EXHIBIT 10.17
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INTERNATIONAL DISTRIBUTOR AGREEMENT
THIS INTERNATIONAL DISTRIBUTOR AGREEMENT ("Agreement") is made and
entered into as of the date of the last signature to this Agreement ("Effective
Date") by and between VERISITY Design, Inc., a California corporation with
principle offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("VERISITY")
and DAVAN TECH CO., LTD., a South Korea corporation with principle offices at
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7th Fl., Duam Bldg., #▇▇▇-▇, ▇▇▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇, 138-190
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("Distributor").
WHEREAS, VERISITY has developed and continues to develop certain
technology and products related to the design and verifying of electronics
logics.
WHEREAS, Distributor is engaged in the business of marketing such
products and desires to become a marketing representative for VERISITY's
Products (as defined below) in the Territory (as defined below); and
WHEREAS, VERISITY desires to engage Distributor for the purpose of
soliciting and procuring orders for VERISITY's Products in the Territory.
NOW, THEREFORE, the parties agree as follows:
1. Appointment. VERISITY hereby appoints Distributor for the term of this
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Agreement, and Distributor hereby agrees to act for VERISITY, as an exclusive
Distributor for the Products and services (as hereinafter defined) only within
the territory described in Schedule A (the "Territory"), subject to all of the
terms and conditions of this Agreement. Except as expressly allowed by VERISITY
in writing, Distributor agrees not to solicit orders, procure orders or
otherwise act as VERISITY's representative with respect to any Products or
establish or allow any office to do so unless such office is located within the
Territory and all such activity is conducted solely within the Territory.
Distributor may solicit and procure orders for Products only from customers
located and taking delivery within the Territory.
2. Products; Prices.
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a. The products and services covered by this Agreement ("Products") are
those listed on Schedule B hereto and updates, enhancements and new versions
which are substantially similar thereto and which are marketed under the same
model number and product nomenclature. Schedule B shall also include the prices
and terms of sale for the Products, which may be updated from time to time by
VERISITY.
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b. For purposes of this Agreement, "Software Products" are (i) computer
programs or instructions (including those fixed in electrical circuits) which
are Products or included in Products and (ii) documentation provided by VERISITY
which is related to the Product. End-User Documentation is documentation
specifically identified in writing by VERISITY as provided for end-users.
Software Products are licensed not sold; any references herein to the sale or
price of any Software Products or any copy thereof refers to the license or
license fee thereof. Distributor will in no event be entitled to receive or have
any access to any source code of the Software Products.
c. The prices, charges, and terms of sale of the Product shall be those
established by VERISITY. In soliciting and procuring orders for the Products,
Distributor shall quote only the prices and terms on Schedule B. Quotation of
any other prices than those in the published Price List must be authorized in
writing by VERISITY. VERISITY reserves the right, at its sole discretion, to
establish or change the prices, Price List, terms and conditions of sale,
delivery and packing charges for the Products at any time during the term of
this Agreement.
3. Commission.
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a. In consideration for the covenants of Distributor contained herein,
and as the entire compensation of Distributor for its services under this
Agreement, VERISITY will pay Distributor a commission equal to a percentage (as
specified in Schedule C) of the Net Revenues (as defined below) actually
collected by VERISITY (and not subject to refund or other contingency) on
account of shipments on bona fide firm orders, acceptable to VERISITY, in the
Territory, for the Products.
b. Commissions will not be paid for current or future sales of spare
parts, tools or services unless such spare parts, tools or services are Products
in Schedule B. Commissions on Net Revenues received in a calendar month will be
paid within thirty (30) days after the end of such calendar month by check or
wire transfer to the account stipulated by Distributor.
c. For purposes of this Agreement, "Net Revenues" shall mean the revenue
actually received from the sale, license or other disposition of Products in the
Territory during the applicable month, less all applicable Deductions and
Allowances (Deductions and Allowances are defined in Schedule D attached).
Deductions and Allowances do not include withholdings of local income taxes for
which VERISITY receives credits applicable against its U.S. income taxes).
d. All invoices in connection with orders solicited by Distributor shall
be rendered by VERISITY directly to the customer.
e. Nothing in this Agreement shall be construed as limiting in any manner
VERISITY's marketing or distribution activities of any kind in the Territory.
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f. VERISITY shall have the right, without any liability to Distributor
for a commission, to:
(1) reject any order obtained by Distributor;
(2) approve or disapprove any credit to be extended to any customer;
and
(3) accept the return of Products or to make any Allowances or
Deductions as VERISITY shall deem appropriate.
g. All shipments are contingent upon VERISITY obtaining an appropriate
export license from the United States Department of Commerce. If requested by
VERISITY, Distributor shall provide reasonable assistance in securing such
export license.
4. Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE
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LAW, VERISITY MAKES NO WARRANTIES TO DISTRIBUTOR WITH RESPECT TO THE PRODUCTS OR
ANY SERVICES AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
5. Relationship of Parties. The parties hereto expressly understand and agree
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that Distributor is an independent contractor in the performance of each and
every part of this Agreement and is solely responsible for all of its employees
and agents and its labor costs and expenses arising in connection therewith and
for any and all claims, liabilities or damages or debts of any type whatsoever
that may arise on account of Distributor's activities, or those of, its
employees or agents in the performance of this Agreement. Distributor has no
authority, right or ability to bind or commit VERISITY in any way (including,
without limitation, by accepting orders) or sell any Products and will not
attempt to do so or imply that it may do so. VERISITY is in no manner associated
with or otherwise connected with the actual performance of this Agreement on the
part of Distributor, nor with Distributor's employment of other persons or
incurring of other expenses. Except as expressly provided herein, VERISITY shall
have no right to exercise any control whatsoever over the activities or
operations of Distributor.
6. Responsibilities of Distributor. Distributor's duties hereunder are as
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follows:
a. Distributor shall use its best efforts to actively promote, solicit
orders for and procure orders for the Products within the Territory on a
continuing basis, shall comply with good business practices and all applicable
laws and regulations and shall diligently perform all other duties as mutually
agreed upon herein. Distributor shall be solely responsible for its own expenses
in carrying out its responsibilities under this Agreement. [Distributors efforts
shall generate Net Revenues to VERISITY of at least the minimum amounts set
forth in Schedule C (the "Minimum Amounts").] Distributor will maintain
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appropriate demonstration equipment and an adequate facility capable of handling
technical support and customer demonstrations and provide technical assistance.
b. In its efforts, Distributor will use VERISITY's then current names for
the Products (but will not represent or imply that it is VERISITY or is a part
of VERISITY and will obtain VERISITY's prior approval of any such use) and will
not add to, delete from or modify any sales or marketing documentation or forms
provided by VERISITY except with the prior written consent of VERISITY.
Distributor will not otherwise use or register (or make any filing with respect
to) any trademark, name or other designation relevant to the subject matter of
this Agreement anywhere in the world. Distributor will not contest anywhere in
the world the use by VERISITY or use authorized by VERISITY of any trademark,
name or other designation relevant or similar to the subject matter of this
Agreement or application or registration therefor, whether during or after the
term of this Agreement. Distributor acknowledges and agrees that Distributor has
no interest in or right to VERISITY's names, designations or trademarks, or any
label or design or other marks used in connection with VERISITY or the Products.
Distributor further acknowledges and agrees that all of its use of such
trademarks, names or other designations shall inure to the benefit of VERISITY.
c. Distributor shall maintain an office in the Territory and employ
sufficient qualified employees and agents, including adequate engineering and
sales staff, to assist in diligently performing all of its duties as mutually
agreed upon herein. Distributor shall attend sales conferences and take
advantage of technical training programs, if offered, by VERISITY, for such
persons at Distributor's expense.
d. Distributor shall keep VERISITY informed as to any problems
encountered with the Products and as to any resolutions arrived at for those
problems, and shall communicate promptly to VERISITY any and all modifications,
design changes, improvements of the Products, or new customer requirements
suggested by any entity or person solicited by or making inquiries of
Distributor or by any employee or agent of Distributor. Distributor hereby
assigns to VERISITY any and all right, title and interest in and to any such
suggested modifications, design changes or improvements of the Products held by
Distributor, without the payment of any additional consideration.
e. At VERISITY's request, Distributor shall promptly submit to VERISITY
reports containing pertinent information about Distributor's customers and the
Products and Distributor's activity within the Territory. VERISITY may
reasonably request information concerning customers and business volumes,
financial information and operating plans. Distributor shall advise and assist
VERISITY with respect to sales aids and furnish available information concerning
competitive products sold in the Territory.
f. Distributor will provide good faith sales forecasts and business
status reports to VERISITY for the Products. The forecasts will be provided in
writing and in a format specified by VERISITY on a quarterly basis before the
beginning of the new quarter.
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g. Distributor will coordinate with customers in establishing irrevocable
letters of credit to VERISITY through the bank specified by VERISITY for payment
of the Products. Distributor shall also assist VERISITY in the collection of
payment should the need arise.
h. Distributor will supply updates of VERISITY software to those
customers who are under warranty or annual maintenance at no charge, and which
updates will be supplied by VERISITY to the Distributor.
i. Distributor will obtain the appropriate signatures on the evaluation
agreement as shown in Schedule G by any customer before the installation of any
evaluation software at the customer site and return same to VERISITY within ten
(10) days of such installation. Furthermore, Distributor will obtain the
appropriate signatures on any technology license agreements as shown in Schedule
H by any customer on each sale of Products and return same to VERISITY within
ten (10) days of such installation.
j. Distributor will not engage in, cause or permit the reverse
engineering, disassembly or recompilation or similar manipulation of the
Products; provided, however, that the foregoing restriction is limited so that
it prohibits such activity only to the maximum extent such activity may be
prohibited without violating applicable law relating to computer software.
k. Distributor will not modify or otherwise alter the Products and shall
not remove any legal notices from any portions of the Products.
l. Distributor warrants and represents that it has no intention of
exporting or reexporting outside the Territory any Products, customer designs,
customer verification environment, whether for demonstration purposes or not, or
Proprietary Information (defined below), any part thereof or any direct product
thereof, whether directly or indirectly, and understands that it may not do so
under this Agreement. Distributor agrees not to, and not to allow, export or
reexport of any Product or Proprietary Information or any part thereof or any
direct product thereof directly or indirectly from the U.S. or elsewhere, (a) in
violation of any such restrictions, laws or regulations or (b) without all
required licenses and proper authorizations, to Cuba, Libya, North Korea, Iran,
Iraq or Rwanda or to any Group D:1 or E:2 country (or any national of such
country) specified in the then current Supplement No. 1 to part 740 of the U.S.
Export Administration Regulations (or any successor supplement or regulations).
Licensee shall promptly execute any documents required by Licensor to comply
with U.S. export requirements or demonstrate to Licensor its compliance with
such requirements. Without limitation of the foregoing, Distributor agrees to
commit no act which, directly or indirectly, would violate the U.S. Foreign
Corrupt Practices Act (regarding, among other things, payments to government
officials) or any United States law, regulation, or treaty
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or any other international treaty agreement, relating to national security or to
the export or reexport of any of the Products or associated technical data or
products thereof to which the United States adheres. Distributor agrees to
indemnify VERISITY against any claim, demand action, proceeding, investigation,
loss, liability, cost and expense (including attorneys' fees) suffered or
incurred by VERISITY and arising out or related to any violation (whether
intentional or unintentional) by Distributor of any of the warranties or
covenants in this section.
m. Distributor understands that VERISITY is not bound to any price
(whether or not on Schedule B) with respect to an order until VERISITY has
accepted such order and Distributor will not imply or represent anything to the
contrary to any person or entity; in any event VERISITY will not be liable to
Distributor for and Distributor will have no rights with respect to any price
change (whether before or after acceptance of an order) or any other matter with
respect to the dealings between VERISITY and customers.
n. Distributor shall maintain at each office in the Territory sufficient
Products for demonstration purposes. VERISITY will consign or make available to
Distributor certain demonstration products on an as-needed basis. In no event
shall Distributor be supplied with more than the amount of demonstration
products which VERISITY deems necessary hereunder in its sole discretion.
o. During the term of this Agreement, and for a period of ninety (90)
days after termination of this Agreement, Distributor shall not:
(1) represent, assist, or provide either directly or indirectly
marketing services of any sort, to any individual, firm, corporation,
partnership, or other entity which manufactures or distributes products which
are competitive with the Products;
(2) market directly or indirectly in the Territory products which are
competitive with the Products;
(3) solicit orders for, or deal in, used goods or equipment
previously manufactured by VERISITY without written authorization from VERISITY;
or
(4) have any financial or managerial interest in another company
which represents products directly competitive to those offered by VERISITY.
Distributor may, however, represent within the Territory, an
individual, firm, corporation, partnership, or other entity which manufactures
or distributes products which are complimentary or related to the Products. [A
copy of the list of products currently sold by Distributor, either for itself or
for the account of a third party is attached as Schedule F hereto and is true,
accurate and complete. Distributor shall provide VERISITY with thirty (30) days
prior written notice of any additions it wishes to make to Schedule F.]
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p. During the term of this Agreement and for a period of one (1) year
after the termination or expiration of this Agreement, as the case may be,
Distributor shall not, directly or indirectly, solicit the employment or
services of any employee, representative or agent of VERISITY, or encourage such
employees, representatives or agents to leave VERISITY.
q. Distributor warrants and represents to VERISITY that neither this
Agreement (or any term hereof) nor the performance of or exercise of rights
under this Agreement, is contrary to, in conflict with, ineffective under, or
requires registration or approval or tax withholding under, or affects
VERISITY's proprietary rights under, any law or regulation of any organization,
country, group of countries or political or governmental entity located within
or including all or a portion of the Territory. Distributor will take no action
inconsistent with the foregoing warranty and will indemnify VERISITY from any
losses, damages, claims, settlements, attorneys fees and other expenses incurred
by VERISITY which arise due to any allegation or action of any person or entity
inconsistent with the foregoing warranty. Furthermore, Distributor agrees to
give VERISITY adequate notice of any change in legislation in the Territory
which may materially affect the contractual relationship of the Parties.
r. Distributor agrees to hold harmless, defend and indemnify VERISITY and
its officers, directors, employees, agents and servants from and against any and
all claims, damages and expenses, including reasonable legal fees and expenses,
of whatever kind and nature directly or indirectly arising out of or on account
of or resulting from Distributor's activities, including but without limitation,
any unauthorized representations of Distributor, or out of Distributor's failure
to comply with its obligations under this Agreement.
s. The failure by Distributor to comply with any of its obligations as
set forth in this Section 6 shall constitute a breach of this Agreement and
shall entitle VERISITY to give notice to Distributor requiring it to cure such
breach. If any such breach is not cured within thirty (30) days after such
notice is given, this Agreement shall, at VERISITY's option, terminate
immediately in accordance with Section 8.a.(3).
7. Duties of VERISITY. VERISITY shall have the following responsibilities
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during the term of this Agreement:
a. VERISITY shall provide Distributor, at VERISITY's expense, with
current marketing advice, sales aids, and a reasonable supply of any applicable
printed marketing materials for the Products. Any printed materials, equipment,
or spare parts furnished by VERISITY to Distributor shall be and remain at all
times the property of VERISITY.
b. VERISITY reserves the right, at any time, to change or modify the
design of or discontinue any of the Products, or parts thereof, or add Products
and to change its service policies, or its financial requirements. VERISITY
shall inform Distributor within
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a reasonable time of any changes in the Products, the prices, and marketing and
sale documentation.
c. VERISITY may conduct advertising campaigns for the Products the scope
and nature of which will be determined at VERISITY's sole discretion. Upon
request of Distributor, VERISITY will send Distributor duplicate copies of all
invoices and any customer acknowledgements.
d. With respect to each payment of commissions hereunder, VERISITY shall
provide Distributor with an accounting of the orders for which payment is made
(which shall be limited to the invoice number, customer name, calculation of Net
Revenues and rate of commissions for each order).
8. Term and Termination. Subject to the provisions for termination as provided
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herein, this Agreement shall commence on the Effective Date and shall be for a
term of [*] years, and shall be automatically renewed for successive one (1)
year terms thereafter unless either of the parties hereto gives to the other
party written notice of its election to terminate this Agreement at least ninety
(90) days prior to the expiration of the then current term. Nothing contained
herein shall preclude VERISITY's right of termination pursuant to this Section
8. Distributor understands that after termination of this Agreement, it shall
have no right whatsoever to continue as VERISITY's representative of Products
regardless of any undocumented continuation of the relationship with VERISITY.
a. This Agreement may be terminated by VERISITY for cause immediately
upon the occurrence of any of the following events:
(1) If Distributor ceases to do business, or otherwise terminates its
business operations or if there is a material change in control of Distributor;
or
(2) If Distributor fails to secure or renew any license, permit
authorization or approval for the conduct of its business in any significant
country or area of the Territory, or if any such license, permit, authorization
or approval is revoked or suspended; or
(3) If Distributor breaches any provision of this Agreement and
(except in the case of a compromise of Proprietary Information where termination
shall be effective immediately upon notice) fails to fully cure such breach
within thirty (30) days or such longer time as is provided herein of written
notice from VERISITY describing the breach; or
(4) If Distributor seeks protection under any bankruptcy,
receivership, trust deed, creditors arrangement, composition or comparable
proceeding, or if any such proceeding is instituted against Distributor; or
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
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(5) If the Net Revenues during any period (with the exception of the
first year following the initial signing of the contract, where the review will
be at the end of the first year of the contract) are less than the Minimum
Amount for that period or if the rate of Net Revenues received is such that
VERISITY reasonably believes such Minimum Amount will not be timely achieved;
provided VERISITY gives Distributor at least thirty (30) days written notice of
termination; or
(6) If this willful misconduct, wrongful act, willful neglect or bad
faith on the part of the Distributor, its officer agents or employees which
VERISITY considers to be detrimental to the best interest of VERISITY.
Violations of the U.S. law on export of technical data and commodities is
considered a wrongful act for the purposes of this clause.
b. VERISITY shall incur no liability whatsoever for any damage, loss or
expenses of any kind suffered or incurred by Distributor arising from or
incident to any termination of this Agreement by VERISITY which complies with
the terms of the Agreement whether or not VERISITY is aware of any such damage,
loss or expenses.
c. Upon termination of this Agreement by either party or naturally at the
end of the term:
(1) All rights and licenses of Distributor and all obligations of
VERISITY hereunder shall terminate, except rights to payments accrued prior to
termination (including during any applicable notice period).
(2) Distributor shall immediately:
(a) discontinue any use of the name, logotype, trademarks or slogans
of VERISITY and the trade names or other designations of any of the Products;
(b) discontinue all representations or statements from which it might
be inferred that any relationship exists between VERISITY and Distributor;
(c) cease to promote, solicit orders for or procure orders for
Products (but not act in any way to damage the reputation of VERISITY or any
Product);
(d) return to VERISITY at Distributor's expense all Products,
demonstration units, samples, instruments, equipment, spare parts, catalogues
and literature of VERISITY then in possession of Distributor; and
(e) return to VERISITY all Proprietary Information (as defined below)
in Distributor's possession, custody or control in whatever form held (including
copies or embodiments of Proprietary Information or relating to Proprietary
Information) upon termination of this Agreement, or at any time or from time to
time, upon written request by VERISITY.
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(3) The following provisions of this Agreement shall remain in effect
after termination (including, without limitation, the natural expiration
hereof): 4, 6.o, 6.p, 9, 11 and 12.
(a) After termination (by expiration or otherwise) of this Agreement
for any reason whatsoever, promptly after receipt of the applicable Net Revenues
and all Deductions and Allowances have been determined and applied, VERISITY
shall pay Distributor all commissions earned (as provided in Section 3 above)
but not previously paid to Distributor prior to the termination date.
(b) Distributor's acceptance of its final commission check from
VERISITY shall be in full satisfaction of all amounts due to Distributor
hereunder and a full and complete discharge by Distributor of any and all
liabilities of VERISITY.
9. Proprietary Information; Proprietary Rights
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a. Distributor acknowledges that, in the course of performing its duties
under this Agreement, it may obtain information relating to Products and to
VERISITY which is of a confidential and proprietary nature ("Proprietary
Information"). Such Proprietary Information may include, without limitation,
chip design and chip test objects and technologies, computer codes, software,
computer hardware, circuits, trade secrets, know-how, inventions, techniques,
processes, programs, algorithms, schematics, data, customer lists, financial
information and sales and marketing plans. Distributor and its employees and
agents shall, at all times, both during the term of this Agreement and after its
termination, keep in trust and confidence all such Proprietary Information, and
shall not use such Proprietary Information other than in the course of its
duties as expressly provided in this Agreement, nor shall Distributor or its
employees or agents disclose any such Proprietary Information to any person
without VERISITY's prior written consent. Distributor acknowledges that any such
Proprietary Information received by Distributor shall be received as a fiduciary
of VERISITY.
b. Distributor shall not be bound by this Section 9 with respect to
information Distributor can document (i) at the date hereof has entered or later
enters the public domain as a result of no act or omission of Distributor or its
employees, or agents or (ii) is lawfully received by Distributor from third
parties without restriction and without breach of any duty of nondisclosure by
any such third party.
c. VERISITY and its licensors retain all right, title and interest in and
to (i) all copyrights, patent rights, trade secret rights and other proprietary
rights in the Products, all copies and derivative works thereof (by whomever
produced) and all related documentation and materials, (ii) all of VERISITY's
service marks, trademarks, tradenames or any other designations and (iii) all
other proprietary rights in the Products.
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d. VERISITY hereby grants Distributor a nontransferable license only to
demonstrate in the Territory the Products solely to bona fide clients
considering ordering such Products in strict accordance with all the terms of
this Agreement and solely to the extent necessary to fulfill the purposes of
this Agreement.
e. Distributor shall bind in writing its employees who have access to
Proprietary Information to hold such information in confidence and not to
disclose any thereof except as expressly allowed herein.
10. Intellectual Property Indemnification. VERISITY shall hold Distributor and
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its officers, directors, agents and employees harmless from liability resulting
from infringement by the Product of any patent issued as of the Effective Date
of this Agreement or any trademark or copyright, provided VERISITY is promptly
notified of any and all threats, claims and proceedings related thereto and
given reasonable assistance and has sole control over the defense and all
negotiations for a settlement or compromise; VERISITY will not be responsible
for any settlement it does not approve in writing. THE FOREGOING IS IN LIEU OF
ANY WARRANTIES OF NONINFRINGEMENT, WHICH ARE HEREBY DISCLAIMED.
11. Liability Limitation. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE
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LAW, VERISITY WILL NOT BE LIABLE UNDER ANY SECTION OR SUBJECT MATTER OF THIS
AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY (I) INCIDENTAL OR CONSEQUENTIAL DAMAGES OR (II) COST OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
12. Miscellaneous.
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a. Assignment Binding Effect. Neither this Agreement nor any right or
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obligation hereunder is capable of being assigned by Distributor without the
prior written consent of VERISITY and any purported transfer or assignment will
be void. VERISITY may assign its rights and duties hereunder. Except as
otherwise provided herein, this Agreement shall be binding upon and inure to the
benefit of the successors and assigns (whether by operation of law, merger,
change of control or otherwise) of the parties.
b. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one in the same instrument.
c. Severability. If any provision of this Agreement is held to be illegal
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or unenforceable, that provision shall be limited or eliminated to the minimum
extent necessary so that this Agreement shall otherwise remain in full force and
effect and enforceable.
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d. Modification. Except as otherwise expressly provided herein, any
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provision of this Agreement may be amended and the observance of any provision
of this Agreement may be waived (either generally or any particular instance and
either retroactively or prospectively) only with the written consent of VERISITY
and Distributor.
e. Governing Law. This Agreement shall be governed by and construed under
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the laws of the State of California and the United States without regard to the
conflict of laws provisions thereof and without regard to the United Nations
Convention on the International Sales of Goods. Unless waived by VERISITY in
writing for the particular instance (which VERISITY may do at its option), the
sole jurisdiction and venue for actions related to the subject matter hereof
shall be the Superior Court of the State of California for Santa ▇▇▇▇▇ County or
the United States District Court for the Northern District of California. Both
parties consent to the jurisdiction of such courts and agree that process may be
served in the manner provided herein for giving of notices or otherwise as
allowed by California law. In any action or proceeding to enforce rights under
this Agreement, the prevailing party shall be entitled to recover costs and
attorneys' fees.
f. Arbitration. Any dispute or claim arising out of or in connection with
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this Agreement shall be finally settled by binding arbitration. Any arbitration
shall be initiated and conducted in San Jose, California, under the commercial
rules and auspices of the American Arbitration Association. Any arbitration
shall be conducted by three (3) arbitrators, at least one of whom shall have
recognized expertise in the field of semiconductor testing. The arbitrators
shall apply California law to the merits of any dispute or claim, without
reference to state rules of conflicts of law or arbitration. Judgment on the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. Notwithstanding the foregoing, the Parties may apply to
any court of competent jurisdiction for injunctive relief without breach of this
arbitration provision.
g. Applicable Language. The official test of the Agreement is in the
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English language, and if a translation is made to any other language, such
translation shall be solely for the convenience of the Parties, it being agreed
that in the construction and interpretation of the Agreement, the executed
English language test shall govern. Each Party declares that its representative
who signs this Agreement on its behalf understands the contents thereof.
h. Notice. Any notice required or permitted under this Agreement shall be
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given in writing and shall be deemed effectively given: (i) immediately upon
personal delivery or facsimile transmission to the parties to be notified, (ii)
one (1) day after deposit with a commercial overnight courier with tracking
capabilities or (iii) three (3) days after deposit with the United States Postal
Service, by registered or certified mail, postage prepaid and addressed to the
party to be notified (Attn: President) at the address
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indicated for such party on the signature page hereof, or at such other address
as the party may designate by ten (10) days advanced written notice to the other
party.
i. Entire Agreement. This Agreement is the sole agreement between the
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parties with respect to the subject matter hereof. This Agreement supersedes
all prior agreements or discussions between the parties with respect to
distribution, marketing and/or service of any products of or distributed by
VERISITY.
j. Remedy for Breach. Termination of this Agreement shall not be an
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exclusive remedy for breach of this Agreement and, whether or not termination is
effected, all other remedies will remain available.
IN WITNESS WHEREOF, the parties have entered into this Agreement
effective as of the date first above written.
VERISITY Design, INC.
Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and CEO
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Date: 11/10/99
---------------------------
Distributor: Davan Tech Co., Ltd.
Signature: /s/ Sancho Park
---------------------------
Name: Sancho Park
Title: Executive Director
Address: ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
#▇▇▇-▇, ▇▇▇▇▇▇▇▇-▇▇▇▇,
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Date: 10/5/99
---------------------------
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SCHEDULE A
The Territory consists of the following areas only: South Korea
-14-
SCHEDULE B
The attached price list is [*] As an example;
US Price = [*]
South Korea Price = [*]
The Representative Company can provide its customer [*]
The Representative Company shall update the attached US price list [*]
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
-15-
VERISITY Korean Specman Price List - Revised Final Version
Product Number Product Name List Price Remarks
SM1000 Specman Elite [*] Product Floating
SM1000T Node Transfer [*] Node Transfer
SM1000M Maintenance [*] 1 Year Maintenance
Specman Simulator Interfaces
SM1021 Verilog XL interface [*]
SM1022 Leapfrog interface [*]
SM1023 QuickHDL interface [*]
SM1024 Modelsim interface [*]
SM1025 VSS interface [*]
SM1026 VCS interface [*]
SM1027 Speedsim interface [*]
SM1028 NC Verilog interface [*]
[*]
SM1301 License upgrade to World wide--Wide Area Network [*]
SML1012 [*] [*]
TR1000 Specman Basic Training Held at Verisity's headquarters [*]
in Mt. View, CA
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
-16-
SCHEDULE C
I. COMMISSION PERCENTAGES
The commission percentages will be as follows:
Business Year Commission Rate Remarks
------------- --------------- -------
Products* Maintenance*
------------------------
FY1999 [*] [*] Based on the final PO amount
FY2000 [*] [*] Based on the final PO amount
FY2001 [*] [*] Based on the final PO amount
[*]
[*]
Over Achievement Incentive Plan Quarterly
[*]
Compensation after termination notice
Order for 3 months [*]Based on the final PO amount
Order for 3 to 6 months [*]Based on the final PO amount
*Davan Tech will provide Verisity, at the time of termination, with a
list of all ongoing sales activities which are anticipated to lead to orders
within the next 6 months.
II. Sales Quarter
(Required minimum order amounts stated in Net Revenues)
Fiscal Year Sales Quarter
----------- -------------
1999: July 1, 1999 Dec. 31, 1999 [*]
2000: Jan. 1, 2000-Dec. 31, 2000 [*]
2001: Jan. 1, 2001-Dec. 31, 2001 [*]
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
-17-
SCHEDULE D
DEDUCTIONS AND ALLOWANCES FROM NET REVENUES
(1) Deductions. Shall include the following:
----------
[*]
(2) Allowances: Set-Offs and Charge-Backs. Net Revenues shall not include any
-------------------------------------
revenues from the sale of any Product for which any of the following occur
("Allowances"):
[*]
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
-18-
SCHEDULE E
DEMONSTRATION PRODUCTS, CONFIGURATIONS AND DISCOUNTS
Not Applicable
-19-
SCHEDULE F
LIST OF APPROVED THIRD PARTY PRODUCTS OR LINES
Not Applicable
-20-
SCHEDULE G
SOFTWARE EVALUATION AGREEMENT
This Software Evaluation Agreement (this "Agreement") is entered into as of
_____________ (the "Effective Date") by and between VERISITY Design, Inc.
("VERISITY") and Davan Tech ("Licensee"). The parties agree as follows, with
----------
the capitalized terms not otherwise defined having the meaning given them in
Appendix A:
1. License Rights
--------------
1.1 Licensed Programs. VERISITY hereby grants to Licensee a non-
exclusive, non-assignable, non-transferable right and license, without the right
to sublicense, (i) to use one copy of VERISITY LTD.'s proprietary software
product _________________ (the "Licensed Program") in object code form in
accordance with the documentation on a single computer located at Licensee's
facility in __________________________, solely for the purpose of evaluating the
VERISITY LTD. Technology, and (ii) to use one set of the Documentation at the
Processing Site in connection with the use of the Licensed Program.
1.2 VERISITY Design Objects. VERISITY hereby grants Licensee a non-
exclusive, non-assignable, non-transferable right and license, without right to
sublicense, (i) to use and incorporate VERISITY LTD. Design Objects into
Licensee's integrated circuit designs solely for the purpose of evaluating the
VERISITY LTD. Technology, (ii) to use the VERISITY Technical Data in connection
with integration and verification of the VERISITY ▇▇▇.▇▇▇▇▇▇ Objects and (iii)
to make, have made and test a reasonable number of Test Chips. Nothing in this
Agreement shall be interpreted as giving Licensee any right to sell, license, or
otherwise distribute any integrated circuit design incorporating any of the
VERISITY LTD. Technology.
2. Installation, Fees, and Support
-------------------------------
2.1 Initial Installation. Within a reasonable time after VERISITY has
received from Licensee an executed copy of this Agreement, VERISITY will deliver
to Licensee the Licensed Program and the Documentation. Licensee will install
the Licensed Program on the designated computer in accordance with the standard
installation procedures set forth in the Documentation.
2.2 License Fee. In consideration of the license rights granted herein,
Licensee agrees to pay to VERISITY a license fee of $____________ (the "License
Fee"). Payment of the License Fee will be due 30 days after date of invoice.
2.3 Technical Support. VERISITY will provide Licensee with technical
assistance in the installation and use of the VERISITY LTD. Technology and will
work
-21-
with Licensee to resolve with VERISITY any problems Licensee encounters in using
the VERISITY LTD. Technology.
3. Restrictions
------------
3.1 No Duplication, Modification or Reverse Engineering. Except as
expressly authorized herein, Licensee may not (i) duplicate all or any portion
of the VERISITY LTD. Technology, (ii) modify the VERISITY LTD. Technology, or
(iii) incorporate any portion of the VERISITY LTD. Technology into any other
program or product. Licensee acknowledges that VERISITY considers the source
code of the Licensed Program and its underlying algorithms to constitute
valuable trade secrets of VERISITY and, therefore, Licensee will not at any time
attempt to reverse engineer, disassemble, decompile or otherwise reduce the
Licensed Program or any component thereof to human-readable form, nor will
Licensee attempt to examine or copy, in whole or in part, any of the underlying
algorithms of the Licensed Program.
3.2 Ownership. Nothing in this Agreement shall affect the exclusive
ownership by VERISITY, or its licensors, of the VERISITY LTD. Technology or any
patents, trademarks, copyrights or other intellectual property rights pertaining
to the VERISITY LTD. Technology. Licensee will not exceed the scope of the
licenses granted herein.
3.3 U.S. Government Restricted Rights. The VERISITY LTD. Technology is
provided with Restricted Rights. Use, duplication, or disclosure by the U.S.
Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of
the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013
or subparagraphs (c)(l) and (c)(2) of the Commercial Computer Software-
Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is VERISITY
Design, Inc., whose address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
4. Limited Warranty
----------------
4.1 Limited Warranty. VERISITY warrants that the media on which the
VERISITY LTD. Technology is delivered will be free from defects in materials and
workmanship under normal use and service for a period of 30 days from the date
of delivery to Licensee. Licensee's exclusive remedy and VERISITY's sole
obligation under this warranty shall be for VERISITY to redeliver on defect-free
media that portion of the VERISITY LTD. Technology that does not meet this
warranty.
4.2 Warranty Exclusions. Any unauthorized modification or attempted
modification of the VERISITY LTD. Technology by Licensee shall terminate the
warranty obligations of VERISITY under this Section 4. VERISITY does not
warrant that the VERISITY LTD. Technology will meet Licensee's design
requirements, that it will operate in the combinations that may be selected for
use by Licensee, that the
-22-
operation of the VERISITY LTD. Technology will be uninterrupted or error-free,
or that any Test Chips will operate error-free or will be commercially
manufacturable.
4.3 Warranty Disclaimer. VERISITY'S ENTIRE LIABILITY AND LICENSEE'S
EXCLUSIVE REMEDY AS TO DEFECTS, PERFORMANCE, OR NONPERFORMANCE OF THE VERISITY
LTD. TECHNOLOGY AND THE DELIVERED MEDIA SHALL BE THE WARRANTIES AND REMEDIES SET
FORTH IN THIS SECTION 4, REGARDLESS OF THE THEORY OF CLAIM OR FORM OF ACTION.
THE WARRANTIES SET FORTH IN THIS SECTION 4 ARE THE ONLY WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, THAT ARE MADE BY VERISITY, AND VERISITY DISCLAIMS ALL
OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VERISITY, ITS AGENTS, OR ITS
EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE
WARRANTIES IN THIS AGREEMENT.
5. Limitation of Liability
-----------------------
5.1 VERISITY Liability. NEITHER VERISITY NOR ANYONE ELSE WHO HAS BEEN
INVOVERSITYED IN THE CREATION, PRODUCTION OR DELIVERY OF THE VERISITY LTD.
TECHNOLOGY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR
INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES,
OR TECHNOLOGY, AND THE LIKE) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR
INABILITY TO USE THE VERISITY LTD. TECHNOLOGY, EVEN IF VERISITY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL VERISITY'S AGGREGATE
LIABILITY FOR ALL MATTERS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT,
WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE LICENSE FEES PAID TO VERISITY
FOR THE VERISITY LTD. TECHNOLOGY. LICENSEE ACKNOWLEDGES THAT THE FOREGOING
LIMITATION REFLECTS A BARGAINED-FOR ALLOCATION OF RISK AND THAT LICENSEE'S
AGREEMENT TO THE PROVISIONS OF THIS ARTICLE 5 IS A PRE-CONDITION TO AND A
MATERIAL INDUCEMENT FOR VERISITY TO ENTER INTO THIS AGREEMENT AND LICENSE THE
USE OF THE VERISITY LTD. TECHNOLOGY TO LICENSEE.
6. Term and Termination
--------------------
6.1 Term of the Agreement. This Agreement will begin on the Effective
Date and expire at the end of ______ days unless it is terminated earlier in
accordance with Section 6.2 or renewed in accordance with Section 6.4.
6.2 Early Termination. VERISITY may terminate this Agreement if Licensee
commits any breach or default and fails to provide an acceptable remedy of such
breach within 10 days after receipt of written notice of such breach from
VERISITY. Licensee
-23-
may terminate this Agreement at any time by returning the VERISITY LTD.
Technology to VERISITY.
6.3 Upon Termination. Upon termination of this Agreement, all licenses
granted to Licensee will be terminated. Within ten days following the
termination, Licensee must return the original of the Licensed Program to
VERISITY and destroy and account for all copies thereof.
6.4 Renewal. Upon request of Licensee and a showing that additional time
is needed to fully evaluate the VERISITY LTD. Technology, VERISITY may, at its
option, extend this Agreement for up to 30 days.
6.5 Survival. The rights and obligations of the parties under Sections 3,
4.3, 5.1, 6.3, 6.5, 7, 8, and 9 shall survive the expiration or termination of
this Agreement.
7. Proprietary Information
-----------------------
7.1 Definition. Proprietary Information of a party means information and
data in written, graphic or machine-readable form and marked "confidential" or
with a similar proprietary legend. "Proprietary Information" of VERISITY
includes, regardless of form and without the necessity of any proprietary
legend, the VERISITY LTD. Technology.
7.2 Obligation. Each party shall use the same degree of care and
safeguards that it takes with its own Proprietary Information of a similar
nature, but in no event less than a reasonable degree of care (i) to prevent the
publication, communication, or dissemination of the Proprietary Information of
the other party to any third party and (ii) to prevent any use of such
Proprietary Information not authorized herein. The obligations of this Section
7.2 will survive the termination or expiration of this Agreement and will expire
five (5) years from such termination or expiration.
7.3 Exclusions. The provisions of Section 7.2 will not apply to any
Proprietary Information of the disclosing party that: (i) is known by the
receiving party without restriction prior to the time of disclosure; (ii) is
generally known and available in the public domain through no fault of the
receiving party; (iii) is developed independently by the receiving party using
no Proprietary Information of the disclosing party; or (iv) is rightfully
received by the receiving party without restriction from a third party that is
under no obligation of confidentiality; In addition, the receiving party may
disclose Proprietary Information of the disclosing party with the prior written
approval of the disclosing party or to a court or other government body of
competent jurisdiction when required to do so by such body provided it uses
reasonable efforts to give prompt prior notice to the disclosing party and to
limit disclosure to that which is legally required.
7.4 Injunctive Relief. Each receiving party expressly agrees that
monetary damages would be inadequate to compensate the disclosing party for any
breach of any
-24-
provision of this Article 7, that any such breach or threatened breach will
cause irreparable injury to the other party, and that, in addition to any other
remedies that may be available to it in law or in equity, the disclosing party
shall be entitled to obtain injunctive relief against the threatened or
continuing breach of any provision of this Article 7 without the necessity of
proving actual damages.
8. General
-------
8.1 Scope of Agreement; Amendment. This Agreement is the complete and
exclusive statement of the agreement between the parties with respect to the
subject matter hereof and supersedes all other written or oral communications
between the parties with respect to the license and use of the VERISITY LTD.
Technology. This Agreement may be amended only by a written document signed by
both parties. The terms and conditions of this Agreement will not be modified
by any purchase order issued by Licensee in connection with its license of the
VERISITY LTD. Technology, even if such purchase order states that its terms
shall prevail.
8.2 No Waiver. Neither party will, by mere lapse of time, without giving
notice or taking other action, be deemed to have waived any breach by the other
party of any of the provisions of this Agreement. Further, the waiver by either
party of a particular breach of this Agreement by the other will neither be
construed as nor constitute a continuing waiver of such breach or of other
breaches of the same or any other provision of this Agreement.
8.3 Assignment. Licensee represents that it is acting on its own behalf
and is not acting as an agent for or on behalf of any third party, and further
agrees that it may not assign its rights or obligations under this Agreement, by
operation of law or otherwise, without VERISITY's prior written consent, which
shall not be unreasonably withheld.
8.4 Governing Law; Unenforceability. All questions concerning the
validity, operation, interpretation, and construction of this Agreement will be
governed by and determined in accordance with the laws of the State of
California, without regard to its conflict of laws provisions. The parties
agree that the United Nations Convention on Contracts for the International Sale
of Goods is specifically excluded from application to this Agreement. If a
court of competent jurisdiction determines that any provision of this Agreement
is invalid, illegal, or otherwise unenforceable, such provision shall be
enforced as nearly as possible in accordance with the stated intention of the
parties, while the remainder of this Agreement shall remain in full force and
effect. To the extent any provision cannot be enforced in accordance with the
stated intentions of the parties, such provision shall be deemed not to be a
part of this Agreement.
-25-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above:
VERISITY Design, Inc. [Licensee]:
By: s/b ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ indecipherable
----------------------------- ------------------------
Name: Name:
Title: Title:
-26-
Appendix A
Definitions
VERISITY Technical Data means all of the following, in whatever form, provided
by VERISITY to Licensee or generated by Licensee's use of the Licensed Program:
[*]
Documentation means VERISITY's standard user documentation for the Licensed
Program.
VERISITY LTD. Technology means the Licensed Program, the VERISITY Design
Objects, the VERISITY Technical Data and the Documentation.
Test Chip means [*]
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
-27-
SCHEDULE H
TECHNOLOGY LICENSE AGREEMENT
N/A
-28-