Exhibit 2.12
FIXED TERM LICENSE AGREEMENT
AGREEMENT NO.: FTLA-00CDS0717
DATE OF AGREEMENT: OCTOBER 4, 2000
This FIXED TERM LICENSE AGREEMENT ("AGREEMENT"), entered into as of the
date specified above, is by and between CADENCE DESIGN SYSTEMS, INC., a Delaware
corporation having a principal place of business at 555 River Oaks Parkway, San
Jose, California 95134-1937, USA ("CADENCE"), and TALITY LP, A DELAWARE LIMITED
PARTNERSHIP , having a place of business at 2655 SEELY AVE., SAN JOSE, CA 95134
("CUSTOMER"). Customer desires by this Agreement to obtain from Cadence limited,
temporary licenses to Use certain Licensed Programs and related Documentation
(as defined below) under the terms and conditions set forth below. Customer
intends to provide integrated circuit design, product design, PCB design,
manufacturing, and other services to its customers. In connection with such
services, Customer's employees along with subcontractors, and consultants (at
either a Designated Site or a remote location) may require the right to Use the
Licensed Programs as provided hereunder in connection with specific Customer
Projects ("Projects"). In addition, customers of Customer may also require the
right to view design results and Use the Licensed Program operation via
Customer's web site for such Projects. Therefore, Cadence and Customer agree as
follows:
Therefore, Cadence and Customer agree as follows:
1. DEFINITIONS
The following definitions apply herein:
(a) "DESIGNATED EQUIPMENT" means either: (i) a server (located at the
Designated Site) identified by serial number, or host I.D on which the Licensed
Programs are stored, or; (ii) a computer or workstation, as identified by its
serial number, host I.D. number or ethernet address, located at the Designated
Site, to which the Licensed Programs are downloaded and Used only upon the
issuance of an electronic "key". The Designated Equipment shall be of a
manufacture, make and model, and have the configuration, capacity, (i.e.,
memory/disk), operating software version level and pre-requisite and
co-requisite applications, prescribed in the Documentation as necessary or
desirable for the operation of the Software.
(b) "DESIGNATED SITE" means the specific address of Customer's facility
consisting of one or more buildings within a radius of one mile of the
Designated Equipment. Use of the Licensed Programs may be either at the
Designated Site or through remote access via a secure interface to the Licensed
Programs on the Designated Equipment at the Designated Site. The geographic
scope of such remote access shall be as set forth in the Product Quotation.
(c) "DOCUMENTATION" means the user manuals and other written materials
which describes the Software, its operation and matters related to its use and
which Cadence generally makes available to its commercial licensees for use with
the Software and any updated, improved or modified version(s) of such materials,
whether provided in published written material, on magnetic media or
communicated by electronic means.
(d) "EFFECTIVE DATE" means the date specified in each Product Quotation
representing the commencement of the Term of Use for the Licensed Programs.
(e) "INITIAL CONFIGURATION" means the specific group of Licensed Programs
listed in each Product Quotation which represents the initial usage by the
Customer on the Effective Date.
(f) "LICENSED PROGRAM(S)" means the specific group of Cadence Software and
the associated Documentation listed in the Product Quotation. Unless otherwise
specified in the Product Quotation, Licensed Programs excludes New Technology as
defined in Section 9(a)(6) herein.
(g) "MAINTENANCE SERVICE(S)" shall mean any maintenance services,
installation assistance, customized support, consulting, or similar assistance
which Cadence may consent to provide to Customer related to the Licensed
Programs or to facilitate Customer's productive Use of the same, as is more
particularly described in Section 9 (Technical Support) herein.
(h) "PRODUCT QUOTATION" means a written quotation from Cadence to Customer
identifying the Licensed Programs, Initial Configuration, quantity, charges,
term of Use and other information relevant to a specific transaction which
Cadence is quoting to Customer. Each Product Quotation will be included as an
Attachment to this Agreement and incorporated herein by reference.
(i) "SOFTWARE" means any applications programming code or executable
computer program(s), and any updated, improved or otherwise modified version(s)
thereof, generally made commercially available by or on behalf of Cadence to
customers.
(j) "TERM OF USE" means that period of time Customer has Use of the
Licensed Programs as specified in each Product Quotation.
(k) "THEN CURRENT CONFIGURATION" means the specific group of Licensed
Programs being Used by
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Customer in accordance with the provisions of this Agreement at the time
Customer has the right to "remix" as provided in Section 3(b).
(l) "USE" means copying all or any portion of a Licensed Program into the
Designated Equipment or transmitting it to the Designated Equipment for
processing instructions contained in the Licensed Program and/or loading data
into or displaying, viewing or extracting output results from or otherwise
operating any portion of the Licensed Program for the purpose of Customer's
design and manufacture of electronic circuits and systems.
2. SCOPE AND BACKGROUND
This Agreement puts into place a mechanism whereby Customer can: (i)
temporarily license a number of Licensed Programs and its Documentation; and
(ii) obtain Maintenance Services for the Licensed Programs pursuant to the
provisions and during the Term of Use for such Licensed Programs. This Agreement
has the following characteristics: (i) only Cadence Licensed Programs can be
licensed; (ii) the duration of the Use of the Licensed Programs is limited to
the Term of Use as specified in each Product Quotation attached to this
Agreement; (iii) Maintenance Service charges are included as part of the Fees
(as defined in Section 4 below); and (iv) any copy of the Licensed Programs can
only be Used by Customer at a Designated Site or at remote sites in accordance
with Section 3(c) of this Agreement. If Customer desires to acquire a license to
Use any third party program marketed by Cadence, or a perpetual license to any
Cadence Software, such acquisitions shall be a separate transaction outside the
scope of this Agreement.
3. LICENSE GRANT
(a) GRANT: Subject to Customer's timely payment of the Fees as set forth in
Section 4 and subject to the limitations set forth in Section 3(b), Cadence
hereby grants Customer, for the Term of Use as specified in each Product
Quotation attached to this Agreement, a non-transferable, non-exclusive,
personal, limited license to: (i) Use the quantity of Licensed Programs
identified in that Product Quotation at the Designated Sites on any unit of
Designated Equipment owned or leased by Customer, or at remote locations as
provided in sub-part (c) below, provided, however, each item of Licensed
Programs is only Used on one unit of Designated Equipment at a time by a single
user; and (ii) Use the Documentation at the Designated Site, or at remote
locations as provided in sub-part (c) below, as is reasonably necessary for
Customer's licensed Use of the Licensed Programs (collectively, a "FIXED TERM
LICENSE"). All rights not expressly granted to Customer pursuant to this
Agreement are reserved by Cadence.
(b) LIMITATION: Customer agrees as of the Effective Date of the applicable
Product Quotation, Customer may initially Use only those Licensed Programs
identified in the Initial Configuration. If specified in the Product Quotation,
and upon reasonable prior written notice to Cadence, Customer may periodically
remix the Initial Configuration or the Then Current Configuration with the
following limitations: (i) the total value of the new configuration, as
calculated in the Product Quotation, may not exceed the total value of the
Initial Configuration, and (ii) the maximum dollar value of the Then Current
Configuration, which may be exchanged for other Licensed Programs, is specified
in the Product Quotation. Customer shall execute a Certificate of Discontinued
Use upon the completion of each remix for those Licensed Programs that are
exchanged or terminated in the remix.
(c) RESTRICTION: All rights, title and interest in the Licensed Programs
shall remain the exclusive property of Cadence and/or its licensors. Each
Licensed Program and its Documentation are the confidential and proprietary
property of Cadence or third parties from whom Cadence has obtained the
appropriate rights. Customer shall not Use or copy the Licensed Program or
Documentation except as expressly permitted hereunder. In order to protect
Cadence and/or its licensors' intellectual property, Customer shall not modify,
disassemble, decompile or reverse translate or create derivative works from the
Licensed Programs or otherwise attempt to derive the Software's source code, or
let any third party do so. No right or license is granted or implied under any
of Cadence's, or its licensors', patents, copyrights, trademarks, trade names,
service marks or other intellectual property rights to Use the Licensed Programs
or to license or authorize others to Use the Licensed Programs beyond the rights
and restrictions set forth in this Agreement. Customer shall not remove or alter
any of Cadence or its licensors' restrictive or ownership legends appearing on
or in the Licensed Programs and shall reproduce such legends on all copies
permitted to be made. Customer shall not let the Licensed Programs be accessed
or used by third parties or anyone other than Customer's employees whose duties
require such access or use. Notwithstanding the foregoing, Customers authorized
consultants and subcontractors may Use the Licensed Program on the Designated
Equipment at the Designated Site or from remote locations (specified in a
Product Quotation) but only where such Use is in connection with their
performing services for a Project on Customer's behalf consistent with the Fixed
Term License granted to Customer hereunder. In addition, clients of Customer may
Use the Licensed Program on the Designated Equipment at the Designated Site or
access the Designated Equipment from a remote location, only where such Use is
in connection with performing services for a Project consistent with the Fixed
Term License granted to Customer hereunder. For each such Project, Customer
shall establish a specific authorization procedure whereby only Customer
employees, consultants, subcontractors and/or clients with specific
authorization from Customer on such Project shall have access to and Use of the
Licensed Programs. As a condition precedent to such Use of the Licensed
Programs, Customer shall (i) require such consultants, subcontractors and
clients to sign written
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agreements obligating them to observe the same material restrictions concerning
the Licensed Program as are contained in this Agreement, (ii) ensure that such
agreements contain a provision establishing Cadence, in the event of a
reasonable belief by Cadence that the other party to such agreement has been or
is breaching Cadence's intellectual property rights, as a third party
beneficiary of such agreements with respect to such intellectual property rights
and the right of Cadence to seek injunctive or other legal or equitable relief
for such breach, (iii) have in place reasonable security measures to ensure that
the Licensed Programs are Used only in accordance with the terms of this
Agreement, and (iv) promptly notify Cadence in the event Customer learns of any
material breach of such agreements. Customer shall remain fully liable to
Cadence for any misuse of the Licensed Programs by Customer's authorized
consultants, subcontractors and clients.
(d) ADDITIONAL LICENSED PROGRAMS: Subject to Customer's payment to Cadence
of additional fees as determined by mutual agreement of the parties, Customer
may acquire the right and license to Use additional Cadence Software.
4. FEES; TAXES
(a) FEES AND PAYMENT: Customer shall pay Cadence the license fees ("LICENSE
FEES") and maintenance services fees ("MAINTENANCE SERVICES FEES")
(collectively, the "FEES"). Such Fees shall be remitted so that they are
received by Cadence by the dates and in the amounts set forth in the Product
Quotation and, except as expressly provided herein, are non-refundable. In
addition, Customer's obligation to remit License Fee payments to Cadence in
accordance with the payment schedule set forth in the Product Quotation shall be
absolute, unconditional, noncancellable and nonrefundable, and shall not be
subject to any abatement, set-off, claim, counterclaim, adjustment, reduction,
or defense for any reason, including, but not limited to, any claims that
Cadence failed to perform under this Agreement or termination of this Agreement.
Past due amounts shall be subject to a monthly service charge of one and
one-half percent (11/2%) per month of the unpaid balance or the maximum rate
allowable by law. In addition to all other sums payable hereunder, Customer
shall pay all reasonable out-of-pocket expenses incurred by Cadence, including
fees and disbursements of counsel, in connection with collection and other
enforcement proceedings resulting therefrom or in connection therewith.
(b) TAXES: All Fees are net. Customer will pay or reimburse all taxes,
duties and assessments, if any due, based on or measured by amounts payable to
Cadence in any transaction between Customer and Cadence under this Agreement
(excluding taxes based on Cadence's net income) together with any interest or
penalties assessed thereon, or furnish Cadence with evidence acceptable to the
taxing authority to sustain an exemption therefrom (collectively, "TAXES").
5. TERM AND TERMINATION
(a) TERM: This Agreement is entered into as of the date specified on the
initial page and shall terminate on the latest termination date set forth in the
Product Quotation(s) ("TERM") unless terminated as provided in Section 5(b), or
the parties have negotiated a continuance or renewal hereof.
(b) TERMINATION: This Agreement may be terminated by Cadence: (i) if
Customer fails to pay when due all or any portion of any amounts payable
hereunder, and such failure is not cured within thirty (10) days after written
notice; or (ii) if Customer breaches any provisions of Section 3 herein and such
breach is not cured within ten (10) days after written notice; or (iii) in the
event of a material breach by Customer of any other provision of this Agreement
where Customer fails to correct such breach within thirty (30) days of its
receipt of written notice thereof; or (iv) immediately if Customer becomes
insolvent or makes an assignment for the benefit of creditors, or a trustee or
receiver is appointed for Customer or for a substantial part of its assets, or
bankruptcy, reorganization or insolvency proceedings shall be instituted by or
against Customer; or (v) if an "Event of Default" (as defined in the Installment
Payment Agreement "IPA") occurs and is continuing under any IPA in favor of
Cadence or Cadence Credit, if Customer enters into such an IPA in order to
finance the License Fees. This Agreement may be terminated by Customer in the
event of a material breach by Cadence of any provision of this Agreement where
Cadence fails to correct such breach within thirty (30) days of its receipt of
written notice thereof. In the event of a material breach by Cadence, Customer
may, at its option, either (i) terminate the Agreement as provided herein, or
(ii) continue to Use the Licensed Programs provided that in such instance,
Customer agrees to continue to make Maintenance Fee payments during the Term of
Use.
(c) EFFECT OF TERMINATION: Expiration or termination of this Agreement
shall simultaneously terminate Customer's usage rights for all Fixed Term
Licenses and Cadence's Maintenance Service obligations with respect thereto.
Within thirty (30) days after expiration or termination of this Agreement,
Customer shall: (i) furnish Cadence written notice certifying that the original
and all copies, including partial copies, of the Licensed Programs furnished by
Cadence under this Agreement or made by Customer as permitted by this Agreement,
have either been returned to Cadence or destroyed and no copies or portions
thereof remain in the possession of Customer, its employees or agents; and (ii)
make prompt payment in full to Cadence for all amounts then due plus the present
value (discounted at the lesser of; (a) the then current one year U.S. Treasury
Bill Rate and, (b) the one year U.S. Treasury Bill Rate as of the Effective Date
of this Agreement) of the unpaid balance of the License Fees as set forth in the
Product Quotation, together with any applicable Taxes. Sections 3(c), 4, 5(c),
10, 11(b),
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12, 13.6, 13.7 and 13.8 shall survive expiration or termination of this
Agreement.
6. ORDERING
If required by Customer, Customer shall order Licensed Programs and
Maintenance Services using its standard purchase order forms. All Customer
orders shall: (i) conform to and cite this Agreement; and (ii) describe the
Licensed Programs and/or Maintenance Services being ordered (by Cadence's
product numbers and nomenclature), (iii) identify the quantity, price, ship and
bill to addresses and (iv) include such other data as Cadence may reasonably
require. This Agreement shall govern all Customer purchase orders accepted by
Cadence during the Term and within the scope of this Agreement. Any terms and
conditions contained or incorporated by reference in purchase orders,
acknowledgments, invoices, confirmations or other business forms of either party
which add to or differ from the terms and conditions of this Agreement or the
Attachments made a part hereof shall be of no force or effect whatsoever
concerning the subject matter of this Agreement, and either party's failure to
object thereto shall not be deemed a waiver of its rights hereunder.
7. SHIPMENT
Delivery is to be made F.O.B point of shipment. Customer shall pay shipping
charges, including insurance. Risk of loss shall pass to Customer upon delivery
to carrier.
8. COPIES AND TRANSFER
(a) COPIES: Customer may make a reasonable number of copies of a Licensed
Program for either of the following purposes only: (i) archival purposes; or
(ii) for use as a back-up when the Licensed Program is not operational. All
legends, trademarks, trade names, copyright legends and other identifications
must be copied when copying the Licensed Program. Documentation may not be
copied except for a reasonable number of printed copies produced by Customer for
internal use only from the Documentation provided in electronic form. At
Cadence's request, Customer will provide Cadence with a listing of the number of
copies currently in possession or control by Customer.
(b) TRANSFER: The Licensed Program may be moved from the Designated Site
or the Designated Equipment only if the Designated Equipment malfunctions and
only with Cadence's prior written consent. Customer will immediately return
Cadence's Rehost Certificate when the Licensed Program is moved from either the
previously identified Designated Equipment or Designated Site and completely
remove the Licensed Program from such equipment.
9. TECHNICAL SUPPORT
Subject to the terms and conditions of this Agreement and Customer's timely
payment of applicable Fees, Cadence agrees to use commercially reasonable
efforts to perform, or have provided, during the Term hereof, the following
technical assistance with respect to the Licensed Programs:
(a) MAINTENANCE SERVICES:
(1) TELEPHONE SUPPORT: Cadence will make available telephone assistance
to Customer through Cadence's Customer Response Center ("CRC") between 8:00 a.m.
and 5:00 p.m., Designated Site local time (the "PRIME SHIFT"), Monday through
Friday excluding Cadence's holidays.
(2) ERROR RESOLUTION ASSISTANCE: Cadence will acknowledge receipt of
Customer's error or problem changes request (a "PCR") within four (4) Prime
Shift hours. Upon receipt of a Customer's PCR containing a detailed description
of the nature of the error, the conditions under which it occurs and other
relevant data sufficient to enable Cadence to reproduce a reported error in
order to verify its existence and diagnose its cause, upon completion of
diagnosis Cadence will provide Customer appropriate assistance in accordance
with Cadence's standard commercial practices, including furnishing Customer with
an avoidance procedure, bypass, work-around, patch or hot-fix (i.e., a Customer
specific release for a production stopping problem with no work-around) to
correct or alleviate the condition reported.
(3) UPDATE(S): Cadence will provide Customer any Update(s) (as defined
below) for Licensed Programs that Cadence releases on a general commercial basis
to its other customers. Cadence will also provide instructions and/or
Documentation that Cadence considers reasonably necessary to assist in a smooth
transition for Use of an Update.
(4) COMMUNICATION: Cadence will provide Customer: (i) access to
Cadence's SourceLink-TM- electronic bulletin board service; and, (ii) such
newsletters and other publications, as Cadence routinely provides or makes
accessible to all Maintenance Service customers to furnish information on topics
such as Software advisories, known problem and solution summaries, product
release notes, application notes, product descriptions, removal of an item from
a product line, training class descriptions and schedules, bulletins about user
group activity and the like.
(5) VERSIONS SUPPORTED: Customer acknowledges that Cadence will
maintain only the most current version of the Licensed Programs. Cadence shall
also maintain the last prior version until the earlier of twelve (12) months
from the release of each new version release, or termination of this Agreement.
(6) GENERAL: As used herein an "UPDATE" means a Software modification
released by Cadence on a general, regularly scheduled basis as a standard
Maintenance Service offering to its other commercial customers who have the same
Software version under maintenance contract coverage with Cadence and Use such
Software on computer hardware of the same manufacture, make and model as the
Designated Equipment upon which Customer Uses the Software. Updates may include
revisions to Documentation. "NEW TECHNOLOGY" means any
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enhancement(s) or addition(s) to Software (other than an Update) which Cadence
does not make available to its commercial customers as a part of the standard
Maintenance Service offering under a software maintenance contract, but rather
is only provided subject to payment of a separate fee. New Technology is
determined and defined by Cadence and is not covered by, and will not be
provided in consideration of the Fees already paid by Customer unless otherwise
specified in a Product Quotation.
(b) CUSTOMER'S RESPONSIBILITIES: Customer shall:
(1) NOTIFICATION: Notify Cadence promptly by either (i) Cadence
electronic problem reporting software; or (ii) telephone with a description of
the problem and a follow-up with a written PCR. If Customer does not receive
Cadence's acknowledgment of its receipt of such report within four (4) Prime
Shift hours, Customer shall promptly re-transmit such report.
(2) ACCESS: Allow Cadence access to the Designated Equipment and
communication facilities during Prime Shift and subject to Customer's security
and safety procedures, and provide Cadence reasonable work space and other
normal and customary facilities.
(3) ASSISTANCE: Provide Cadence with reasonable assistance as requested
and when Maintenance Services are performed on site at Customer's facility and
ensure that a Customer employee is present.
(4) TEST TIME: Provide sufficient support and test time on Customer's
Equipment to allow Cadence to duplicate an error and verify if it is due to a
Licensed Program, and when corrections are complete, acknowledge that the error
has been resolved.
(5) STANDARD OF CARE: Provide the same standard of care for the
Licensed Program that it applies to its own products or data of like value to
its business and return any defective Licensed Programs or attest in writing to
the destruction of same as directed by Cadence.
(6) SUPPORT: If Customer makes modifications, interfaces, and/or other
changes to the Licensed Program as permitted under this Agreement, promptly
inform Cadence in writing and provide such information as Cadence determines
necessary to properly maintain the Licensed Program.
(7) DATA NECESSARY: Provide data sufficient to enable Cadence to
replicate a reported error on its own computers at the CRC.
(c) EXCLUDED SERVICES: Maintenance Services required in connection with or
resulting from the following are excluded from this Agreement:
(1) abuse, misuse, accident or neglect; or, repairs, alterations,
and/or modifications which are not permitted under this Agreement and which are
performed by other than Cadence or its agents; or
(2) the relocation of Licensed Programs from one unit of Equipment to
another or from the Designated Site; or making changes due to Customer's
decision to reconfigure the Licensed Program or the system or network upon which
it is installed; or
(3) maintenance, malfunction, modification of the Designated Equipment
or its operating system; or
(4) Use of the Licensed Program on a hardware platform other than the
Designated Equipment; or use of other than the most current or last prior
release of the Licensed Program; or
(5) Customer's failure to maintain configuration environment (i.e.,
memory/disk capacity, operating system revision level, prerequisite or
co-requisite items, etc.) specified in the Documentation; or where inadequate
backups are supplied.
(d) ADDITIONAL SERVICES: If Cadence agrees to perform services requested by
Customer which are not included as part of this Agreement, such services shall
be billed to Customer at prices and terms to be agreed by the parties.
10. PROPRIETARY RIGHTS INDEMNITY
Cadence will indemnify, defend and hold Customer harmless, at Cadence's own
expense, against any legal claim or action brought against Customer to the
extent that it is based on a claim or allegation that any Licensed Program
directly infringes a U.S., European or Japanese patent, copyright, trademark, or
trade secret of any third party, and Cadence will pay any liabilities and costs
and damages finally awarded against Customer in any such action that are
attributable to any such claim or incurred by Customer through settlement
thereof, but shall not be responsible for any compromise made or expense
incurred without its consent. However, such defense and payments are subject to
the condition that Customer gives Cadence prompt written notice of such claim,
allows Cadence to direct the defense and settlement of the claim, and cooperates
with Cadence as reasonably necessary for defense and settlement of the claim.
Should any Licensed Program, or the operation thereof, become or in Cadence's
opinion be likely to become, the subject of such claim, Cadence may, at
Cadence's option and expense, procure for Customer the right to continue using
the Licensed Program, replace or modify the Licensed Program so that it becomes
non-infringing, or, if neither of the foregoing options are commercially
reasonable or practicable, terminate the license granted hereunder for such
Licensed Program and refund to Customer the Fees (less a reasonable charge for
the period during which Customer has had availability of such Licensed Program
for Use and of the Maintenance Services). Cadence will have no liability for any
infringement claim to the extent it (i) is based on modification of a Licensed
Program other than by Cadence, with or without authorization; or (ii) results
from failure of Customer to use an updated version of a Licensed Program
provided by Cadence to Customer; or (iii) is based on the combination or use of
a Licensed Program with any other software, program or device not provided by
Cadence if such infringement would not have arisen but for such use or
combination; or (iv) results from
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compliance by Cadence with designs, plans or specifications furnished by
Customer, or (v) is based on any products, devices, software or applications
designed or developed through use of the Licensed Programs. THE FOREGOING STATES
CADENCE'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR PROPRIETARY
RIGHTS INFRINGMENT.
11. LIMITED WARRANTY
(a) Cadence warrants for thirty (30) days after shipment that the recording
media by which the Licensed Programs are furnished is free of manufacturing
defects and shipping damage if the media has been properly installed on the
Designated Equipment. Cadence does not warrant that Licensed Programs will meet
Customer's requirements or that their Use will be uninterrupted or error free.
As Customer's sole remedy and Cadence's entire liability for breach of the
warranty herein, Cadence will provide a replacement magnetic media containing
the Licensed Programs ordered by Customer.
(b) EXCEPT AS PROVIDED ABOVE, CADENCE MAKES NO WARRANTIES TO CUSTOMER WITH
RESPECT TO THE LICENSED PROGRAMS OR ANY SERVICE, ADVICE, OR ASSISTANCE FURNISHED
HEREUNDER, AND NO WARRANTIES OF ANY KIND, WHETHER WRITTEN, ORAL, IMPLIED OR
STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING OR USAGE IN TRADE
SHALL APPLY.
12. LIMITATION OF LIABILITY
Cadence's cumulative liability to Customer for all claims of any kind
resulting from Cadence's performance or breach of this Agreement or the Licensed
Program(s) or Services furnished hereunder shall not exceed, to the extent
collected by Cadence, the Fees actually received by Cadence from Customer under
this Agreement during the current Term for the Licensed Program(s) or
Maintenance Services which are the subject of such claim, regardless of whether
Cadence has been advised of the possibility of such damages or whether any
remedy set forth herein fails of its essential purpose or otherwise. NEITHER
PARTY SHALL BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTES, LOSS OF PROFITS,
INTERRUPTION OF BUSINESS, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL
DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. Customer agrees it will take no legal
action against Cadence's third party software suppliers related to the Software
licensed under this Agreement.
13. GENERAL PROVISIONS
13.1 NOTICES
Notices to Customer shall be sent to the address on the initial page and to
Cadence at 555 River Oaks Parkway, San Jose, California 95134 USA, Attn: Legal
Department, or such new address as a party specifies to the other in writing.
13.2 EXPORT
The Fixed Term License(s) granted hereunder does not permit export of the
Licensed Programs without the prior written consent of Cadence. The Licensed
Programs, Documentation and all related technical information or materials are
subject to export controls and (are or may be) licensable under the U. S.
Government export regulations. Customer will not export, re-export, divert,
transfer or disclose, directly or indirectly the Licensed Programs,
Documentation and any related technical information or materials without
complying strictly with all legal requirements including without limitation
obtaining the prior approval of the U. S., Department of Commerce and, if
necessary, other agencies or departments of the U.S. Government. Licensee will
execute and deliver to Cadence such "Letters of Assurance" as may be required
under applicable export regulations. Customer shall indemnify Cadence against
any loss related Customer's failure to conform to these requirements.
13.3 ASSIGNMENT
(a) NO ASSIGNMENT: Customer may not delegate, assign or transfer this
Agreement, nor any of its rights and obligations under this Agreement, without
the prior written consent of Cadence, which consent shall not be unreasonably
withheld or delayed. Customer agrees that this Agreement binds Customer and each
of its affiliates and the employees, agents, representatives and persons
associated with any of them. Without limitation of the foregoing, in the event
of a sale of substantially all the assets of Customer, a merger, a
re-organization, or change in control of fifty percent (50%) or more of the
equity of Customer (a "CHANGE IN CONTROL"), no transfer or assignment
(including, without limitation, an assignment by operation of law) of this
Agreement may be made without the prior written consent of Cadence, which
consent shall not be unreasonably withheld or delayed. As used in this
Agreement, assignment shall not include, and no consent shall be required, (1)
if Customer raises additional capital through sale of equity (either privately
or through a public offering) or debt instruments, provided that the additional
equity issued does not change the equity percentage held by existing owners
immediately prior to such offering more than 50%, (2) if Customer changes its
state of incorporation, (3) if Customer acquires a third party that does not
compete with Cadence, or (4) otherwise reorganizes its corporate structure
without a change in its equity structure. If Customer is acquired by or acquires
an unrelated third party or through merger forms a new corporation, Customer
shall notify Cadence no later than five business days following conclusion of
the merger
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providing such details as Cadence reasonably requests. Cadence shall either (a)
provide its consent to the acquisition, the provision of which shall not be
unreasonably withheld or delayed, (b) notify Customer in writing that it wishes
a six month period to evaluate the results of the acquisition, or (c) notify
Customer within ten business days that it objects to the acquisition setting
forth the business reasons therefor and any corrective action that it would
consider mitigation of its concerns. If Customer is unable to reasonably
mitigate the concerns expressed within 30 days following its receipt of such
notice, Cadence shall have the right to request alterations to the Agreement
that would make it acceptable, or if no alterations can be agreed upon, then the
parties agree to resolve such dispute in accordance with the dispute resolution
provisions of this Agreement. Customer and Cadence agree that legitimate
concerns by Cadence include, but are not limited to, (i) acquisition of Customer
by a competitor of Cadence, and (ii) acquisition of Customer at a price that is
substantially less than the value of the Cadence Software licenses held by
Customer.
(b) ASSIGNMENT OF LICENSE FEES: Cadence may sell or assign the License Fees
owing under this Agreement to third-parties ("Assignee"). Upon written notice to
Customer that the right to the License Fees hereunder has been assigned, in
whole or in part, Customer shall, if requested, pay all assigned amounts
directly to Assignee. Customer waives and agrees it will not assert against
Assignee any abatement, set-off, claim, counterclaim, adjustment, reduction, or
defense for any reason, including, but not limited to, any claims that Cadence
failed to perform under this Agreement or termination of this Agreement, it may
have against Cadence. Customer waives all rights to make any claim against
Assignee for any loss or damage to the Licensed Programs or breach of any
warranty, express or implied, as to any matter whatsoever, including but not
limited to the Licensed Programs and service performance, functionality,
features, merchantability or fitness for a particular purpose, or any indirect,
incidental or consequential damages or loss of business.
(c) OBLIGATIONS: Customer shall pay Assignee all License Fees due and
payable under this Agreement, but shall pursue any claims under this Agreement
against Cadence. Except as provided in SECTION 5, neither Cadence nor its
Assignees will interfere with Customer's quiet enjoyment or use of the Licensed
Programs in accordance with this Agreement's terms and conditions.
Notwithstanding any assignment by Cadence, Cadence shall remain obligated to
perform all of its obligations under this Agreement.
13.4 U. S. GOVERNMENT CONTRACT PROVISIONS
This Agreement is for Customer's temporary acquisition of Licensed
Programs for its internal Use. No Government procurement regulation or
contract clauses or provision shall be deemed a part of any transaction
between the parties under this Agreement unless its inclusion is required by
law, or mutually agreed upon in writing by the parties in connection with a
specific transaction. Customer acknowledges that Cadence represents that: (i)
the Licensed Programs are unpublished, "COMMERCIAL COMPUTER SOFTWARE AND
COMMERCIAL COMPUTER SOFTWARE DOCUMENTATION" subject to "RESTRICTED RIGHTS"
usage limitations, as such italicized terms are discussed in 48 CFR Section
227.401 and any other equivalent Government regulation; (ii) that the
Licensed Programs were developed exclusively at private expense, that no part
was developed with Government funds, nor is any part in the public domain;
and (iii) that such items constitute trade secrets of Cadence for all
purposes of the Freedom of Information Act.
13.5 FORCE MAJEURE
Except for Customer's obligation pursuant to Section 4, neither party shall
be liable to the other party for delay in performing its obligations, or failure
to perform any such obligations under this Agreement, if the delay or failure
results from circumstances beyond the reasonable control of the party, including
but not limited to, any acts of God, governmental act, fire, explosion,
accident, war, armed conflict or civil commotion. In the event of any such delay
the time for performance shall be extended by the amount of time lost by reason
of such delay provided however should an event of force majeure described in
this section delay either party's performance in any material respect for a
period of more than 90 days, then the other party shall have the option, upon
giving written notice, to terminate this Agreement or the relevant order or
portion thereof affected by the delay.
13.6 WAIVER AND SEVERABILITY
Failure by either party to enforce at any time any of the provisions of
this Agreement, or to exercise any election of options provide herein, shall not
constitute a waiver of such provision or option, nor affect the validity of this
Agreement or any part thereof, or the right of the waiving party to thereafter
enforce each and every such provision. If any provision of this Agreement is
held invalid or unenforceable, the remainder of the Agreement shall continue in
full force and effect.
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13.7 GOVERNING LAW
This Agreement will be governed by the procedural and substantive laws of
the State of California, U.S.A., without regard to its conflicts of laws
principles. This Agreement is prepared and executed and shall be interpreted in
the English language only, and no translation of the Agreement into another
language shall have any effect. The parties agree that the United Nations
Convention on Contracts for the International Sale of Goods (1980) is
specifically excluded from and shall not apply to this Agreement.
13.8 DISPUTE RESOLUTION
The parties shall attempt in good faith to resolve any issues arising
in connection with Maintenance Services provided under this Agreement informally
according to the following procedure. Upon written request of a party
identifying an issue to be resolved, each party will designate a management
representative with the responsibility and authority to resolve the dispute. The
designated management representatives shall meet preliminarily within seven (7)
days after the request is received from the requesting party. At this first
meeting, the designated management representatives shall identify the scope of
the issue and the information needed to discuss and attempt to resolve the
issue. These management representatives shall then gather relevant information
regarding the dispute and shall meet to discuss the issues and negotiate in good
faith to resolve the dispute. Such second meeting shall occur within fifteen
(15) days of the first meeting. If no resolution is reached following such
second meeting, designated executives from Cadence and Customer shall meet
within fifteen (15) days and negotiate in good faith to resolve the issue.
13.9 ENTIRE AGREEMENT
This Agreement and the Attachments hereto is the complete and exclusive
statement of the agreement between the parties and supersedes all proposals,
oral or written, and all other communications between the parties relating to
the subject matter of this Agreement. Only a written instrument duly executed by
authorized representatives of Cadence and Customer may modify this Agreement.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT AS OF
THE EFFECTIVE DATE.
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CUSTOMER:
By: /s/ Duane W. Bell
--------------------------
Name: Duane W. Bell
Title: Senior Vice President, Chief Financial Officer
Date: October 4, 2000
CADENCE DESIGN SYSTEMS, INC.
By: /s/ R.L. Smith McKeithen
--------------------------
Name: R.L. Smith McKeithen
Title: Senior Vice President and General Counsel
Date: October 4, 2000
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