
criteria: AMD will purchase a [*] and whatever desired combinations of core
products, options and OEM products provided the total revenue commitment for
1995 is a [*] worth of product. To obtain [*] PathMill usage in 1996 and 1997,
the total gross dollars spent on an annual basis on core products, options and
OEM products must meet the same requirements as the PDL model outlined in Table
2. There will be no requirement set forth on [*] in 1996 and 1997. The dollar
figures in the [*] Licenses" below assumes that 1995 licenses will be made
available for [*] . The dollar figures for 1996 and 1997 are for [*]. AMD will
not retain any of the utilized but unpurchased licenses of PathMill on the
unrestricted model.
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[*] PATHMILL LICENSE PRICE TERMS
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[*]
IV. AMD SUPPORT SERVICES PRICING SCHEDULE
In Exhibit D, EPIC has outlined the AMD Total support services as (1), [*] as
defined in Table 1, Exhibit C (2), [*], (3) [*] IV and (4) [*]. Pricing is as
follows:
1995 1996 (EST) 1997 (EST)
[*]
Additional support can be provided [*] after AMD informs EPIC of desire to
contract for this service.
[*]
Should AMD exceed the set of services in Exhibit D, AMD shall place additional
purchases for services as needed.
The total support dollars above do not include product maintenance dollars for
years 1996 and 1997. The software product maintenance will be charge at a [*]
for all new purchases of Epic written Software after the initial order under the
VPA and [*] for all OEM product in 1996 and 1997.
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IV. AMD TOTAL SUPPORT SERVICES PRICING SCHEDULE (CON'T)
The AMD Total Support Program is based on software already owned by AMD, the
software initially acquired under the VPA as outlined in Exhibit C and the AMD
Support Services as outlined in Exhibit D. The program allows for an additional
[*] of software to be acquired with no increase in the maintenance charge. As
additional software purchases exceed [*], a maintenance charge of [*] will be
added to the ATS program fee due that year. Software added during the middle of
the year would incur support fees prorated from date of purchase for that year.
EPIC will allow AMD to make quarterly payments for ATS if AMD pays the full
prorated amount for incremental purchases of [*] or more on the next quarterly
payment following purchase.
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EXHIBIT D
AMD TOTAL SUPPORT SERVICES PROGRAM
EPIC shall provide AMD product support in the following areas. It is EPICs'
intent to accelerate the successful implementation of EPICs' technology and
products in your project development cycles. We recognize the need to provide
additional services to demonstrate the effective use of these tools.
I. STANDARD MAINTENANCE
Updates to New software releases:
EPIC will provide AMD with all software updates to licensed products
purchased under this VPA. [*] The current EPIC Software Maintenance
Agreement will indicate those products to which the customer is
entitled software updates. [*] all new software updates will
include:
[*]
o All updates will be shipped via electronic mail (email).
II. TECHNICAL SUPPORT
AMD, the CTS Site Manager or a key design team contact may phone, email or fax
the EPIC Technical Support Group for assistance. The EPIC Technical Support
Group is the central entry point for all AMD identified product defect problems
or enhancement requests. EPIC's Technical Support Group engineers provide
guidance and support for all EPIC products. EPIC Technical Support Group will
evaluate the customer's questions and provide an answer or work around if
possible. If necessary, the EPIC Technical Support Group will escalate the call
to the appropriate factory based Technical Specialist or R & D Engineer for
further analysis. The EPIC Technical Support Group will also log the problem in
the EPIC `Scopus System. AMD, CTS Site Manager will provide priority of open
issues if necessary. In the event of a significant product failure, EPIC will
use its best effort to resolve the technical defect.
____________________
* Confidential Treatment Requested.
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III. ON-SITE APPLICATIONS ENGINEERING SUPPORT
EPIC will appoint an on-site Applications Engineer for both TX and CA locations.
During the first year of this VPA, the TX AE will be on location [*] and the
CA person [*]. Duties of the AE are as follows:
[*]
IV. TRAINING
As a part of the Total Support Program AMD will be entitled to [*] Standard
Training Classes or AMD Specific Training Classes for [*] persons in each
class. [*] EPIC will provide monthly updates to AMD CTS Site Manager for
registered class students.
V. ON-SITE METHODOLOGY CONSULTANT
The on-site methodology consultant assists the designers to better understand
how to effectively deploy EPIC tools to achieve the best possible results. After
each consulting project, the EPIC consultant will document a report summarizing
any observations, methodology recommendations, design problems and work- around.
An electronic mail (email) copy of this report will go the TX and CA AE, Project
Leader/Manager and the AMD Site Manager.
This AMD Support Program will include [*] weeks per year of the on-site
consultant defined above.
This Methodology Consultant will not however, participate in any AMD actual
design activity outside the scope of the EPIC tools. AMD request design
consulting as required at the cost listed on Exhibit A.
____________________
* Confidential Treatment Requested.
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