1. Licensed Technology; Additional License Terms
1.1 Licensed Technology: The “Licensed Technology” licensed to Licensee hereunder is comprised solely of (i) those listed under on the Purchase Agreement to which these Terms and Conditions are attached; (ii) any user manuals, reference manuals, release, application, and methodology notes, written utility programs, and other materials in any form provided by Licensor for use with a Licensed Technology (“Documentation”); and (iii) any improvements to or enhancements of the foregoing delivered hereunder (e.g., under Support Services).
1.2 Additional License Terms: Additional terms and conditions may apply to certain open source or third-party components of the Licensed Technology, which terms will be provided to the Licensee and which must be affirmatively accepted in order to exercise the licenses herein. If such additional terms and conditions conflict in any way with the terms and conditions stated here, the additional terms and conditions will prevail.
2. Express Limited Licenses
2.1 Evaluation Licenses: If the Licensor grants the Licensee an evaluation license for Licensed Technology as stated on the Purchase Agreement, the Licensed Technology may only be used for the purpose of evaluating it and deciding whether to purchase a full license under Article 2. None of the warranty or indemnification provisions in the Agreement apply to evaluation licenses.
2.2 License Rights: Subject to the terms and conditions of this Agreement, including but without limitation to timely payment of all applicable fees, and the Licensee remaining in full compliance with this Agreement (e.g., Section 2.4), Licensor grants the Licensee a nonexclusive license, under Licensor’s Intellectual Property Rights in the Licensed Technology, solely to: (a) reproduce the Licensed IP Core for the sole purpose of embedding such Licensed IP Core, in unmodified form unless otherwise agreed in writing, into the applicable Licensed Product; (b) internally use, reproduce, perform, and display the applicable Licensed Tools solely to design, test, and verify the proper functioning of the Licensed IP Core as embedded into the applicable Licensed Product; and (c) manufacture (or have manufactured by a third party, as described in Section 2.3) the applicable Licensed Products incorporating the unmodified Licensed IP Core; provided that all Licensed Products must make appropriate reference to their use of Licensor Licensed Technology. Except as described in Section 2.3, such license is not sub-licensable; and the Licensee will allow only the employees or third-party contractors who are on the design team responsible for the Licensed Product to access the Licensed Technology. The Licensee is responsible for the acts and omissions of employees, agents, and permitted contractors and third-party manufacturers with respect to any use of the Licensed Technology or Licensor Confidential Information, including any breaches by any of them. When the above license or the Agreement expires or is terminated, the Licensee may no longer use the Licensed Technology.
2.3 Third-Party Manufacturers: The Licensee may have a third-party manufacturer make Licensee Products incorporating the Licensed IP Cores if: (i) the resulting Licensee Products must be made for sale or use only by the Licensee; (ii) the Licensed IP Cores are solely provided to the manufacturer as embedded in the GDS file (for ASICs) or programming bitstream (for FPGAs) for the complete Licensed Product, and only for the purpose of making the Licensee Products for the Licensee, and subject to confidentiality provisions that are at least as protective as those in this Agreement; and (iii) the source code for any Licensee Technology is not given to the manufacturer.
2.4 Restrictions: The Licensee may not (and may not allow anyone else to): (i) copy or use (or provide access to) any Licensed Technology in any manner that is not expressly allowed by this Article 2; (ii) decompile, decrypt, reverse engineer, disassemble, or otherwise reduce to a human-perceivable form any Licensed Technology or any underlying algorithms, techniques, or ideas, or attempt to derive the source code for any Licensed Technology not delivered to the Licensee by the Licensor in source code form; (iii) tamper with, or attempt to circumvent or disable, any license key or other technological restriction on the Licensed Technology; (iv) modify or create a derivative work of any part of the Licensed Technology, unless otherwise agreed in writing; or (v) make copies of a Licensed Technology unless the Licensee reproduce all copyright, trademark, and other notices that appear on the original copy ; or (vi) shall not hypothecate, rent, lease, loan, lend, time-share, sublicense or otherwise transfer the Licensed Materials.
2.5 Assignment: The Licensee may assign the license rights only: (i) pursuant to a Change of Control; and (ii) subject to the surviving or acquiring entity in the Change of Control agreeing in writing to be bound by all the terms and conditions of this Agreement. “Change of Control” means a change in the Licensee’s ownership structure representing more than fifty percent (50%) of the equity ownership, or the sale of all or substantially all the Licensee’s assets.
2.6 Ownership of IP Rights: Licensor and its licensors own all Intellectual Property Rights in the Licensed Technology, and all improvements to, derivative works of, or enhancements to the Licensed Technology, whether made by Licensor, by the Licensee, or by the Licensee and Licensor jointly, hereunder and under any Statement of Work and the Licensee hereby assigns any right the Licensee has or may acquire in any of the foregoing. “Intellectual Property Rights” means all patent rights, copyrights, trade secret rights, mask works, and trademark rights (including service marks and trade names), and any applications for these rights, in all countries. The Licensee’s only rights in the Licensed Technology are the rights expressly granted in this Article 2; there are no implied licenses under this Agreement and all other rights are reserved by Licensor. Licensor’s licensors are third-party beneficiaries of, and thus may enforce against the Licensee, the license restrictions and confidentiality obligations in this Agreement with respect to their respective Intellectual Property Rights and proprietary information. In addition, Licensor may freely use and disseminate any Feedback the Licensee provides. The Licensee agrees not to claim that Licensor owes any compensation for its use or dissemination of such Feedback. “Feedback” means any ideas or suggestions the Licensee voluntarily provides to Licensor (in any manner, whether in writing or orally or otherwise) regarding the Licensed Technology, including possible enhancements or improvements.
3. Professional Services; Delivery of Licensed Technology
3.1 Professional Services: If a Statement of Work is incorporated into this Agreement, Licensor will commence the professional services in such Statement of Work promptly after the Effective Date or, if an initial fee is required on the Effective Date, promptly after the receipt of such fee.
3.2 Delivery: Following receipt of all required license fees and completion or (if applicable) acceptance of the professional services under the Statement of Work, Licensor will deliver the Licensed Technology pursuant to the delivery method stated in the Purchase Agreement.
4. Consideration and Payment
4.1 Consideration: The consideration for products and services the Licensee may purchase under this Agreement are set forth in the Purchase Agreement. The Licensee agrees to pay such consideration according to the terms of this Agreement.
4.2 Payments: Unless otherwise set out in the Purchase Agreement, payment of consideration will be due within 30 days after the date of Licensor’s invoice. With respect to Support Services, payment is due in advance of the annual Support Services term. The initial Support Services term shall begin on the delivery of the Licensed Technology pursuant to Section 3.2 above, and Licensor may deliver its invoice for Support Services fees on or after such date. If the Licensee does not pay an amount by the scheduled due date, Licensor will have the right to withhold the delivery of Licensed Technology and/or terminate this Agreement. All payments are non-refundable. The Licensee may not offset any amounts it believes Licensor owes against any payments the Licensee makes to Licensor hereunder. The Licensee must make payments in the currency specified in the Purchase Agreement. If the Licensee does not pay an amount by the due date, the Licensee must also pay a late payment charge of 1.5% per month or the highest rate permitted by law, whichever is less.
4.3 Royalty Reporting and Payment: If royalties are due, then within 30 days after the end of each calendar quarter following the Effective Date, the Licensee will submit a royalty report to Licensor, on a form approved by Licensor, that accurately sets forth the number of units of each Licensee Product that was sold, distributed, or otherwise disposed of during that quarter, along with payment of all reported amounts. The Licensee must submit a royalty report even during quarters where the Licensee reports no sales, distributions, or disposals of Licensee Products. Note that the Licensee will continue to be obligated to make royalty reports and pay royalties until the Licensee permanently discontinues sales or distributions of the applicable Licensee Product. In the event of such a discontinuation, the Licensee will provide Licensor with a written certification that the Licensee Product has been discontinued, along with a final royalty report for the applicable Licensee Product. The Licensee shall keep full, clear, and accurate records regarding the Licensee’s use of the Licensed Technology, sales and other disposals of Licensee Products, and royalties due hereunder.
4.4 Taxes: The Licensee will be solely responsible for paying all taxes (including sales, use, consumption, withholding, and value-added taxes and similar taxes), other than Licensor’s income taxes, that are imposed on or result from the purchase, license, or use of Licensor products and services. If Licensor is required by law to collect and remit any such taxes, Licensor may invoice the Licensee for such taxes and the Licensee must pay the invoiced amount to Licensor. If the Licensee is required by the respective jurisdiction where the Licensed Technology is used, or where services are provided, to withhold taxes from payments to Licensor, the Licensee may withhold from the total amount due to the respective Licensor distributing entity the minimum amount required (but no more). The Licensee may only withhold taxes related to payment at the time of such payment. The Licensee must then promptly pay that amount to the appropriate tax authority and provide the Licensor with an official receipt for the payment within 60 days of the payment.
4.5 Bankruptcy: If the Licensee becomes the subject of any bankruptcy, dissolution, liquidation, or similar proceedings or makes a general assignment for the benefit of its creditors, Licensor may apply any payments the Licensee have previously made to Licensor for products or services not yet delivered by Licensor against any amounts the Licensee owe Licensor at that time for products or services that have been delivered.
5. Support Services
5.1 Support Services: “Support Services” consist only of the following:
- Support: Licensor will provide the Licensee with remote (telephonic and email) access to Licensor support personnel between the hours of 9:00 AM and 5:00 PM Central European Time (CET), excluding Licensor’s scheduled holidays, with the scope and type of such support being subject to Licensor’s standard support methodology. A valid corporate email address is required to access online support.
- Updates: Licensor will use commercially reasonable efforts to provide Error corrections to the Licensed Technology, as well as minor improvements to the Licensed Technology, as such corrections and improvements become generally available. Any other upgrades or enhancements to the Licensed Technology are not made available by Licensor as part of Support Services and may be subject to additional charges. “Error” means a reproducible defect in the Licensed Technology that causes it to deviate substantially from the functional specifications in the corresponding Documentation.
5.2 Updates to Terms: Licensor may update its Support Services terms on 60 days prior to written notice, provided that these updates are applied generally to all Support Service customers.
5.3 Conditions: In order to receive Support Services for a Licensed Technology, the Licensee must: (i) have purchased Support Services for such Licensed Technology; (ii) appoint a qualified contact person trained in the use of such Licensed Technology to interface with Licensor regarding Support Services, and identify such person to Licensor in advance; (iii) provide Licensor with access to the information and system facilities reasonably necessary to provide the Support Services; (iv) follow the directions provided by Licensor to resolve technical problems; (v) follow the operating instructions and procedures for the Licensed Technology as specified in the Documentation or provided by Licensor; and (vi) notify Licensor of any Error using Licensor’s current problem reporting procedure. Licensor will have no obligation to provide Support Services for any Licensed Technology that are damaged, modified (by anyone other than Licensor), incorporated into other systems, or installed in any computing environment not supported by Licensor; or for any problems caused by the Licensee’s negligence, abuse, misuse, or by any causes beyond Licensor’s reasonable control.
5.4 Reinstatement of Support Services: If Support Services are terminated for any reason, or if the Licensee wishes to renew Support Services more than thirty (30) days after Support Services have been terminated, the Licensee may be permitted to reinstate or renew Support Services, at Licensor’s sole option, provided that (i) Licensor offers Support Services to its customers generally for the Licensed Technology in question, and (ii) the Licensee pays the Licensor all applicable Support Services fees for the period during which the Licensee was off Support Services, and Licensor’s then-current reinstatement fee plus payment for the new Support Services term.
5.5 Limitation on Support Services: For the avoidance of doubt, Support Services are provided only with respect to the integration of the Licensed IP Cores into the Licensed Product as contemplated under Article 2 hereof. Without limiting the preceding sentence, Support Services will not be provided with respect to (i) the Licensed IP Cores other than as described in the preceding sentence, (ii) any other product or service of Licensor, or (iii) any product or service of any third party.
6.1 Confidentiality Obligations: Each party, with respect to the other party’s Confidential Information: (a) will not disclose it to any third party unless (i) the other party has given its specific and express prior written approval, (ii) the disclosure is expressly allowed under this agreement, or (iii) the disclosure is necessary to comply with a valid court order or subpoena; (b) will not use it for any reason other than to exercise its rights and perform its obligation under this agreement; and (c) will protect it from unauthorized dissemination in the same manner as that party protects its own Confidential Information, and in any event with reasonable precautions (which include limiting access to employees and contractors on a “need to know” basis).
6.2 Mandatory Disclosures: If the Licensee believes it must disclose Licensor’s Confidential Information in order to comply with a valid court order or subpoena, the Licensee must promptly notify Licensor and cooperate with Licensor if Licensor chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed. Licensor will do the same if it believes it must disclose the Licensee’s Confidential Information in these circumstances.
6.3 Additional Obligations: In addition to the Licensee’s general obligations of confidentiality regarding the Licensed Technology, the Licensee must ensure that each user of the Licensed Technology who is an independent contractor (not an employee of the Licensee) has access to and uses the Licensed Technology and Documentation abides by the terms of this Agreement.
6.4 Definition. “Confidential Information” of Licensor means (a) the Licensed Technology (in any form) and related Documentation; (b) all ideas and information (such as algorithms, design rules, and design techniques) contained or embodied in the Licensed Technology; (c) the prices, discounts, payment terms, and other information in this Agreement; (d) training materials including without limitation presentations, demonstrations, software and course handouts, and (e) any other confidential or proprietary information that Licensor provides in connection with this agreement. The Licensee’s “Confidential Information” is any confidential or proprietary information in (i) written form that is provided to Licensor in order for Licensor to fulfill orders and provide products and services to the Licensee under this agreement, and (ii) oral form that the Licensee provides to Licensor in order to receive Support Services; as long as the Licensor has been notifying in writing at the time of disclosure that such information is to be treated as confidential under this agreement. However, Feedback is not the Licensee’s Confidential Information. Also, “Confidential Information” does not include any of the following: (i) information that has become generally available to the public, through no fault of the receiving party and that is not still regarded as a trade secret under laws governing information that was negligently or maliciously distributed; (ii) information that the receiving party had already obtained in a tangible form, through lawful means, before obtaining it under this agreement; (iii) information that the receiving party developed independently, without the use of any materials or information obtained from the other party in connection with this Agreement; (iv) information that the receiving party has lawfully obtained, in a tangible form, from a third party that had the right to provide it to the receiving party; or (v) information that the disclosing party releases for publication in writing.
6.5 Prior Non-Disclosure Agreements: If there is a separate pre-existing NDA or similar confidentiality agreement between the Licensee and the Licensor (“Prior NDA”), this Prior NDA takes precedence over this Article 6.
7. Term and Termination
7.1 Term of Agreement: The term of this Agreement will begin on the Effective Date and will continue in effect unless terminated sooner by either party as provided herein, or in the case of Support Services if Support Services are not renewed.
7.2 Rights to Terminate: Each party has the right to terminate this Agreement, by giving written notice of termination to the other party, if (a) the other party breaches this Agreement and (b) either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching party within 15 days after receiving written notice of the breach from the non-breaching party.
7.3 Consequences of Termination: If and/or when either the Licensee or Licensor terminates this Agreement, all licenses in effect at that time will also terminate. When this Agreement expires or is terminated: (a) the Licensee must immediately cease all use of the Licensed Technology, promptly return to Licensor, or destroy all copies of the Licensed Technology and Documentation in the Licensee’s possession or control and certify in writing to Licensor that the Licensee has so complied; and (b) the provisions of Sections 2.4, 2.6, and 8.2, and Articles 4, 6, and 9 will remain in effect.
8. Express Limited Warranty
8.1 Warranty: For a period of six (6) months after (i) initial delivery of Licensed Technology hereunder or (ii) if applicable, after completion of work under the Statement of Work (the “warranty period”), Licensor warrants that the Licensed Technology will substantially conform to its corresponding Documentation. This warranty will be void if the Licensee, or anyone else other than Licensor, modifies or attempts to modify the Licensed Technology. To claim a breach of warranty, the Licensee must, during the warranty period, notify Licensor in writing of the nonconformity and provide Licensor with all the information the Licensee has, in written or electronic form, so that Licensor can attempt to reproduce, diagnose, and correct the nonconformity. The exclusive remedy for any breach of this warranty is that Licensor will use commercially reasonable efforts to (at Licensor’s option) correct the nonconformity that has been reported or provide a replacement product that does not contain these nonconformities, or if Licensor is unable to provide a correction or a replacement or determines that it will not be feasible to do so, Licensor will refund the License Fees paid for that Licensed Technology.
8.2 DISCLAIMER: THIS IS THE ONLY WARRANTY LICENSOR PROVIDES FOR THE LICENSED TECHNOLOGY, ANY RELATED SERVICES, OR THIS AGREEMENT. EXCEPT FOR THIS WARRANTY, ALL LICENSED TECHNOLOGY AND SERVICES ARE PROVIDED “AS IS”. LICENSOR DISCLAIMS ALL OTHER WARRANTIES (EXPRESS, IMPLIED, OR STATUTORY), INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY OF ANY KIND IS PROVIDED WITH RESPECT TO SUPPORT SERVICES OR OTHER PROFESSIONAL SERVICES (E.G., UNDER THE STATEMENT OF WORK).
9. Other Terms
9.1 Audit and Compliance: Licensor may audit (using its own employees and those of an independent auditing firm that is subject to appropriate confidentiality obligations) the use of the Licensed Technology and Documentation to verify the Licensee’s compliance with this Agreement. The Licensee agrees to give Licensor (or the auditing firm) reasonable access to the facilities and records for purposes of conducting these audits. The licensor will give notice at least five days in advance before conducting an audit. Audits will be conducted during normal business hours and no more than once per year unless Licensor has a good-faith basis for believing that more frequent audits are warranted. Licensor will bear all the costs it incurs (including the fees and expenses of the auditing firm, if any) in conducting an audit, unless the audit reveals that a failure to comply with this agreement in any material way, in which case the Licensee agrees to reimburse Licensor for these costs.
9.2: LIMITATION OF LIABILITY:
(1) LICENSOR’S TOTAL, CUMULATIVE LIABILITY TO THE LICENSEE IS LIMITED TO ONE HUNDRED PERCENT (100%) OF THE AMOUNT OF LICENSE FEES PAID FOR THE RELEVANT LICENSED TECHNOLOGY (REGARDLESS OF THE NATURE OF THE LIABILITY OR THE NATURE OR NUMBER OF CLAIMS GIVING RISE TO THE LIABILITY). LICENSOR WILL NOT, UNDER ANY CIRCUMSTANCES OR ANY THEORY OF LIABILITY, BE LIABLE TO THE LICENSEE FOR ANY LOST PROFITS, LOSS OF DATA, GOODWILL, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES ARISING FROM THIS AGREEMENT OR THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF IT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE A FUNDAMENTAL PART OF THIS AGREEMENT AND ARE INTENDED TO APPLY EVEN IF AN EXCLUSIVE REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. (2) IN NO EVENT SHALL THE ENTIRE LIABILITY OF SAFECORE ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE AMOUNT OF LICENSE FEES RECEIVED BY SAFECORE FROM LICENSEE. (3) LICENSOR BEARS NO LIABILTY IF THE LICENSEE, OR ANYONE ELSE OTHER THAN LICENSOR, MODIFIES OR ATTEMPTS TO MODIFY THE LICENSED TECHNOLOGY.
9.3 Governing Law; Jurisdiction: This Agreement is governed by the laws of Spain, without regard to conflicts of laws principles. The courts located in Sevilla, Spain have exclusive jurisdiction over any disputes arising from or relating to this agreement, and each party consents to such jurisdiction and venue.
9.4 Notices: Any notice, approval, consent, or other communication intended to have legal effect under this Agreement must be given to the other party in writing, must be sent by first-class, registered, or overnight mail or private overnight courier (to the address for the other party stated on the cover page unless the other party has given notice of a new address), and will be deemed given upon receipt or when delivery is refused.
9.5 Waivers: Either party’s failure to enforce any provision of this Agreement will not be deemed a waiver of the future enforcement of that provision or enforcement of any other provision. In order to be binding, a waiver must be in writing and signed by the party giving the waiver.
9.6 Independent Contractors: The parties are independent contractors. Neither party is the agent or partner of the other party or has any power to act on behalf of the other party.
9.7 Severability: If any provision is found to be invalid or unenforceable as written, the remaining provisions will remain in full force and effect and the invalid or unenforceable provision is to be construed (and, if necessary, modified) so that it is valid and enforceable to the greatest extent possible.
9.8 Attorneys’ Fees: The prevailing party in any action to enforce this agreement will be entitled to recover costs and expenses including reasonable attorneys’ fees.
9.9 Remedies: Except where this Agreement expressly provides exclusive remedies, all rights, and remedies of either party (including termination rights) are cumulative. The Licensee agrees that monetary damages alone would not be an adequate remedy, and therefore Licensor will be entitled to injunctive relief if the Licensee materially breaches the license restrictions or confidentiality provisions in this Agreement.
9.10 Force Majeure: Each party will be excused from performance or delay of its obligations, except payment obligations, to the extent that performance is rendered impossible including but not limited to earthquake, fire, flood, governmental action, labor disruptions, supplier failures, act of war, riots, explosions, epidemic diseases, or any other act of God, force of nature, event, or circumstance beyond that party’s reasonable control.
The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the parties’ respective obligations shall resume. In the event the interruption of the excused party’s obligations continues for a period in excess of thirty calendar days, either party shall have the right to terminate the applicable contract(s) of sale, without liability, upon thirty calendar days prior written notice to the other party.
9.11 Construction: Section headings are for convenience only. The word “including” (and variations thereof) is not intended to be limiting. No rule of strict construction is to be used when interpreting this Agreement.
9.12 Counterparts: This Agreement may be signed in multiple counterparts, each of which will be deemed an original and which together will constitute one instrument.
9.13 Logos and Marks: The license grants in this Section 9.13 do not apply with respect to evaluation agreements of Licensed Technology. Subject to the entering into a commercial agreement with Licensor with respect to the Licensed Technology, the Licensee hereby grants Licensor a royalty-free and fully paid up, worldwide, right and license to display logos and trademarks on Licensor’s website to identify the Licensee as a customer, subject to adherence to reasonable usage guidelines that the Licensee may provide. Subject to the Licensee entering into a commercial agreement with Licensor with respect to the Licensed Technology, Licensee hereby is granted a royalty-free and fully paid up, worldwide, right and license to display the Licensor’s logos and trademarks, solely in connection with the use of the Licensed Technology in Licensed Products, and solely in conformance with such trademark usage guidelines as provided. The Licensee will allow Licensor to review, in advance, samples of such licensed use of logos and trademarks.
9.14 Amendments: This Agreement may be amended only by means of a written instrument signed by authorized representatives of both parties that specifically refers to this Section.
9.15 Non-Solicitation: During the term of this Agreement, the Licensee will not solicit any of Licensor’s employees or contractors who, in the previous twelve (12) calendar months, directly provided services to the Licensee hereunder, whether as Support Services or otherwise, to terminate his/her employment or contractor relationship with Licensor. This obligation does not prohibit the placement of general advertisements for employment not particularly targeted at an individual described in the preceding sentence.