SOFTWARELICENSE AND MAINTENANCE AGREEMENT
AgreementNo.:SLMA-Bolikang-EW050401
Date of Agreement:
2012.5.4
ThisSoftwareLicenseandMaintenanceAgreement(“Agreement”), entered into as of the date specified above, is by and betweenCadence Design Systems (Ireland) Ltd, an Ireland corporation having a principal place of business at East Point Business Park, Fairview, Dublin 3, Ireland (“Cadence”), andNanjing Bolikang Electronics Co,.LTD, having a place of business at No.37 General Avenue,Cuiping Hi-tek Park ,Nanjing,China
(“Customer”). Customer desires to obtain from Cadence, either directly or through an authorized Cadence reseller, rights to Use certain Licensed Materials on either a Subscription or 99-year License basis, as defined below. License Keys to the Licensed Materials may be purchased either from Cadence or an authorized Cadence reseller. Therefore, Cadence and Customer agree as follows:
1.DEFINITIONS
The following definitions apply herein:
(a)“AcquiredCadenceSoftware” means Software acquired by Cadence after the commencement of the Term of Use in a Product Quotation as the result of an acquisition by Cadence of either a third party, or the technology of a third party.
(b)“DesignElements”means library elements, libraries, symbols, simulation or behavioral models, circuit and logic elements and any Updates thereto included with, and used in conjunction with Software.
(c)“DesignatedEquipment” means either: (i) a server identified by serial number, or host I.D. on which the Licensed Materials are stored, or; (ii) a computer or workstation, as identified by its serial number, host I.D. number or ethernet address, to which the Licensed Materials are downloaded and Used only upon the issuance of a License 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.
(d)“Documentation” means the user manuals and other written materials that describe the Software, its operation and matters related to its Use, 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.
(e)“EffectiveDate” means the date specified in each Product Quotation representing the commencement of the Term of Use for the Licensed Materials.
(f)“Initial Configuration” means the specific group of Licensed Materials listed in each Product Quotation that represents the Licensed Materials available for Use by the Customer on the Effective Date.
(g)“LicenseKey” means a physical or electronic activation key provided to a Customer that authorizes: (i)
the Licensed Materials, including version number and quantity that is licensed to a Customer; (ii) the Designated Equipment; and (iii) the codes that Customer must input to access the Licensed Materials on the Designated Equipment.
(h)“LicensedMaterials” means the specific group of Software, Design Elements and the associated Documentation licensed to Customer. Unless otherwise specified in the Product Quotation, Licensed Materials excludes New Technology, Upgrades and Acquired Cadence Software.
(i)“MaintenanceService(s)” shall mean the services which Cadence makes available to Customer related to the Licensed Materials as is more particularly described in Section 9 (Technical Support) herein.
(j)“NewTechnologyorUpgrade”means any 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, but rather is only provided subject to payment of a separate fee. Acquired Cadence Software, New Technology and Upgrades are not covered by, and will not be provided in consideration of the Fees already paid by Customer unless otherwise specified in a Product Quotation.
(k)“ProductQuotation” means a written quotation from Cadence (or one of its affiliates) to Customer identifying the Licensed Materials, 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.
(l)“Remix” means the exchange of Licensed Materials for other or additional Licensed Materials subject to the limitations set forth in the applicable Product Quotation.
(m)“Software” means any applications programming code or executable computer program(s), and any Updates thereto.
(n)“Subscription”means the license of Software
for a fixed period of time that is less than 99 years in which the Fee for Maintenance Services is included within the Fees quoted for the entire Term of Use.
(o)“Subsidiary” means an entity: (a) more than fifty percent (50%) of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, now or hereafter owned or controlled, directly or indirectly, by Customer; or (b) which does not have outstanding shares or securities as may be the case in a partnership, joint venture or unincorporated association, but more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for such entity is now or hereafter, owned or controlled, directly or indirectly, by Customer; but such entity shall be deemed to be a Subsidiary only so long as such ownership or control exists.
(p)“TermofUse”means that period of time Customer has Use of the Licensed Materials as specified in each Product Quotation.
(q)“ThenCurrentConfiguration” means the specific group of Licensed Materials being Used by Customer after Remix.
(r)“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. Updates may include revisions to the Documentation. Updates do not include any Acquired Cadence Software, Upgrades or New Technology.
(s)“Use” means copying all or any portion of Software, Design Elements and/or License Key into the Designated Equipment or transmitting it to the Designated Equipment for; (i) executing or processing instructions contained in the Software, (ii) using, executing or modifying any of the Design Elements, or (iii) loading data into or displaying, viewing or extracting output results from or otherwise operating any portion of the Software or Design Elements, solely for the purpose of Customer’s internal design and manufacture of electronic circuits and systems.
(t)“99-yearLicense” means the license of Software for a period of 99 years in which the Licensee Fees are quoted separately from Maintenance Fees and in which Maintenance Services are not automatically included during the Term of Use, except for the first year.
2.SCOPE AND BACKGROUND
Under this Agreement Customer can: (i) acquire licenses for a specific number of Licensed Materials and related Documentation on either a Subscription or 99-year License basis, and (ii) obtain Maintenance Services for the Licensed Materials pursuant to the provisions of this Agreement. With the exception of 99-year licenses, all Software licensed on a Subscription basis, may be Used on a wide area network (“WAN”) basis as described in the applicable Product Quotation. For any Software acquired
by Customer through an authorized Cadence reseller the following provisions of this Agreement shall not apply: 4, 6, 13.3(b) and 13.3(c). 99-year Licenses must be Used within five (5) miles of the Designated Equipment. While Cadence shall remain the “licensor” for purposes of the grant of the licenses and other rights hereunder, and Customer shall remain the “licensee” for purposes of the obligations contained herein, Customer shall contract directly with the authorized Cadence reseller for the purchase of License Keys and any Maintenance Services on Software provided by such authorized Cadence reseller.
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 Sections 3(b) and 3(c), Cadence, either directly or by and through one of its affiliates, hereby grants Customer, for the Term of Use as specified in each Product Quotation, a non-transferable, non- exclusive, license to: (i) Use the quantity of Licensed Materials identified in the applicable Product Quotation on the Designated Equipment as established by the number of License Keys issued for the Licensed Materials; and (ii) Use the Documentation as is reasonably necessary for Customer’s licensed Use of the Licensed Materials. All rights not expressly granted to Customer pursuant to this Agreement are reserved by Cadence. Cadence may also agree to provide Customer with an evaluation license for Licensed Materials under this Agreement. Such evaluation licenses shall be evidenced by a Product Quotation designating such Licensed Materials as provided for evaluation purposes only. In such event Section 9 (Technical Support) and Section 10 (Proprietary Rights Indemnity) of this Agreement shall not apply. Unless specifically granted in such Product Quotation, such evaluation licenses may not be accessed through WAN and may not be Used by subcontractors.
(b)Limitations:All rights, title and interest in the Licensed Materials shall remain the exclusive property of Cadence and/or its licensors. The Licensed Materials 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 Materials except as expressly permitted herein. Customer may only Use those Licensed Materials specified in the applicable Product Quotation. Customer shall not modify, disassemble, decompile or reverse translate or create derivative works from the Licensed Materials or otherwise attempt to derive the source code, or let any third party do so. No right or license is granted or implied under any of Cadence, or its licensors’, patents, copyrights, trademarks, trade names, service marks or other intellectual property rights to Use the Licensed Materials or to authorize others to Use the Licensed Materials beyond the rights and restrictions set forth in this Agreement. By way of example and not limitation, Customer shall not disclose to any third party any benchmarking of; (i) the Software or Design Elements or
(ii) the output of any Software or Design Elements (which
means any form of competitive analysis of the Licensed Materials versus competitive tool products), nor permit any third party to do so. Customer shall not remove or alter any of Cadence’s or its licensors’ restrictive or ownership legends appearing on or in the Licensed Materials and shall reproduce such legends on all copies permitted to be made. Customer may periodically Remix the Initial Configuration or the Then Current Configuration only if specified in the Product Quotation and subject to the limitations set forth in the Product Quotation. Upon request by Cadence, Customer shall execute a Certificate of Discontinued Use upon the completion of each Remix for those Licensed Materials that are exchanged or terminated in the Remix.
(c)Restrictions:Customer shall not let the Licensed Materials be accessed or used by third parties or anyone other than Customer’s employees whose duties require such access or use. Notwithstanding the foregoing, Customer’s authorized consultants and subcontractors (excluding any direct competitors of Cadence) may Use the Licensed Materials on the Designated Equipment at a Customer facility only, where such Use is incidental to their performing services on Customer’s behalf. Such Use by authorized consultants and subcontractors must be consistent with the license granted to Customer hereunder and Customer must first require such authorized consultants and subcontractors to sign written agreements obligating them to observe the same restrictions concerning the Licensed Materials as are contained in this Agreement. In connection with activities under this Agreement, Customer may provide to Cadence suggestions, descriptions, data feedback and other information, either orally or in writing (collectively, “Feedback”) concerning the Licensed Materials. Customer hereby grants to Cadence and its affiliates, a non- exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to make, use, sell, reproduce, modify, sublicense, disclose, distribute and otherwise exploit any such Feedback. In addition, Cadence shall be the sole owner of any modifications, additions or other changes made to the Licensed Materials based upon such Feedback. The Licensed Materials may contain certain software applications and portions of applications which are provided to Customer under terms and conditions which are different from this Agreement (such as open source or community source), or which require Cadence to provide Customer with certain notices and/or information (“Excluded Code”). Cadence will identify such Excluded Code in a text file or about box or in a file or files referenced thereby (and shall include any associated license agreement, notices and other related information therein), or the Excluded Code will contain or be accompanied by its own license agreement. Customer’s Use of the Excluded Code will be subject to the terms and conditions of such other license agreement solely to the extent such terms and conditions are inconsistent with the terms and conditions of this Agreement or are required by such other license agreement. By using or not uninstalling such Excluded Code after the initial installation of the
Excluded Code Customer acknowledges and agrees to all such license agreements, notices and information.
(d)Records;Audit. Customer shall keep full, clear and accurate records to confirm its authorized Use of the Licensed Materials hereunder, including but not limited to ensuring that Customer has not exceeded the number of authorized copies of Licensed Materials and other obligations hereunder. Cadence shall have the right to audit such records during regular business hours to confirm Customer's compliance with its obligations hereunder. Customer shall promptly correct any deficiencies discovered by such audit including payment to Cadence of the amount of any shortfall in Fees uncovered by such audit plus interest at the rate set forth in Section 4(a) below. If the audit uncovers any shortfall in payment of more than five percent (5%) for any quarter, then Customer shall also promptly pay to Cadence the costs and expenses of such audit, including fees of auditors and other professionals incurred by Cadence in connection with such audit.
4.FEES; TAXES
(a)Fees and Payment:Customer shall pay Cadence the license fees (“LicenseFees”) and maintenance services fees (“MaintenanceServicesFees”) (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 (1½%) 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 continue unless terminated as provided in Section 5(c) (“Term”). The Term of Use for Licensed Materials shall continue unless the applicable Product Quotation is terminated as provided in Section 5(b). For Software licensed on a 99-year basis, Maintenance Services are only provided for the initial year. Maintenance Services are thereafter renewable by Customer for additional periods upon issuance of a Product Quotation by Cadence and payment by Customer of the Maintenance Services Fees.
(b)TerminationofProductQuotation:Any Product Quotation hereunder may be terminated by Cadence: (i) if Customer fails to pay when due all or any portion of any amounts payable under such Product Quotation, and such failure is not cured within ten (10) days after written notice; or (ii) in the event of a breach by Customer of any other material provision of the Product Quotation where Customer fails to correct such breach within thirty (30) days of its receipt of written notice thereof. In addition, in the event Customer fails to pay any Fees due under a Product Quotation, Cadence may delay delivery of any License Key until Customer pays such past due amounts.
(c)TerminationofAgreement:This Agreement may be terminated by Cadence immediately if; (i) Customer breaches any provisions of Section 3 herein, or
(ii) 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
(iii) if Customer breaches any other material provision of this Agreement and fails to correct such breach within thirty (30) days of its receipt of written notice thereof; or
(iv) 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). Termination of this Agreement shall immediately terminate any Product Quotations then in effect.
(d)Effect of Termination:Expiration or termination of a Product Quotation or the Agreement as specified in Sections 5(b) or 5(c) above, shall simultaneously terminate all Customer’s rights for licenses and Cadence’s obligations with respect thereto. Within thirty (30) days after such expiration or termination, Customer shall: (i) furnish Cadence written notice certifying that the original and all copies, including partial copies, of the Licensed Materials 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 the unpaid balance of the License Fees as set forth in the Product Quotation, together with any applicable Taxes. Sections 3(c), 4, 5(d), 11(b), 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 Materials 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 Materials and/or Maintenance Services ordered (by Cadence’s product numbers and nomenclature), and (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 directly or through an authorized Cadence reseller 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 such party’s rights hereunder. Cadence has the right to discontinue the sale of licenses of the Licensed Materials at any time. Discontinued Licensed Materials, or Licensed Materials for which Maintenance Services are no longer available, may no longer be Remixed by Customer or acquired during the Term of Use under a Product Quotation.
7.SHIPMENT
Upon execution of this Agreement and acceptance of an order by Cadence or an authorized Cadence reseller, all Cadence Software is available for download by Customer from Cadence, provided however Customer shall only Use Cadence Software for which a License Key has been purchased from either Cadence or an authorized Cadence reseller. Unless otherwise requested in writing by Customer as set forth herein, all Licensed Materials and License Keys shall be provided to Customer in electronic format only. Cadence agrees not to deliver to Customer and Customer agrees not to accept any Licensed Materials, excluding written or printed Documentation provided under this Agreement, including but not limited to CD ROM, tape or paper. In the event Customer requests the delivery of any tangible media, such request must be in writing and received at least ninety (90) days prior to the delivery of the Licensed Materials. Delivery of any tangible media requested by Customer hereunder shall be made F.O.B point of shipment. Customer shall pay all 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 Software for either of the following purposes only: (i) archival purposes; or (ii) for Use as a back-up when the Software is not operational. Customer may make a reasonable number of copies of Design Elements in connection with its authorized Use of such Design Elements. All legends, trademarks, trade names, copyright legends and other identifications must be copied when copying the Licensed Materials. Documentation may not be copied except for a reasonable number of printed copies from the Documentation provided by Cadence.
(b)Relocation:The Licensed Materials may only be moved from the Designated Equipment with Cadence’s prior written consent (“Relocation”). Customer will immediately return Cadence’s Request for Relocation and Certificate of Discontinued Use when the Licensed Materials are moved. Customer shall completely remove the Licensed Materials from the previous Designated Equipment. Any Relocation between different Customer sites shall be treated as a Remix.
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 of Use specified in a Product Quotation, the following technical assistance with respect to the Licensed Materials:
(a)Maintenance Services:
(1)TechnicalSupport:Cadence will make technical assistance available to Customer through Cadence Customer Support between 8:00 a.m. and 5:00 p.m., local time (the “PrimeShift”), Monday through Friday excluding Cadence’s holidays.
(2)IssueResolutionAssistance:Cadence will acknowledge receipt of Customer’s service request (a “SR”) within four (4) Prime Shift hours. Customer’s SR shall include a detailed description of the nature of the issue, 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 Update(s) for the Licensed Materials. 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™ online Customer support 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, subject to Cadence’s End Sale/End Support Process, Cadence will maintain only the most current version of the Licensed Materials. Cadence shall also maintain the last prior version of the Licensed Materials until the earlier of six (6) months from the release of each new version release, or termination of this Agreement.
(b)Customer’s Responsibilities:
Customer shall:
(1)Notification:Notify Cadence promptly through Cadence’s electronic problem reporting software available via SourceLink. 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:If requested by Cadence, allow Cadence access to the Designated Equipment and communication facilities during the 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 if Maintenance Services are performed on site at Customer’s facility and ensure that a Customer employee is present.
(4)TestTime:Provide sufficient support and test time on Customer’s Designated Equipment to allow Cadence to duplicate an error and verify if it is due to Licensed Materials, and when corrections are complete, acknowledge that the error has been resolved.
(5)StandardofCare:Provide the same standard of care for the Licensed Materials that Customer applies to its own products or data of like value to its business and return any defective Licensed Materials or attest in writing to the destruction of same as directed by Cadence.
(6)Support:Promptly inform Cadence in writing if Customer develops interfaces to the Licensed Materials, and provide such information as Cadence determines necessary to properly maintain the Licensed Materials.
(7)DataNecessary:Provide data sufficient to enable Cadence to replicate a reported error on its own computers at the CRC.
(c)ExcludedServices: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 Materials from one unit of Designated Equipment to another or from the Customer location; or making changes due to Customer’s decision to reconfigure the Licensed Materials 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 Materials on a hardware platform other than the Designated Equipment; or use of other than the most current or last prior release of the Licensed Materials as specified in Section 9(a)(5); 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 to supply adequate backups.
(d)AdditionalServices: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 defend at its own expense, or its option reimburse Customer for reasonable costs of defense, in connection with any legal action brought against Customer to the extent that it is based on a claim or allegation that any Software infringes a U.S. patent or copyright of any third party, and Cadence will pay any 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 necessary for defense and settlement of the claim. Should any Licensed Materials, 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 Materials, replace or modify the Licensed Materials so that they become non- infringing, or terminate the license granted hereunder for such Licensed Materials and refund to Customer the Fees (less a reasonable charge for the period during which Customer has had availability of such Licensed Materials 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 Licensed Materials other than by Cadence, with or without authorization; or
(ii) results from failure of Customer to Use an Updated version of the Licensed Materials; or (iii) is based on the combination or Use of a Licensed Materials 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 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 Materials. THE FOREGOING STATES CADENCE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR PROPRIETARY RIGHTS INFRINGEMENT.
11.LIMITED WARRANTY
(a)Cadence warrants for thirty (30) days after shipment that the recording media by which the Licensed Materials 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 Materials will meet Customer’s requirements or that Use of the Licensed Materials will be uninterrupted or error free. As Customer’s exclusive remedy and Cadence’s entire liability for breach of the warranty herein, Cadence will provide a replacement magnetic media containing the Licensed Materials ordered by Customer.
(b) EXCEPT AS PROVIDED ABOVE, CADENCE, ITS LICENSORS AND IT’S AUTHORIZED RESELLERS MAKE NO WARRANTIES TO CUSTOMER WITH RESPECT TO THE LICENSED MATERIALS OR ANY SERVICE, ADVICE, OR ASSISTANCE FURNISHED HEREUNDER, AND NO WARRANTIES OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, 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.LIMITATIONOF 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 Materials or Maintenance Services furnished hereunder shall not exceed, to the extent collected by Cadence, the Fees actually received by Cadence from Customer under a Product Quotation for the Licensed Materials 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.CADENCE, ITS LICENSORS AND IT’S AUTHORIZED RESELLERS SHALL NOT 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.
13.GENERAL PROVISIONS
13.1NOTICES
Notices to Customer shall be sent to the address on the initial page and to Cadence at 2655 Seely Avenue, San Jose, California 95134 USA, Attn: Legal Department or such new address as a party specifies to the other in writing.
13.2EXPORT
The Licensed Materials may not be exported without the prior written consent of Cadence. The Licensed Materials 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 Materials 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 to Customer’s failure to conform to these requirements.
13.3ASSIGNMENT
(a)NoAssignment:Customer may not delegate, assign or transfer this Agreement, or any of its rights and obligations under this Agreement, and any attempt to do so shall be void. 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, an assignment, delegation or transfer shall include, but not be limited to 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 "ChangeinControl"). No transfer, delegation or assignment (including, without limitation, an assignment by operation of law) of this Agreement may be made without the prior written consent of Cadence. Such prior written consent by Cadence may be withheld at Cadence’s sole discretion. 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 result in a Change in Control, (2) if Customer changes its state of incorporation, or (3) if Customer reorganizes its corporate structure without a change in its equity structure.
(b)AssignmentofLicenseFees: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 it may have against Cadence for any reason, including, but not limited to, any claims that Cadence failed to perform under this Agreement or termination of this Agreement. Customer waives all rights to make any claim against Assignee for any loss or damage to the Licensed Materials or breach of any warranty, express or implied, as to any matter whatsoever, including but not limited to the Licensed Materials 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:In the event Cadence assigns the Fees due hereunder, 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 Materials in accordance with this Agreement’s terms and conditions. Notwithstanding any assignment of the Fees 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 Materials 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 the Licensed Materials and Documentation consist of "commercial computer software" and "commercial computer software documentation" as such terms are defined in 48 C.F.R. 252.227-7014(a)(1) (JUN 1995) and such Licensed Materials are “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R.
12.212 (OCT 1995); that such Licensed Materials and Documentation constitute trade secrets of Cadence for all purposes of the Freedom of Information Act and if provided to the Government for; (i) acquisition by or on behalf of civilian agencies, are provided in accordance with the policy set forth in 48 C.F.R.12.212; or (ii) acquisition by or on behalf of units of the Department of Defense, in accordance with the policies set forth in 48 C.F.R 227.7202-1 (JUN 1995) and 227.7202-3 (JUN
1995).
13.5FORCE MAJEURE
Except for Customer’s payment 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.
13.6WAIVER and SEVERABILITY
Failure by either party to enforce at any time any provision 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.
13.7GOVERNING LAW
The procedural and substantive laws of the State of California, U.S.A., without regard to its conflicts of laws principles, will govern this Agreement. Any action brought to enforce this Agreement or its terms shall be brought within the state or federal courts of Santa Clara County, California. 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.
13.8SUBSIDIARIES.
Subsidiaries of Customer may also order and Use Licensed Materials from Cadence under, and subject to the terms of, this Agreement. Each Subsidiary will have the same rights, duties and obligations as Customer under this Agreement. Customer agrees that it is responsible for enforcing the duties and obligations of each Subsidiary.
13.9ENTIRE AGREEMENT
This Agreement and the attachments hereto are the complete and exclusive statement of the agreement between the parties and supersede 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 DATE OF AGREEMENT SET FORTH ABOVE.
CUSTOMER:
Nanjing Bolikang Electronics Co,.LTD
CADENCEDESIGNSYSTEMS(IRELAND)LTD
Signed By:(Signature) Signed By:(Signature)Name:(please print) Name:(Please print)Title: Title:Date: Date:
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