Synopsys Terms and Conditions for ZeBu and ProtoLink Hardware (“Hardware”)
These Terms and Conditions (“Agreement’) are a legal agreement between you (“Customer”) and the Synopsys entity identified in the applicable Purchasing Agreement (as defined below). BY ACCEPTING DELIVERY OF THE HARDWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU SHOULD NOT ACCEPT DELIVERY OF THE HARDWARE. BY DOING SO YOU FOREGO ANY IMPLIED OR STATED RIGHTS TO ACCEPT OR USE THE HARDWARE.
1. Limited Warranty. Synopsys warrants for the Warranty Period (defined below) that the Hardware, when properly installed, will substantially conform to the functional specifications set forth in the applicable documentation (“Limited Warranty”). If, during the Warranty Period, the Hardware is non-conforming, Synopsys will use commercially reasonable efforts to correct any substantial non-conformity. The foregoing Limited Warranty will only apply if Customer has notified Synopsys in writing of the alleged non-conformity within the Warranty Period and has provided Synopsys with sufficient documentation and test-case(s) with respect to the alleged non-conformity. If the non-conformance of any Hardware is found by Synopsys to have been caused by any of the occurrences set forth in the section entitled Warranty Exclusions below, then any related repairs and/or replacements will be billed to Customer at Synopsys’s then-current rates. This Limited Warranty is non-transferable and is made solely to and for the benefit of Customer. The Warranty Period for the ProtoLink Hardware is six (6) months from the delivery date, and the Warranty Period for the ZeBu Hardware is sixty (60) days from the delivery date. THIS section states Synopsys’s sole and exclusive liability and Customer’s sole and exclusive remedy with regard to any HARDWARE that fail to conform to the limited warranty. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, SYNOPSYS MAKES NO WARRANTIES, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, WITH RESPECT TO THE HARDWARE AND SYNOPSYS SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
2. Warranty Exclusions. The above Limited Warranty is contingent upon proper use of the Hardware as intended and does not apply to any Hardware that has been subjected to unusual physical or electrical stress, misuse, neglect, improper testing or storage, unauthorized repair, problems that arise from any use of the Hardware with other technology not approved by Synopsys, alterations or modifications not authorized or made by Synopsys, or the combination of the Hardware with any third-party system, device, or components not provided or approved by Synopsys. Hardware exhibiting any of the following conditions shall void the Limited Warranty: (i) Hardware serial number labels that are missing or exhibiting damage beyond that caused by normal wear and tear (examples include, but are not limited to, labels that are defaced such that the model number, serial number, part number, or manufacturing date is not readable); (ii) physical damage (examples include, but are not limited to, deep scratches inconsistent with normal wear and tear or missing or damaged connectors); (iii) components that have been added to or removed from the Hardware (except for jumpers and socketed devices); (iv) any indications that the Hardware has been exposed to liquid or other foreign substance where rust or corrosion is present; (v) installation of the Hardware that is not compliant with the documentation; (vi) overheated Hardware due to use in a room exceeding the normal operating temperature range indicated in the documentation; (vii) for returned Hardware, inadequate packaging or protective cushioning materials (e.g. Hardware shipped in styrofoam, peanuts, popcorn, or packaged without ESD protective bags); (viii) power failure or power surges; (ix) use of the Hardware for purposes other than those for which it was designed; (x) damage caused by a short-circuit in a target system or produced by Customer on an in-circuit emulation connector; (xi) modification of the Hardware configuration; or (xii) any minor malfunction of the Hardware that does not materially alter its functionalities or significantly impact its level of performance.
3. Use Restrictions. Customer acknowledges and agrees that it shall not, nor permit any third party to: (i) disassemble, reverse engineer or attempt to reconstruct, identify or discover any underlying ideas, concepts, composition, interconnection, schematics or designs of the Hardware by any means whatever, or disclose any of the foregoing; (ii) modify the configuration of the Hardware; (iii) install any accessories or upgrades to the ZeBu Hardware; (iv) use the Hardware for the benefit of anyone other than Customer; (v) disclose the results of any benchmarking of the Hardware (whether or not obtained with Synopsys's assistance); (vi) use the Hardware to develop or enhance any product that competes with a Synopsys product; or (vii) employ the Hardware in, or in the development of, life critical applications or in any other application where failure of the Hardware or any results from the use thereof can reasonably be expected to result in personal injury or death.
4. ProtoLink Hardware Module. For ProtoLink Hardware only, any separately installable software may generate a specific hardware module (“Boundary Module”) to be put on Customer’s FPGA to work with the Hardware. Use of the Boundary Module is governed by and subject to the end user software license agreement between Customer and Synopsys (the “Software License Agreement”). In addition, Synopsys hereby grants to Customer a personal, nontransferable, nonexclusive right and license to make available the Boundary Module to end users, in the final binary format that can be mapped to Customer’s FPGA directly, and solely for such end user’s internal use. An end user’s use of the Boundary Module must be subject to an agreement that contains terms that are at least as protective of Synopsys’s intellectual property rights as those contained in this Agreement and the Software License Agreement.
5. Evaluation. If Customer obtains Hardware for evaluation purposes, Customer may use the Hardware only for the evaluation period and only for the purpose of evaluating the Hardware and deciding whether to purchase or lease such Hardware. Unless Customer purchases or leases the Hardware prior to expiration of the evaluation period, Customer shall return, at its sole expense, all such Hardware to Synopsys in good condition and working order promptly upon expiration of the evaluation period. If Customer breaches any of the foregoing restrictions and obligations, Customer shall pay to Synopsys a fee equal to Synopsys’s then-current list price for the Hardware. Customer agrees that damages for such a breach would be difficult to assess, and such payment represents a reasonable assessment of the potential damage to Synopsys. Customer recognizes and agrees that this amount is a reasonable, liquidated amount and not a penalty. The Hardware subject to evaluation is provided “AS IS” and the warranty, indemnification and Maintenance and Support provisions of this Agreement do not apply to such Hardware.
6. Maintenance and Support. Beginning on the delivery date of the Hardware to Customer and subject to Customer’s payment of maintenance fees, Synopsys will provide to Customer the following maintenance services (“Maintenance”) during the period for which Maintenance is purchased: (i) between 8:30am and 5:30pm local time, Monday through Friday, excluding Synopsys’s holidays, telephone and email technical support and, for ZeBu Hardware only, assistance with installation and use; and (ii) repair or replacement of the Hardware if the Hardware becomes damaged under normal use (“Damaged Hardware”). Synopsys shall be under no obligation to replace or repair Damaged Hardware caused by: (A) accidents such as Hardware that is dropped or exposed to liquid; (B) failure to provide a suitable installation environment for the Hardware; (C) installation of the Hardware that is not compliant with the documentation; (D) overheating due to use of the Hardware in a room exceeding the normal operating temperature range indicated in the documentation; (E) power failure or power surges; (F) use of the Hardware for purposes other than those for which it was designed; (G) short-circuit in a target system or produced by Customer on an in-circuit emulation connector; (H) modification of the Hardware configuration; (I) improper packaging of Hardware returned to Synopsys; (J) any minor malfunction of the Hardware that does not materially alter its functionalities or significantly impact its level of performance.
7. Replacement Parts for ProtoLink Hardware. If Synopsys determines that a malfunctioning ProtoLink Hardware can be repaired with a self-service replacement part, Synopsys will provide Customer with the replacement part. Customer shall install the replacement part and, at Synopsys’s direction, either return the malfunctioning part to Synopsys (following Synopsys’s shipping instructions) or ready the malfunctioning part for retrieval by Synopsys. If Customer requests that Synopsys replace a self-service replacement part, then Customer will be charged an additional fee for the installation. All exchanged parts become Synopsys’s property. Any item that Customer fails to return to Synopsys will be charged to Customer at Synopsys’s then-current fee for such item.
8. Fees and Payment. The fees for the Hardware will be identified in the applicable Synopsys sales quotation or other agreement (“Purchasing Agreement”) describing (among other things) the Hardware and the pricing information. Customer shall pay the fees according to the payment terms set forth in the applicable Purchasing Agreement. If the applicable Purchasing Agreement does not contain specific payment terms for the fees in question, payment of those fees will be due within 30 days after the date of Synopsys’s invoice. If Customer does not pay an amount by the Purchasing Agreement due date, Synopsys will have the right to terminate this Agreement and/or the Purchasing Agreement and accelerate the due date of all remaining payments. In this event, Customer will owe the entire outstanding balance as soon as Customer receives written notice from Synopsys that payment is due. All payments made to Synopsys are non-refundable. Customer may not offset any amounts Customer believes Synopsys owes against any payments that Customer makes to Synopsys under this Agreement. Customer must make payments in U.S. dollars. If Customer does not pay an amount by the due date, Customer must also pay a late payment charge of 1.5% per month or the highest rate permitted by law, whichever is less. If Customer become the subject of any bankruptcy, dissolution, liquidation, or similar proceedings or make a general assignment for the benefit of Customer’s creditors, Synopsys may apply any payments Customer has previously made to Synopsys for products or services not yet delivered by Synopsys against any amounts Customer owes Synopsys at that time for products or services that have been delivered by Synopsys (under this Agreement or otherwise). Synopsys hereby reserves and Customer hereby grants to Synopsys a money security interest in the Hardware until Customer has paid the total amount invoiced by Synopsys for the Hardware. Customer agrees to execute any financing statements or other documents as Synopsys requests to protect Synopsys’s security interest in the Hardware. The fees are net of any taxes and Customer will be solely responsible for paying all taxes (including sales, use, consumption, withholding, and value-added taxes and similar taxes), other than Synopsys’s income taxes, that are imposed on or result from Customer’s purchase, license, or use of Synopsys products and services.
9. Delivery and Relocation. Customer assumes the full expense of transportation, insurance, and delivery of the Hardware to Customer's site. Unless otherwise provided in this Agreement, title to the Hardware and risk of loss will pass to Customer upon Synopsys’s delivery of the Hardware to the carrier. If indicated in the Synopsys Purchasing Agreement, Synopsys may, in its discretion, fulfill an order for Hardware or replacement parts with new or refurbished equipment. Customer may not permanently relocate the ZeBu Hardware outside of its original destination without obtaining prior written approval from Synopsys.
10. Leased Hardware. This Section 10 applies to Hardware that is leased by Customer as indicated in a Purchasing Agreement.
A. Lease Term: The lease period and Customer’s rental obligations shall be identified in the applicable Purchasing Agreement.
B. Title and Liens: The Hardware shall always remain Synopsys’s personal property. Customer shall have no right or interest in the Hardware, and shall hold the Hardware subject and subordinate to the rights of Synopsys. Customer agrees to execute UCC financing statements as and when requested by Synopsys and hereby appoints Synopsys as its attorney-in-fact to execute such financing statements. Synopsys may file a photocopy of any lease as a financing statement. All parts furnished in connection with a repair or maintenance shall immediately become components of the Hardware and the property of Synopsys. Customer will, at its expense, keep the Hardware free and clear from any liens or encumbrances of any kind (except any caused by Synopsys) and will indemnify and hold Synopsys harmless from and against any loss or expense caused by Customer's failure to do so. Customer shall give Synopsys immediate written notice of any attachment or judicial process affecting the Hardware or Synopsys's ownership thereof. If requested, Customer will label the Hardware as the property of Synopsys and shall allow, subject to Customer's reasonable security requirements, the inspection of the Hardware during regular business hours.
C. Insurance: Effective upon shipment of the Hardware to Customer and until the Hardware is returned to Synopsys, Customer shall provide at its expense (i) insurance against the loss, theft, destruction of or damage to the Hardware for the full replacement value, and (ii) insurance against liability and property damage to the Hardware. Customer shall provide a certificate of insurance that such coverage is in effect, before shipping by Synopsys, naming Synopsys as loss payee and/or additional insured, as may be required.
D. Risk of Loss: Customer shall bear the entire risk of loss, theft, destruction of or damage to any item of Hardware during the term of the lease. No loss or damage shall relieve Customer of the obligation to pay the fees as provided herein or any other obligation under this Agreement. In the event of loss or damage of the Hardware, Customer shall promptly notify Synopsys and shall, at Synopsys's option, repair or restore the Hardware in good condition at Customer’s cost, or pay Synopsys the present value of the Hardware at Synopsys’s then-current list price.
E. Remedies: Upon default by Customer and/or termination of this Agreement and/or the applicable Purchasing Agreement, or in the event Customer attempts to move, sell, transfer, encumber, or sublet without consent any item of Hardware, Synopsys may, at its option, take one or more of the following actions: (i) declare all current and future fees due under this Agreement and/or the Purchasing Agreement immediately due and payable, (ii) require Customer to immediately return all Hardware to Synopsys in accordance with Section F below, (iii) without breach of the peace, take immediate possession of and remove the Hardware, (iv) sell any or all of the Hardware at public or private sale or otherwise dispose of, hold, use or lease the Hardware to others, or (v) exercise any right or remedy which may be available to Synopsys under applicable law, including the right to recover damages for the breach of this Agreement and/or the Purchasing Agreement. In addition, Customer shall be liable for Synopsys’s reasonable attorneys' fees, other costs and expenses resulting from any default, or the exercise of Synopsys's remedies. Each remedy shall be cumulative and in addition to any other remedy otherwise available to Synopsys at law or in equity. No express or implied waiver of any default shall constitute a waiver of any of Synopsys's other rights.
F. Effect of Termination: Upon termination of this Agreement and/or the Purchasing Agreement, or expiration of the lease term, Customer shall return to Synopsys, at Customer’s expense, the Hardware leased by Customer. Return of the leased Hardware shall occur no later than five (5) days from the date of termination or expiration. Customer shall remain obligated to pay the lease fees on the Hardware until the Hardware is returned and received by Synopsys, and all outstanding fees shall be paid in full immediately upon termination.
11. Intellectual Property Right Infringement. Synopsys will, at its expense, defend or, at its option, settle any claim or action brought against Customer to the extent it is based on a third party claim that the Hardware infringes or violates any US patent, copyright, trade secret or trademark of any third party, and Synopsys will indemnify and hold Customer harmless from and against any damages, costs and fees awarded in such claim or action; provided that Customer provides Synopsys with (a) prompt written notification of the claim or action; (b) sole control and authority over the defense or settlement thereof (including all negotiations); and (c) at Synopsys’s expense, all available information, assistance and authority to settle and/or defend any such claim or action. Synopsys’s obligations under this section do not apply to the extent that (i) such claim or action would have been avoided but for modifications of the Hardware, or portions thereof, other than modifications made by Synopsys after delivery to Customer; (ii) such claim or action would have been avoided but for the combination or use of the Hardware, or portions thereof, with other technology, devices, or software not supplied by or expressly authorized by Synopsys; (iii) Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (iv) Customer’s use of the Hardware other than in accordance with this Agreement or the documentation provided by Synopsys. Customer will be liable for all damages, costs, expenses, settlements and attorneys’ fees related to any claim of infringement arising as a result of (i)-(iv) above. If the Hardware becomes or, in the reasonable opinion of Synopsys is likely to become, the subject of an infringement claim or action, Synopsys may, at Synopsys’s option and at no charge to Customer, (A) modify the Hardware to avoid the infringement; (B) replace the Hardware with a compatible, functionally equivalent, and non-infringing product, or (C) refund to Customer the amount paid for the Hardware, as depreciated on a straight-line 5-year basis calculated from Customer’s original date of purchase. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE AND SOLE LIABILITY AND OBLIGATIONS OF SYNOPSYS, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE HARDWARE AND DOCUMENTATION.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SYNOPSYS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE HARDWARE, EVEN IF SYNOPSYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SYNOPSYS BE LIABLE TO CUSTOMER FOR DAMAGES IN AN AMOUNT GREATER THAN THE FEES PAID FOR THE HARDWARE GIVING RISE TO THE LIABILITY. Some states/jurisdictions do not allow the limitation or exclusion of incidental or consequential damages, so the above limitations or exclusions may not apply.
13. Export. Customer shall remain familiar with its obligations under any and all laws, statutes, regulations, ordinances of any local, states, federal, national, or other jurisdictional locality, as applicable to the export, import, and/or end-use of Synopsys products, technology, and services. Products and/or technology sold or licensed under this Agreement may be subject to various Export Control Laws and Regulations including but not limited to, U.S. Export Administration Regulations (EAR), the U.S. Office of Foreign Asset Control (OFAC), the European Union (EU) Export Control Regime Regulation (EC) No. 428/2009, and/or the EU Consolidated Sanctions List. Where a product and/or technology is identified as export controlled from the country(ies) of export to (1) the destination country(ies), (2) a restricted/proscribed end use, and/or (3) a restricted end user, a government-issued export license must be obtained prior to fulfillment under this Agreement and in accordance with all applicable laws. Customer agrees that Synopsys shall not be required to complete delivery of export controlled products or technology unless and until all required export licenses have been obtained.
14. Protection of Confidential Information. “Confidential Information” means (i) either party’s product plans, designs, costs, prices and names, non-published financial information, marketing plans, business opportunities, personnel, research, development or know-how; (ii) any information designated by the disclosing party as confidential in writing or, if disclosed orally, designated as confidential at the time of disclosure and reduced to writing and designated as confidential in writing within thirty (30) days; and (iii) the terms and conditions of this Agreement and the Purchasing Agreement; provided, however that “Confidential Information” will not include information that: (a) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the receiving party; (b) is known and has been reduced to tangible form by the receiving party at the time of disclosure and is not subject to restriction; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (d) is lawfully obtained from a third party who has the right to make such disclosure; or (e) is released for publication by the disclosing party in writing. Each party will protect the other’s Confidential Information from unauthorized dissemination and use with the same degree of care that each such party uses to protect its own like information. Neither party will use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose to third parties the other’s Confidential Information without the prior written consent of the other party.
15. Synopsys Entities. Synopsys, Inc. and its wholly-owned subsidiaries, including Synopsys International Limited, Synopsys International Limited Taiwan Branch, Synopsys Emulation and Verification SAS., Synopsys Global Kft. and Nihon Synopsys G.K., have agreed to their respective rights and obligations regarding the distribution of Hardware and the performance of obligations related to the Hardware. Customer acknowledges that: (i) 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 Hardware will be delivered; and (ii) delivery will be completed by the Synopsys entity or branch with distribution rights for the geographic region in which Hardware will be used or service will be provided.
16. Assignment. This Agreement shall bind and inure to the benefit of Synopsys’s successors and assigns, including without limitation, any entity into which Synopsys shall merge or consolidate. Customer may not assign, directly or indirectly, by operation of law or otherwise, any of Customer’s rights or obligations under this Agreement or the Purchasing Agreement without Synopsys’s prior written consent. Any attempted assignment, delegation, or transfer by Customer without such consent of Synopsys shall be void. For purposes of this Section, a transfer or assignment will be deemed to have occurred (a) if a third party (or group of third parties acting in concert) acquires beneficial ownership of fifty percent (50%) or more of either Customer’s assets or of the stock or other equity interests entitled to vote for Customer’s directors or equivalent managing authority, or (b) in the event of a merger, consolidation or other business combination between Customer and one or more third parties where Customer’s stockholders immediately before that transaction own (directly or indirectly), after that transaction, less than fifty percent (50%) of the stock or other equity interests entitled to vote for the directors or equivalent managing authority of the surviving entity.
17. Miscellaneous. This Agreement and the Purchasing Agreement are the entire agreement between Customer and Synopsys with respect to the Hardware, and supersede any previous oral or written communications and documents. No additional or inconsistent terms on any purchase order or similar document that Customer may submit to Synopsys will be binding on Synopsys or have any legal effect. This Agreement is governed by the laws of the State of California, USA, excluding its conflicts of laws principles. The federal and state courts located in Santa Clara County, California have exclusive jurisdiction over any disputes arising from or relating to this Agreement and each party consents to such jurisdiction and venue. This Agreement will not be governed by the U. N. Convention on Contracts for the International Sale of Goods. If any provision, or portion thereof, of this Agreement is found to be invalid or unenforceable, it will be enforced to the extent permissible under applicable law and the remainder of this Agreement will remain in full force and effect. Failure to prosecute a party’s rights with respect to a default hereunder will not constitute a waiver of the right to enforce rights with respect to the same or any other breach. Each party will be excused from performance of its obligations under this Agreement, except payment obligations, to the extent that performance is rendered impossible by earthquake, fire, flood, governmental action, labor disruptions, supplier failures, or any other event or circumstance beyond that party’s reasonable control. Except where this Agreement expressly provides exclusive remedies, all rights and remedies of either party (including termination rights) are cumulative. The prevailing party in any action to enforce this Agreement will be entitled to recover costs and expenses including reasonable attorneys’ fees. Section headings in this Agreement 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. The parties to this Agreement are independent contractors. Neither party is the agent or partner of the other party, or has any power or authority to act on behalf of the other party.