MIME-Version: 1.0 Content-Location: file:///C:/05745613/harmony_terms.htm Content-Transfer-Encoding: quoted-printable Content-Type: text/html; charset="us-ascii" Novas Harmony Program Agreement Terms

NOVAS

HARMONY PROGRAM AGREEMENT

 

This Harmony Program Agreement (this &#= 8220;Agreement”), is made effective as of the Effective Date b= y Member (“Member”) and between Novas Software, Inc., a California corporation with offices at 2025 Gateway Place, Suite 480, San Jose, CA 95110  (“Novas”) and Member.

This Agreement governs the Member’s participation = in the Harmony Program (“Program”) and sets forth the terms and conditions under which Novas may license and provide support for certain of its software products (“Licensed Software”= ) to Member.  This Agreement pre= vails over any additional, conflicti= ng or inconsistent terms and conditions appearing on any purchase order submitted= by Member.

1.      = PROG= RAM.  The Program is established to coordinate and encourage the development of commercially available verification and other design tools and data processing products = (“Products”) that are integrated for use with Novas software products.  The Program is also intended to pr= ovide information to end-users of Novas software products about Products that have been integrated for use with Novas’s soft= ware products.  This Agreement does= not establish, by law, a joint venture,= partnership or agency relationship.  Neither party has any right or authority to create any obligation, representation or responsibility, express or implied, on behalf of the other party in any manner whatsoever.

2.&n= bsp;      PROGRAM REQUIREMENTS.   Memb= er shall pay the applicable Annual License Fee specified on the Order Form and submit a written description, accompanied by a design flow diagram, that defines the minimum level of integration between the Member Products listed in Exhibit A and the Novas Software (the “Specifications”).  Novas and Member will each designa= te a technical contact (the "Technical Contacts") as the primary individuals responsible for facilitating communication between Novas and Member regarding Member’s integration efforts under this Agreement.  Upon completion of= the Member’s integration efforts, Member Products that conform with their associated Specifications shall be deemed an “Integrated Product” for the purposes of this Agreement.  From time to = time Novas will provide Member access to updated versions of the Licensed Softwa= re and related documentation.  Me= mber will use commercially reasonable efforts to adapt each Integrated Product to achieve full compatibility with the latest version of the applicable Licens= ed Software within a mutually-agreed upon period.  The Annual License Fee for the Ini= tial Term and each Renewal Term shall be paid within thirty (30) days of Novas’ invoice.

3.      = LICENSES.  Subject to Member’s complian= ce with the terms and conditions of this Agreement= , including without limitation Member’s payment obligations, Novas hereby grants, and Member accepts, a personal= , nontransferable,= nonexclusive right and license to use internally, during the term, the number of copies of Licensed Software for which Member has paid the applicable Annual License Fees, in object code f= orm only, on a server controlled b= y or on behalf of Member, solely fo= r the purposes of developing, testin= g, supporting and demonstrating Integrated Prod= ucts that interoperate with the Licensed Software, and not for general internal use throughout Member’s enterprise.  Member may make copies of the Novas Software only for backup purposes, provided that Member reproduces all copyright and other proprietary notices included in the original copies of such Licensed Software.

4.      = RESTRICTIONS.  Licensed Software is licensed, not sold, to Member and Member may use the Licensed Software pursuant to the terms of this Agreement, and not for any other purpose.  Member agrees = that the Licensed Software and the source code thereto and related materials constitute valuable assets and trade secrets of Novas.  Except as expressly stated herein<= st1:PersonName w:st=3D"on">, all right, title and interest (including without limitation any intellectual property rights) in and to the Licensed Software remain exclusively with Novas and i= ts licensors, and neither this Agreement nor any actions of Novas will be deemed to grant any other rights= or licenses by implication, estoppel or otherwise.  Member shall not, and s= hall not permit any third party to:  (i) modify, decompile, disassemble, reverse engineer or attempt to discover or disclose any source code of any Licensed Software; (ii) sell, distribute, license, lend, or otherwise use or allow others to use any Licensed Software for the benef= it of third parties; (iii) except as expressly set forth herein, modify, incorporate into or with other software, or create a derivative work of any part of any Licensed Software; (iv) benchmark or use for competitive purposes any Licensed Software or make statements in any customer forum or public forum referring to performance, quality, or functionality comparisons between any Licensed Software and other produc= ts; or, (v) defeat, or attempt to defeat any technological restrictions imposed by any license management method used to enable access to or use of any Licensed Software.=

5.      = PROMOTION.  Member hereby grants Novas the rig= ht to list Member's name and Integrated Products in promotional items such as pre= ss releases, program datasheets, or trade show event signage and to include r= eferences to and descriptions of the Integrated Products in printed and or electronic marketing collateral.  The par= ties may issue one or more press releases, either jointly or individually, referencing this Agreement, the Integrated Products, and their= integration with the Licensed Software.  A= ll such press releases must be mutually agreed upon by the parties before rele= ase or publication.  The parties m= ay participate in other marketing efforts as mutually agreed upon in writing by the parties.

6.      = SUPPORT.  Subject to the payment of the Annu= al License Fees, Novas shall prov= ide Member with technical support for the Licensed Software through the Technic= al Contacts as follows:  Novas sh= all use reasonable commercial efforts to correct any reproducible programming e= rror identified in the Licensed Software by issuing defect correction informatio= n, including but not limited to documentation, corrected code or work-around. Upon identifi= cation of any error in the Licensed Software, Member shall notify Novas of such error and provide Novas with enough information to allow Novas to locate or reproduce such error.=

7.      = CONFIDENTIALITY.  “Confidential Information” means the Member Products (Confidential Informat= ion of Member) the Licensed Software (Confidential Information of Novas) and ot= her related business or technical information of a party that, if disclosed in writing, is ma= rked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identi= fied as “confidential” or “proprietary” at the time of d= isclosure.  The party receiving Confidential Information (“Recipient”) of the disclosing party (“Owner”) will not use the Owner’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of its employees and subcontractors that need to know such Confidential Information for the performance of this Agreement,= and on a confidential basis to Recipient’s legal or financial advisors who are under obligations of non-disclosure to Recipient, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein.  The obligations and restrictions s= et forth above shall not apply to information that Recipient can document: (a)= was known to Recipient at the time of disclosure; (b) has become publicly known through no wrongful act of Recipient; (c) has been rightfully received from= a third party authorized to make such disclosure without restriction; (d) has been independently developed by Recipient without access to or use of the Confidential Information of Owner; (e) has been approved for release by wri= tten authorization of Owner; or (f) is required to be disclosed pursuant to the valid order of any government agency or judicial tribunal of competent jurisdiction; provided that Recipient gives Owner reasonable notice so that Owner may contest such order or requirement.

8.      = TERM AND TERMINATION.  This Agreement, including any license granted herein, shall commence on the Effective Date and shall continue in effect for a per= iod of one (1) year thereafter unless earlier terminated in accordance with this Section 8 (the “Initial Term”).  This Agreement shall automatically= renew for additional one (1) year terms (each a “Renewal Term”)unl= ess either party notifies the other party in writing, at least thirty (30) days prior to the expiration date of the then-current = term, that this Agreement shall not be renewed.  In addition to any other right or = remedy available under this Agreement, Novas may terminate this Agreement:  (i) without cause upon thirty (30) days = prior written notice; and, (ii) immediately in the event of a material breach by Member that remains uncured for thirty (30) days following Novas’s wr= itten notice.  Upon any termination = or expiration of this Agreement, = all rights and licenses granted herein shall cease,= and Member shall return or destroy all Licensed Software and all Confidenti= al Information in Member’s possession or control.  All fees paid by Member to Novas pursuant to this Agreement are non-refundable.  The provisions of Sections 4, 7, 8, 9, 10 and 11 and Member’s payment obligations under this Agreement shall survive termination or expiration of this Agreement for any reason.

9.      = WARRANTY.  NOVAS MAKES NO WARRANTY OF ANY KIN= D, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED SOFTWARE, INCLUDING, WITHOUT LIMITATION<= st1:PersonName w:st=3D"on">, ANY WARRANTY OF FITNESS FOR A PARTICULAR PUR= POSE, MERCHANTABILITY,= OR NONINFRINGEMENT.

10.&= nbsp;   LIMITATION OF LIABILITY.  IN NO EVENT SHALL NOVAS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR COST OF COV= ER), WHETHER BASED ON CONTRACT, TORT, OR OTHER LEGAL THEORY AND REGARDLESS OF WHETHER NOVAS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL NOVAS’S AGGREGATE LIABILITY TO MEMBER UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY MEMBER TO NOVAS DURING THE TWELVE (12) MONTH PERIOD PRECEEDING THE DATE A CLAIM FOR LIABILITY ARISES HEREUNDER.

11.&= nbsp;   GENERAL. This Agreement, including its Exhib= its, constitutes the entire understanding between= the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings or agreements, written or oral,= regarding such subject matter.  This Agreement shall be governed by and construed in accordance with the laws of= the State of California as applied to contracts between California residents executed and performed entirely within California, without regard to conflict of laws or choice of laws principles.  Any provision of this Agreement fo= und to be invalid or unenforceable by a court of competent jurisdiction shall be automatically adjusted to the minimum extent necessary for validity or enforceability.  This Agreemen= t may not be modified or amended except by a writing signed by both parties.  The failure of Novas to strictly e= nforce any condition, term or provisi= on of this Agreement on one occasion shall not be construed as a waiver on any subsequent occasion or a waiver of any other condition, term or provision.  Member may= not assign this Agreement or any of its rights or obligations hereunder, by operation of law or otherwise, without Novas’s prior written consent.  Any su= ch assignment or attempted assignment shall be null and void and of no force or effect.  Novas may freely assi= gn its rights and obligations under this Agreement without obtaining the Member’s written consent.  All notices under this Agreement shall be in writing and shall reference this Agreement.