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IMPORTANT INFORMATION – READ CAREFULLY
UNLESS YOU (THE “CUSTOMER”) HAVE OBTAINED PERMISSION TO USE THE LICENSED PRODUCT UNDER A SEPARATE, DULY SIGNED LICENSE AGREEMENT OR AN EVALUATION LICENSE WITH SYNOPSYS OR AN AUTHORIZED DISTRIBUTOR, THE ACCOMPANYING LICENSED PRODUCT IS PROVIDED UNDER THE FOLLOWING TERMS AND CONDITIONS AND ANY SUPPLEMENTAL TERMS REFERENCED BELOW AND YOUR RIGHT TO USE THE LICENSED PRODUCT IS CONDITIONED UPON YOUR ACCEPTANCE OF THIS AGREEMENT (THE “EULM”).
DEPENDING ON WHICH COUNTRY YOU TRANSACT BUSINESS WITH SYNOPSYS FROM, OTHER VERSIONS OF THIS EULM MAY BE APPLICABLE. FOR PRODUCTS USED OR SERVICES PROVIDED IN A COUNTRY IN THE AMERICAS OR AFRICA, THE MOST CURRENT VERSION IDENTIFIED FOR “AMERICAS_AFRICA” SHALL APPLY. FOR PRODUCTS USED OR SERVICES PROVIDED IN TAIWAN, THE MOST CURRENT VERSION IDENTIFIED FOR “TAIWAN” SHALL APPLY. FOR PRODUCTS USED OR SERVICES PROVIDED IN HUNGARY, AUSTRALIA, BELARUS, BULGARIA, ISRAEL, POLAND, THE REPUBLIC OF KOREA, ROMANIA, RUSSIA, UKRAINE OR VIETNAM, THE MOST CURRENT VERSION IDENTIFIED FOR “GLOBAL KFT” SHALL APPLY. FOR PRODUCTS USED OR SERVICES PROVIDED IN JAPAN, THE MOST CURRENT VERSION IDENTIFIED FOR “JAPAN” SHALL APPLY. FOR PRODUCTS USED OR SERVICES PROVIDED IN ANY COUNTRY OTHER THAN THOSE IDENTIFIED ABOVE, THE MOST CURRENT VERSION IDENTIFIED FOR “GLOBAL SIL” SHALL APPLY. PLEASE REFER TO SECTION 8.14 BELOW FOR MORE INFORMATION.
IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS AND YOU DO NOT HAVE A SEPARATE LICENSE AGREEMENT AS REFERENCED ABOVE, YOU MAY NOT USE OR COPY THE LICENSED PRODUCT AND YOU MUST DELETE ANY COPIES OF IT FROM YOUR SYSTEMS.
1. SCOPE AND KEY TERMS. The Licensed Product is the proprietary information of Synopsys or its suppliers who retain exclusive title to their intellectual property rights in the Licensed Product. Customer’s rights to the Licensed Product are limited to those expressly granted below and Synopsys reserves all rights not expressly granted in this Agreement.
1.1 Purchasing Agreements. The terms and conditions set forth in this End User Licensed Product License and Maintenance Agreement and the Purchasing Agreement(s) accepted by both Customer and Synopsys contain all terms and conditions applicable to Customer’s use of the Licensed Product (collectively, the “Agreement”). A “Purchasing Agreement” is a document that references this Agreement and identifies the specific Licensed Product and rights being licensed hereunder, including the License Type, quantity, license term, territory, Code Base or Team Name, and the fees and payment terms for the Licensed Product licenses (the “license transaction”). An Affiliate of Customer may purchase licenses to Licensed Product by executing a Purchasing Agreement referencing this Agreement provided that this Agreement governs all such licenses and such Affiliate complies with all Customer obligations referenced in this Agreement and the Purchasing Agreement. Customer agrees that it shall be responsible for the acts and omissions of its Affiliates with respect to Licensed Product licensed under an applicable Purchasing Agreement. Customer must refer to a copy of the applicable Purchasing Agreement to determine these conditions of the Agreement. If Customer does not receive any other document executed by Synopsys referencing the license transaction, a Synopsys invoice referencing this Agreement, issued in response to a correct Customer purchase order, shall be Synopsys’ acceptance of the license transaction. Additionally, the license term and/or maintenance and support term for the specific Licensed Product identified in a Purchasing Agreement may be renewed by issuance of a Synopsys invoice referencing this Agreement and the applicable Purchasing Agreement in response to a correct Customer purchase order for such renewal. Customer agrees that Customer purchases under this Agreement and any Purchasing Agreement incorporated herein by reference are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Synopsys regarding future functionality or features.
1.2 “Affiliate” of a party to this Agreement means another person or entity that, directly or indirectly, controls, is controlled by or is under common control with such party. For the
purposes of this definition, “control” means owning a beneficial interest (either directly or indirectly) in more than 50% of the outstanding shares or securities or other ownership interest entitled to vote for the election of directors or similar managing authority. An entity shall be deemed to be an Affiliate under this Agreement for only so long as such requisite conditions are maintained.
1.3 “Authorized Users” means a party’s, and its wholly-owned subsidiaries’ or Affiliate’s employees or authorized contractors: (a) whose duties require access to or use of the Licensed Product or Confidential Information for the benefit of that party; and (b) whose legal obligations to protect confidential and proprietary information require protection of the Licensed Product and Confidential Information to at least the same extent as set out in this Agreement. For clarity, Customer shall not appoint any third party as an Authorized User that licensed all or any portions of the Code Base identified in an applicable Purchasing Agreement to Customer.
1.4 “Code Base” means those portions of Customer’s software identified in an applicable Purchasing Agreement by reference to the name of the product, project or package and a number of lines of code, if applicable.
1.5 “Documentation”means the user documentation, in written, electronic or other format, which describes the Licensed Product and its operation and which Synopsys makes generally available to its licensed customers for use with the Licensed Product.
1.7 “Licensed Product“ means the specific products provided by Synopsys and listed in a Purchasing Agreement and (a) all related Documentation, and (b) all updates, modifications and maintenance services provided to Customer.
1.8 “Team Name” means the named development team that is licensed to use and operate the Licensed Product pursuant to a Team License granted in an applicable Purchasing Agreement.
2. 1 License Grant and Applicable Fees and Delivery. Subject to Customer’s compliance with the terms and conditions of this Agreement, Synopsys grants Customer a nonexclusive, non-transferable license, solely during the license term and in the territory set out in the applicable Purchasing Agreement, to (a) use and operate the Licensed Product to the extent permitted by Customer’s payment of applicable fees for the License Type purchased, solely for the purpose of developing, analyzing, building or testing the Code Base identified in such Purchasing Agreement, and (b) copy the Licensed Product as reasonably necessary to exercise the license rights granted in subsection (a), including making a reasonable number of copies for backup and archival purposes. All applicable fees are owed upon the effective date of the applicable Purchasing Agreement, are non-refundable upon such date, and are payable in accordance with the payment schedule set out in the applicable Purchasing Agreement. Fees payable are net amounts, without deduction for taxes or duties. Customer will pay taxes and duties (including but not limited to sales, use and withholding taxes) associated with its purchases under this Purchasing Agreement, except for Synopsys’ net income taxes. Where practical, Synopsys will deliver Licensed Product electronically and delivery will be deemed to occur upon the Licensed Product being available for electronic download. Delivery of any tangible media will be made F.O.B. point of shipment.
2. 2 Conditions. The rights granted to Customer above are conditional upon Customer’s compliance with the following obligations:
a. Customer will not copy Synopsys’ Licensed Products or Documentation, in whole or in part, except as expressly authorized in this Agreement.
b. Customer will not transfer, assign, lease, lend or rent Synopsys’ Licensed Products or Documentation, use them to provide service bureau, time-sharing or other services, or otherwise provide or make the functionality thereof available to third parties except as expressly authorized in this Agreement.
c. Customer will not disassemble, decompile, reverse engineer, modify or create derivative works of Synopsys Licensed Products or Documentation nor permit any third party to do so, except to the extent such restrictions are prohibited by applicable mandatory local law.
d. Customer will not allow access or use of the Licensed Product by, and will not display the Licensed Product’s user interfaces to anyone other than the Authorized Users without Synopsys’s prior express written consent
e. Customer will not disclose to any third party any comparison of the results of operation of Synopsys’ Licensed Products with other products.
f. Customer will not delete or in any manner alter the copyright, trademark or other proprietary rights notices appearing on the Licensed Product as delivered by Synopsys. Customer will reproduce such notices on all copies Customer is authorized to make of the Licensed Product.
g. Customer’s use of the Licensed Product is time-limited to the licensed term set out in the applicable Purchasing Agreement, and such use and access may be monitored and regulated through a license management tool (a “License Manager”). The License Manager will report such data (collectively, “Use and Compliance Data”) to Synopsys. Customer will not install or use the Licensed Product in a manner that circumvents or interferes with the operation of the License Manager or any other technological measure that controls access to the Licensed Product. Some configurations may require the License Manager to be installed only on designated servers. For those configurations, Synopsys will support two changes to the designated servers during any twelve month period upon prior written notice.
2.3. Offsite Contractors. Customer may allow Authorized Users that are offsite contractors to access and use the Licensed Product solely for Customer’s benefit in accordance with this Agreement provided that: (a) Customer is responsible for the acts and omissions of its offsite contractors with respect to Licensed Product licensed under this Agreement; (b) Customer ensures that the Licensed Product is completely and irretrievably uninstalled from any offsite contractor’s equipment and premises (except for those modules necessary to view results and other data generated from using the Licensed Product) immediately upon completion of the offsite contractor’s services requiring use of the Licensed Product; and (c) Customer has an agreement in place with the offsite contractor requiring that the offsite contractor protect Synopsys’ Licensed Product, Confidential Information and intellectual property at least to the same extent as set forth in this Agreement. Customer acknowledges that Synopsys has no warranty or other obligations to Customer’s offsite contractors.
2.4. Special Terms for Third Party Software. The Licensed Product may contain open source or community source software (“Open Source Software”) provided under separate license terms (the “Open Source License Terms”). The applicable Open Source License Terms are identified in a directory named “Licenses” provided with the delivery of the Licensed Product. Customer’s use of the Open Source Software in conjunction with the Licensed Product in a manner consistent with the terms of this Agreement is permitted, however, Customer may have broader rights under the applicable Open Source License Terms and nothing in this Agreement is intended to impose further restrictions on Customer’s use of the Open Source Software.
2.5. Feedback and Analytics. Customer may choose to, but is not required to, provide suggestions, data, feedback and other information to Synopsys, its subcontractors or authorized distributors regarding possible improvements in the operation, functionality or use of Synopsys’ Licensed Products (“Feedback”). Customer hereby grants to Synopsys, its subcontractors and authorized distributors, a non-exclusive, perpetual, irrevocable, royalty-free and fully paid up license to use, copy, display, modify, create derivative works of and distribute any Feedback, and to make, have made, use, lease, sell, offer for sale, import, export or otherwise transfer any Synopsys product offering covered by any intellectual property rights in such Feedback solely for the purpose of (i) improving the operation, functionality or use of its existing and future product offerings and commercializing such offerings; and (ii) publishing aggregated statistics about software quality, provided that no data in any such publication can be used to specifically identify Customer or Customer’s software code.
2.6. Keys and Access. Synopsys agrees to provide Customer those authorization keys and/or passwords which are necessary to permit Customer to gain access to Licensed Product made available to Customer for the Licensed Product which has been properly licensed to Customer in accordance with this Agreement. Notwithstanding anything to the contrary in this Agreement, Customer hereby acknowledges that Customer shall have no right or license to any software made available to Customer for any software which has not been properly licensed to Customer pursuant to this Agreement, that any such software has been included therein solely as a matter of convenience, and that Customer further agrees not to attempt to gain access to, or permit any third party to attempt to gain access to, such software.
3.1. Confidential Information. “Confidential Information” means: (a) each party’s software products, in byte code or source code form; (b) any authorization keys and passwords delivered in order to operate such products; (c) Documentation, product road maps and development plans, and product pricing information; (d) any business, technical or training information of a party that, if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the other party within thirty (30) days of such disclosure; and (e) Customer specific terms and pricing set forth in any quotation, Purchasing Agreement or this Agreement.
3.2. Exclusions. Confidential Information does not include information that: (a) is or becomes generally known or available to the public through no act or omission of the party receiving Confidential Information (“Receiving Party”); (b) is rightfully known by the Receiving Party prior to receiving such information from the other party (“Disclosing Party”) and without restriction as to use or disclosure; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information and without breach of this Agreement; or (d) is rightfully received by the Receiving Party from a third party without restriction on use or disclosure. The existence of this Agreement and the nature of the business relationship between the parties are not considered Confidential Information.
3.3. Use and Disclosure Restrictions. Receiving Party will not use the Disclosing Party’s Confidential Information except as necessary to exercise the rights granted under this Agreement or to evaluate opportunities to license additional Licensed Product pursuant to this Agreement, and will not disclose such Confidential Information to any person or entity except to its Authorized Users. Without limiting the generality of the foregoing, Customer agrees that it will not post the Licensed Product, the Documentation, or any screenshots of the Licensed Product or results generated by the Licensed Product, on any network that is accessible by anyone other than the Authorized Users. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors that need to know in order to provide business advice to such party. In addition, each party may disclose the terms and conditions of this Agreement: (i) as required under applicable securities regulations; and (ii) on a confidential basis to present or future providers of venture capital and potential private investors in or acquirers of such party.
3.4. Right of Equitable Relief. The parties acknowledge that violations of the covenants and obligations of this Agreement may cause the non-breaching party irreparable injury for which an adequate remedy at law may not be available. Therefore, the non-breaching party shall be entitled to seek all remedies that may be available under equity, including immediate injunctive relief, in addition to whatever remedies may be available at law.
4.1. Limited Software Warranty. Subject to the remainder of this Section 4, for a period of forty five (45) days from earlier of the date that the Licensed Product is first made available to Customer for download or Customer’s first receipt of the Licensed Product pursuant to an Purchasing Agreement, Synopsys represents and warrants that, (a) the media on which the Licensed Product is delivered will be free of defects in material and workmanship, (b) the Licensed Product will substantially conform to the functional specifications set forth in the applicable Documentation, and (c) it has used commercially available virus-detection software to scan the Licensed Product, and it has not knowingly introduced into the Licensed Product any virus, Trojan horse, trap door, or other code that is intended to cause harm to the Code Base or other systems.
4.2. Sole Remedy. If, during the warranty period set forth in Section 4.1, Synopsys receives written notice from Customer of non-conformity of the Licensed Product with the warranty set forth in Section 4.1, Synopsys will, as Customer’s sole and exclusive remedy and Synopsys’ entire liability for such non-conformity: (a) deliver a correction or workaround for the non-conformity; or (b) if Synopsys is unable to deliver such a correction or workaround, provide written notice to Customer and, upon Customer’s return or confirmed destruction of all copies of the non-conforming Licensed Product to Synopsys, refund the license fees paid by Customer for such non-conforming Licensed Product. THE FOREGOING STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR WARRANTY CLAIMS RELATED TO THE LICENSED PRODUCT.
4.3. Disclaimer. Synopsys does not warrant that the Licensed Product will meet Customer’s requirements, that the Licensed Product will operate in combinations with equipment, devices, Licensed Product or systems provided by persons other than Synopsys, that the operation of the Licensed Product will be error-free or uninterrupted, or that the Licensed Product will discover all errors and vulnerabilities that may reside in the Code Base. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SYNOPSYS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY OR COMPLETENESS OF RESULTS, CONFORMANCE WITH DESCRIPTION, AND NON-INFRINGEMENT. SYNOPSYS AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
5.1. Infringement Indemnity. Synopsys will defend or settle any action brought against Customer by paying all costs, damages and reasonable attorneys’ fees that are finally awarded against Customer to the extent those amounts are based upon a third party claim that the Licensed Product, as provided by Synopsys to Customer under this Agreement and used in accordance with this Agreement, directly infringes any U.S. patent, or copyright or misappropriates any U.S. trade secret. However, Synopsys’ obligations under this section are subject to the following conditions: (a) Customer must promptly notify Synopsys in writing of the action; (b) Customer grants Synopsys sole control of the defense and settlement of the action; and (c) Customer must provide Synopsys, at Synopsys’ expense, with all assistance, information and authority reasonably requested for the defense and settlement of the action. Synopsys will not be responsible for any compromise made or expense incurred without its consent. If use of any of the Licensed Product is, or in Synopsys’ reasonable opinion is likely to be, the subject of an action specified in this Section 5.1, Synopsys may, at its sole option and at no additional charge: (i) procure for Customer the right to continue using such Licensed Product; (ii) replace or modify such Licensed Product so that it is non-infringing and substantially equivalent in function to the original Licensed Product; or (iii) if options (i) and (ii) above are not accomplished despite Synopsys’ reasonable efforts, terminate Customer’s rights and Synopsys’ obligations hereunder with respect to such Licensed Product and refund the unamortized portion of the license fees paid for such Licensed Product, based upon a straight-line depreciation over the term of the license commencing as of the date Customer received such Licensed Product.
5.2. Exclusions. Notwithstanding the terms of Section 5.1, Synopsys will have no liability for any infringement or misappropriation action or claim of any kind to the extent that it results from: (a) modifications to the Licensed Product made by a party other than Synopsys, if the infringement or misappropriation would not have occurred but for such modifications; (b) the combination, operation or use of the Licensed Product with equipment, devices, software, systems or data not supplied by Synopsys, if the infringement or misappropriation would not have occurred but for such combination, operation or use; (c) Customer’s failure to use updated or modified Licensed Product provided by Synopsys to avoid infringement or misappropriation; (d) Synopsys’ compliance with any designs or specifications provided by Customer; (e) Customer’s use of the Licensed Product other than as authorized by this Agreement.
5.3. Sole Remedy. THE PROVISIONS OF THIS SECTION 5 SET FORTH SYNOPSYS’ SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND. EXCEPT AS SET FORTH ABOVE, SYNOPSYS AND ITS SUPPLIERS DISCLAIM ALL IMPLIED OBLIGATIONS WITH RESPECT TO INTELLECTUAL PROPERTY INDEMNIFICATION.
6. LIMITATION OF LIABILITY.
6.1 Exclusion of Damages. Notwithstanding anything to the contrary, this Agreement does not limit liability due to death or personal injury caused by gross negligence, or liability due to fraudulent misrepresentations or willful misconduct, or liability arising from breaches of confidentiality obligations or license grants or conditions hereunder. SUBJECT TO THE FOREGOING SENTENCE, IN NO EVENT WILL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS, REVENUE, GOODWILL, ANTICIPATED SAVINGS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), FAILURE OF A REMEDY TO ACCOMPLISH ITS PURPOSE, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer acknowledges that Synopsys would not be able to provide the Licensed Product without the limitations set forth in Section 6 herein. Customer may have other rights under applicable mandatory local laws. This Agreement does not change Customer’s rights under applicable mandatory local laws if such laws do not permit it to do so.
6.2 Cap on Liability. IN NO EVENT WILL SYNOPSYS, ITS AFFILIATES OR ITS SUBSIDIAIRIES, OR ITS SUPPLIERS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT, OR RELATING TO ITS SUBJECT MATTER, EXCEED WITH RESPECT TO LICENSED PRODUCT, THE AMOUNT PAID BY CUSTOMER FOR THE LICENSED PRODUCT GIVING RISE TO THE CLAIM, AND WITH RESPECT TO SERVICES, THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE CLAIM.
7. EXPIRATION AND TERMINATION.
7.1. Termination for Breach. Either party will have the right to terminate this Agreement or any Purchasing Agreement if the other party breaches any material term of the Agreement or Purchasing Agreement, as the case may be, and if such breach is capable of cure, the breaching party fails to cure such breach within thirty (30) days after receiving written notice thereof. Either party will have the right to terminate this Agreement if the other becomes insolvent or makes an assignment for the benefit of creditors, or a trustee or receiver is appointed for such other party or for a substantial part of its assets, or bankruptcy, reorganization or insolvency proceedings shall be instituted by or against such other party. Termination of this Agreement under this section terminates all Purchasing Agreements and Licensed Product licenses granted hereunder.
7.2. Effect of Termination or Expiration. U. Upon termination or expiration of this Agreement or a Purchasing Agreement, all Licensed Product licenses and rights to use Confidential Information that are granted thereunder shall terminate. Upon termination of this Agreement or expiration of the license term in any Purchasing Agreement, Customer will: (a) promptly return to Synopsys or destroy the applicable Licensed Product and Confidential Information and all copies and portions thereof, in all forms and types of media; and (b) promptly pay all fees owing up to the date of termination.
- 7.3. Survival. Sections 1, 2.2, 2.4, 2.5, 3, 4.3, 5.3, 6, 7.2, 7.3 and 8, will survive the termination or expiration of this Agreement or of any Purchasing Agreement.
8.1. Promotion. Unless otherwise provided in the Purchasing Agreement, Customer agrees that Synopsys may use Customer’s name and logo (in a form approved by Customer) to identify Customer as a customer on Synopsys’ website or in marketing or publicity materials or in any filings made in connection with state or federal securities laws. Additionally, upon execution of this Agreement, the parties will use commercially reasonable efforts to issue mutually agreed upon joint press releases or other public communications announcing Customer’s entry into this Agreement.
8.2. “Maintenance Services”
means any standard Synopsys maintenance and support services (excluding onsite support services referenced in Section 8.3 below) related to the Licensed Product licensed hereunder pursuant to a Purchasing Agreement, where such services shall be governed by the Synopsys Maintenance Services terms. In the event that the Synopsys Maintenance Services Terms are not included herein (as an addendum hereto or otherwise), the terms for Synopsys Maintenance Services are hereby incorporated herein by references, and are available at http://www.coverity.com/end-user-licenses/maintenance-service-terms/
, or as otherwise indicated in the Purchasing Agreement.
If Synopsys provides any onsite support services (excluding Maintenance Services referenced in Section 8.2 above) to Customer (the “Services”), the Services shall be governed by the Synopsys Onsite Support Services Terms attached to this Agreement. In the event that the Synopsys Onsite Support Services Terms are not included herein (as an addendum hereto or otherwise), the terms for Onsite Support Services, are hereby incorporated herein by reference, and are available at www.coverity.com/end-user-licenses/onsite-support-services-terms/
, or as otherwise indicated in the Purchasing Agreement.
8.4. Software Development Kit.
Synopsys provides a software development kit (“SDK”) to Customer with the Licensed Product. Use of the SDK shall be governed by the Synopsys SDK terms included in this Agreement. In the event that the Synopsys SDK terms are not included herein (as an addendum hereto or otherwise), the SDK terms are available at www.coverity.com/software-development-kit/
8.5. Export Control. Customer agrees that the Licensed Product, Services and Technical Support subject to this Agreement are subject to the export control laws and regulations of the United States, including but not limited to the Export Administration Regulations (“EAR”), and sanctions regulations of the U.S. Department of Treasury, Office of Foreign Asset Controls and that Customer will comply with these laws and regulations. Without limiting the foregoing, if any of the Licensed Products, Services and Technical Support governed by this Agreement, or the direct product of any such Licensed Product, Services and Technical Support (each, a “Controlled Product”), is subject to the national security controls as identified on the Commerce Control List (the “Controlled Products”), Customer will not, without a U.S. Bureau of Industry and Security license or license exception, export, re-export, or transfer a Controlled Product, either directly or indirectly, to any national of any country identified in Country Groups D:1 or E:1 as defined in the EARs. In addition, Licensed Product, Services and Technical Support subject to this Agreement may not be exported, re-exported, or transferred to (a) any person or entity listed on the “Entity List”, “Denied Persons List” or the list of “Specifically Designated Nationals and Blocked Persons” as such lists are maintained by the U.S. Government, or (b) an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (i) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (ii) the design, development, production, or use of missiles or support of missiles projects; and (iii) the design, development, production, or use of chemical or biological weapons. Customer will, at Synopsys’ request, demonstrate compliance with all such applicable export laws, restrictions, and regulations. Customer further agrees that it will not do any of the foregoing in breach of any restriction, law or regulation of the European Union or an individual Member state of the European Union that imposes on an exporter a burden equivalent to or greater than that imposed by the U.S. Bureau of Industry and Security.
8.6. Assignment. Customer may not assign this Agreement, or any licenses granted hereunder, in whole or in part, by operation of law or otherwise. Any attempt to so assign without such consent will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
8.7. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the Republic of Ireland excluding that body of laws known as conflicts of law. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the courts located in the Republic of Ireland and the parties irrevocably consent to the personal jurisdiction and venue therein.
8.8. Verification and Audit. . In addition to the Use and Compliance Data collected by the License Manager, Customer will monitor and track access to and use of the Licensed Product. At Synopsys’ written request, Customer will furnish Synopsys with (a) a certification signed by an authorized representative of Customer providing user or access information that identifies whether the Licensed Product is being used in accordance with the terms of this Agreement, and (b) log files from any License Manager that regulates access to the Licensed Product. Upon at least thirty (30) days prior written notice, Synopsys may engage, at its expense, an independent auditor to audit Customer’s use of the Licensed Product to ensure that Customer is in compliance with the terms of this Agreement and the applicable Purchasing Agreements. Any such audit will be conducted during regular business hours at Customer’s facilities and will not unreasonably interfere with Customer’s business activities. Customer will provide the auditor with access to the relevant records and facilities. If an audit reveals that Customer has underpaid fees to Synopsys during the period audited, then Synopsys will invoice Customer, and Customer will promptly pay Synopsys for such underpaid fees based on Synopsys’s price list in effect at the time the audit is completed. If the underpaid fees exceed five percent (5%) of the license fees paid by Customer for the Licensed Product, then Customer will also pay Synopsys’ costs of conducting the audit.
8.9. Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
8.10. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, natural disasters or governmental action.
8.11. Notices. All notices required or permitted under this Agreement will be in writing. Notices will be effective upon delivery if delivered in person and upon mailing if delivered by courier service, overnight delivery services or by a form of certified or express mail. Notices affecting this Agreement as a whole will be sent to the address set forth above, if any, or to such other address of a party as such party may identify in writing; notices related to a particular transaction will be sent to the primary corporate addresses set forth in the Purchasing Agreement or to such other address as Customer or Synopsys may notify the other party in writing.
8.12. Entire Agreement; Modification; Interpretation. This Agreement, including any Addendums hereto and any Statements of Work attached thereto, and all accepted Purchasing Agreements referencing this Agreement, constitute the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Customer agrees that additional or different terms on Customer’s purchase order shall not apply. Failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of this Agreement will be effective only if in writing and signed by Customer and an authorized representative of Synopsys. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. The word “including” when used in this Agreement will mean including without limitation of the generality of any description, definition, term or phrase preceding that word.
8.13. U.S. Government Restricted Rights. The Licensed Product is “Commercial Computer Software” as defined under FAR 252.227-7014. For Customers subject to the Defense Federal Acquisition Resolutions (DFAR), the Commercial Computer Software and associated documentation are sold pursuant to Synopsys’ standard commercial license pursuant to DFARS 227.7202-1.Commercial Products. For all other government customers, use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in subparagraph (b)(2) of Commercial Computer Software License 48 CFR 52.227-19, as applicable.
8.14. Synopsys Entities. Synopsys, Inc. and its wholly-owned subsidiaries, including, but not limited to, Synopsys International Limited, Synopsys International Limited Taiwan Branch, Synopsys Global Kft and Nihon Synopsys, G.K., have agreed to their respective rights and obligations regarding the distribution of the Licensed Products and the performance of obligations related to the Licensed Products. You acknowledge that: (a) Synopsys Inc. or any directly or indirectly wholly-owned subsidiary or branch of Synopsys, Inc. may treat a purchase order addressed to that entity, representative office or branch as having been addressed to the appropriate entity or entities or branch with distribution rights for the geographic region in which the Licensed Products will be used; and (b) delivery will be completed by the Synopsys entity or branch with distribution rights for the geographic region in which the Licensed Products will be used or service will be provided. For products used or services provided in a country in the Americas or Africa, the distributing Synopsys entity is Synopsys, Inc., based in California, USA. For products used or services provided in Taiwan, the distributing Synopsys entity is Synopsys International Limited Taiwan Branch, based in Taiwan. For products used or services provided in Hungary, Australia, Belarus, Bulgaria, Israel, Poland, the Republic of Korea, Romania, Russia, Ukraine or Vietnam, the distributing Synopsys entity is Synopsys Global Kft, based in Hungary. For products used or services provided in Japan, the distributing Synopsys entity is Nihon Synopsys G. K., based in Japan. For products used or services provided in any country other than those identified above, the distributing Synopsys entity is Synopsys International Limited, based in Ireland.
8.15. Counterparts and Execution. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. An originally executed version of this Agreement or any Exhibit, attachment and subsequent Purchasing Agreement, that is delivered by one party to the other party, as evidence of signature, by facsimile, or by electronic mail after having been scanned as an image file (including, Adobe PDF, TIF, etc.) shall, for all purposes hereof, be deemed an original signature and neither party shall have the right to object to the manner in which the Agreement was executed as a defense to the enforcement of the Agreement.
END OF TERMS