GaN Design Kit terms and conditions

BETWEEN:
NATIONAL RESEARCH COUNCIL CANADA
1200 Montreal Road, Ottawa, Ontario K1A 0R6 (called "NRC), OF THE FIRST PART

AND:
you (the "Licensee"), OF THE SECOND PART

WHEREAS

  • (a) NRC owns, controls, or has sufficient permission to sub-license to third parties, certain information and technology, that enables integrated circuit designers to design integrated circuits that conform to the capabilities and the restrictions of the fabrication processes employed by NRC; and
  • (b) NRC and the Licensee wish to enter into a limited licence agreement that will permit the information and technology to be used in the design of integrated circuits intended for future fabrication at NRC.

IN CONSIDERATION of the following terms, conditions, and promises, the parties agree as follows:

  • 1.0 DEFINITIONS
    For all purposes of this Agreement the following terms, in singular or plural form as appropriate to the context, are defined as follows:
  • 1.1 "Foundry" means Canadian Photonics Fabrication Centre (CPFC) which is a fabrication facility within the National Research Council of Canada and provides fabrication of photonic devices and GaN integrated circuits.
  • 1.2 "GaN Design Kit" means, jointly and severally, the GaN MMIC Design Manual and the GaN MMIC Physical Design Kit.
  • 1.3 "GaN MMIC Design Manual" means NRC inventions, software (not including general software obtained commercially by NRC, such as software to create and read PDF format files, which the Licensee may need to acquire independently to have an operable system), written works, designs, trade secrets, know-how, and technical information created by or on behalf of NRC relating to a reference text describing the performance and functional capabilities of the GaN MMIC fabrication processes of the Foundry, including description of:
    • 1) Foundry Access Procedures
    • 2) Process Description — layers description and process flow
    • 3) Wafer Acceptance — visual inspection, PCM Electrical Measurement, Wafer delivery
    • 4) Devices and Component descriptions — passive components and active components
    • 5) Maximum Ratings — in metals lines, capacitors and resistors and in GaN HFET's
    • 6) Layout Rules
    • 7) Circuit and Tile Layout
    • 8) Graphic Data Transfer — transfer protocol
  • 1.4 "GaN MMIC Physical Design Kit" means NRC inventions, software (including only computer data and computer code that is in a form for execution by a computer but excluding source code and general software obtained commercially by NRC, which the Licensee may need to acquire independently to have an operable system), trade secrets, know-how, designs, written works, and technical information created by or on behalf of NRC, existing at the time of this Agreement, further described as follows:
    • Computer Aided Design (CAD) software files of the models, and associated layouts, of components and devices offered by the Foundry;
    • Object Code, and
    • CAD software files compatible for use with design and simulation software commercially distributed by Agilent Technologies' under the product name "Advanced Design System (ADS)", v.2008, update 2.
  • 1.5 "Modify" means to adapt, alter, revise, correct, select a portion, translate into a different human or machine language, compile, or create derivative works.
  • 1.6 "MMIC" means Monolithic Microwave Integrated Circuit.
  • 1.7 "Reverse Engineer" means to decompile, disassemble, or otherwise attempt to derive the source code.
  • 1.8 "NRC Intellectual Property Rights" means copyright, integrated circuit topography rights and all other exclusionary rights, by statute or common law, in respect of the GaN Design Kit, and rights in respect of confidential information included in the GaN Design Kit or any element of the GaN Design Kit.
  • 1.9 "Object Code" means a code resulting from the translation of source code into machine language or intermediate code, and accordingly being in a form that would not be ordinarily readable by a human being but that is in a form for execution by a computer.
  • 2.0 LICENCE
  • 2.1 Limited Grant: Except as set forth herein and so long as Licensee is in compliance with this Agreement, NRC hereby grants to the Licensee a non-exclusive, non-transferable limited licence of NRC's Intellectual Property Rights:
    • to use the GaN Design Kit internally solely to design and layout integrated circuits for fabrication at the Foundry,
    To the extent that elements of the GaN Design Kit are made part of any integrated circuits developed using the GaN Design Kit, NRC further grants the Licensee a non-exclusive, non-transferable (except as permitted by Section 10.6) license to use, import, export, market, offer for sale, sell, and otherwise dispose of such elements solely as part of any such integrated circuits. There is no charge to the Licensee for the licences granted hereunder.
  • 2.2 Restrictions: Other than as expressly permitted by this Agreement, Licensee shall not, reproduce, disclose, distribute, Modify, or Reverse Engineer, the GaN Design Kit or any element of the GaN Design Kit. Fabrication of an integrated circuit designed and laid-out through use of the GaN Design Kit, or containing or based upon any portion of the GaN Design Kit may occur only at the Foundry's fabrication facilities.
  • 2.3 3rd Party Tools/Products: Certain elements of the GaN Design Kit may be provided in files/data formatted for use with or by certain third party tools/products. No licence to any third party tools/products is granted to Licensee by NRC. Licensee must ensure that it has the necessary licenses and rights to use the third party tools/products necessary to utilize the GaN Design Kit.
  • 2.4 Delivery: NRC shall make available to the Licensee one copy of each of the following:
    • (a) GaN MMIC Design Manual in PDF format;
    • (b) GaN MMIC Physical Design Kit.
    The Licensee shall be conclusively deemed to have received all necessary delivery under this paragraph if the Licensee has not notified NRC, within 60 days after the effective date of this Agreement that delivery is lacking.
  • 3.0 LIMITS OF RELATIONSHIP
  • 3.1 Foundry Services: Licensee acknowledges that (a) its receipt of the GaN Design Kit does not guarantee a business relationship with NRC for foundry services, (b) a separate agreement between NRC and Licensee must be in place to cover foundry services to be provided by NRC to the Licensee, and (c) it has entered, or shall enter, into any such separate agreement with NRC based upon its own judgment and expressly disclaims any reliance upon statements made by NRC to Licensee, if any, with regards to such separate agreement for foundry services.
  • 4.0 OWNERSHIP
  • 4.1 Ownership: Subject to the licences granted herein to the Licensee, NRC and its licensors retain all rights, title and interest in and to the GaN Design Kit, and all patent rights, copyrights, integrated circuit topography rights, trade secrets and all other proprietary rights therein, provided however, that designs and other output developed by the Licensee using the GaN Design Kit belong to the Licensee. NRC and its licensors reserve all rights not expressly granted to the Licensee hereunder. The only licenses granted hereunder are those expressly stated in this Agreement, and there are no implied licenses granted hereunder.
  • 5.0 NO SUPPORT
  • 5.1 No Support: Technical support, maintenance and assistance are not provided to Licensee by NRC under this Agreement and NRC has no obligation pursuant to this Agreement or otherwise to provide such technical assistance or maintenance to the Licensee.
  • 5.2 Corrections and Upgrades: NRC has no obligation to make any error corrections, bug fixes, updates, upgrades or new versions of the GaN Design Kit. However, if any such corrections, fixes, update, upgrades or new versions are made or developed NRC shall provide the same to the Licensee. Such corrections, fixes, updates, upgrades or new versions shall be treated as part of the GaN Design Kit under this Agreement, and Licensee's use shall be subject to the terms of this Agreement. The Licensee shall use the most recent corrections, fixes, updates, upgrades or versions of the GaN Design Kit that have been delivered to the Licensee by NRC.
  • 6.0 CONFIDENTIALITY
  • 6.1 What is Confidential: The GaN Design Kit and all of the information contained therein are confidential to NRC except for published elements and elements which NRC states in writing to be not confidential. Software source code in the GaN Design is confidential to NRC. In addition any documents of NRC marked "Confidential", "Protected", "Proprietary", or similar words, are confidential to NRC. For the purpose of this Article 6.0, the term "NRC's Confidential Information" means all or any of the foregoing.
  • 6.2 Licensee's Obligations of Confidentiality: Except to the extent expressly authorized in this Agreement, the Licensee shall protect NRC's Confidential Information with the same degree of care as it uses to protect its own confidential information, but not less than a reasonable degree of care. NRC's Confidential Information shall not be disclosed by the Licensee except:
    • (a) to directors, officers or employees of the Licensee who need to know NRC's Confidential Information in order to design and layout integrated circuits for eventual fabrication at the Foundry;
    • (b) for elements of NRC's Confidential Information which have entered the public domain without breach of this Agreement, in which case the Licensee's obligations not to disclose NRC's Confidential Information ceases only with respect to the elements of NRC's Confidential Information that have entered the public domain;
    • (c) as required to be disclosed by law provided that the Licensee first provides NRC with notice of such requirements and of its intent to disclose the information;
    • (d) as otherwise agreed to by parties.
  • 7.0 WARRANTIES, INDEMNITIES AND INSURANCE
  • 7.1 No warranty: The GaN Design Kit, including all software and models contained therein, is provided "as is", without warranties of any kind, express, implied or statutory, including without limitation any warranty of title, non-infringement, merchantability, fitness for a particular purpose, informational content, or system integration, and without any warranty that the software is free of defects, errors, or bugs, or that operation thereof will be uninterrupted, or that any result or information that is or may be derived from the use thereof will be accurate, complete, reliable and/or secure. Licensee agrees to bear the entire risk in connections with the use and distribution of the GaN Design Kit. This disclaimer of warranty constitutes an essential part of this licence. No use of the GaN Design Kit, in full or in part, is authorized hereunder except under this disclaimer.
  • 7.2 Limitation of liability and damages: In consideration of the royalty-free, no-fee, licence granted to the licensee under this agreement, licensee and NRC each acknowledges and agrees that to the maximum extent permitted by applicable law, in no event will licensee, NRC, its licensors, or its contractors be liable for any indirect, punitive, special, incidental or consequential damages in connection with or arising out of this agreement including without limitation, loss of profits, use, data or other economic advantage, however it arises and on any theory of liability, whether in an action for contract, strict liability or tort (including negligence), or otherwise, whether or not licensee, NRC and/or its licensors and/or its contractors have been advised of the possibility of such damages and notwithstanding the failure of the essential purpose of any remedy. In no event shall NRC's total liability arising out of or in connection with this agreement exceed five hundred dollars (CAN$500).
  • 7.3 Indemnity: NRC rejects all liability and responsibility relating to the consequences of using the GaN Design Kit. The Licensee shall, at its expense, indemnify and save harmless NRC, its employees, agents and licensors from and against, and be responsible for:
    • (a) all claims, demands, losses, damages, costs including solicitor and client costs, actions, suits or proceedings brought by any third party, that are in any manner based upon, arising out of, related to, occasioned by, or attributable to:
      • (i) the Licensee's use of the GaN Design Kit, or the fabrication, distribution, shipment, offering for sale, sale, or use of any integrated circuits designed using the GaN Design Kit; and
      • (ii) product liability, and
      • (iii) infringement of a third party's patent rights;
    • (b) other costs, including extra-judicial costs, of NRC defending any such action or proceeding, which NRC shall have the right to defend with counsel of its choice.
  • 8.0 DURATION AND TERMINATION
  • 8.1 Expiration: This Agreement shall become effective upon first download. Unless terminated earlier, this Agreement shall terminate two years from this original download date.
  • 8.2 Termination: This Agreement and the licenses granted to the Licensee will terminate:
    • (a) automatically and immediately if the Licensee fails to comply with Article 2 of this Agreement;
    • (b) automatically if the Licensee fails to comply with the terms of this Agreement (other than Article 2) and fails to cure such breach within thirty (30) days of receipt of written notice of the breach sent to the Licensee's address (including e-mail) set forth in Notice provisions of this Agreement;
    • (c) immediately if the GaN Design Kit becomes the subject of a claim of infringement; and
    • (d) at the option of NRC, forthwith by NRC if the Licensee becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors if such petition or proceeding is not dismissed with prejudice within sixty (60) days after filing.
  • 8.3 Survival: Termination of this Agreement for any reason shall not affect:
    • (a) the obligations accruing prior to the effective date of termination; and
    • (b) provisions which, by their nature, should remain in effect beyond the termination of this Agreement, including any obligations under Articles 1, 4, 5, 6, 7, 9, and 10;
    all of which shall survive any termination or expiration of this Agreement.
  • 8.4 Upon the effective date of termination, the Licensee shall cease all use of the GaN Design Kit and promptly return all elements of the GaN Design Kit in the Licensee's possession or under the Licensee's control, any related documentation, and copies thereof in whole or in part, together with the Licensee's written certification by a duly authorized officer, that the GaN Design Kit stored in any tangible or non-tangible form in Licensee's possession or under Licensee's control, and all related documentation and all copies thereof in whole or in part are no longer in use and have been returned to NRC or destroyed.
  • 8.5 Termination of this Agreement under this Section shall be in addition to, and not a waiver of, any remedy at law or in equity available to NRC arising from the Licensee's breach of this Agreement.
  • 9.0 LAWS AND DISPUTES
  • 9.1 Choice of Law and Venue: This Agreement shall be interpreted according to the laws of the Province of Ontario and the laws of Canada in force there. The Parties expressly exclude any conflict of laws rules or principles that might refer disputes under this Agreement to the laws of another jurisdiction. Venue for all disputes arising out of or relating to this Agreement shall lie exclusively (i) in the case of actions brought by Licensee, with the courts sitting in Ottawa, Ontario and all courts competent to hear appeals therefrom and (ii) in the case of actions brought by NRC, with the courts sitting in Massachusetts, USA and all courts competent to hear appeals therefrom. The Licensee hereby consents and waives any objection to the jurisdiction of such courts for such disputes. Despite the foregoing, if this Agreement or any aspect of it becomes a subject of judicial proceedings in the United States of America, then the Licensee irrevocably waives any and all rights it has to a trial by jury in the United States, and the Licensee agrees that the matter will be heard before a judge sitting alone, due to the nature and complexity of NRC's Intellectual Property Rights and applicable laws.
  • 10.0 GENERAL TERMS AND CONDITIONS
  • 10.1 Entire Agreement: This Agreement represents the entire understanding between the parties as of the effective date hereof, and supersedes all prior communications, negotiations and agreements, written or oral, concerning the GaN Design Kit. Nothing in this Agreement shall limit the commitments of the parties pursuant to any separate agreement providing for the use of the Foundry to fabricate integrated circuits for Licensee.
  • 10.2 Limits of Agreement: For greater certainty, the parties agree that this is not an assignment of ownership of copyright or of patent rights, but merely a licence. This Agreement shall not be construed as creating the relationship of principal and agent, employer and employee, partnership, or joint venture.
  • 10.3 Amendments: This Agreement may only be amended by an agreement in writing, signed by the parties, expressly referring to this Agreement.
  • 10.4 Severance: If any provision in this Agreement is found, by a court or arbitration, to be wholly or partly invalid, illegal or unenforceable in any respect, the remainder of this Agreement shall remain enforceable and this Agreement shall be construed as if that provision had never existed. The request to initial each page is not a condition of this Agreement.
  • 10.5 Waiver: Failure by a party to assert rights arising from any default under this Agreement does not constitute a waiver. No waiver shall be effective unless in writing and no written waiver shall operate as a waiver of any subsequent default.
  • 10.6 Assignment: This Agreement is personal to the parties. The Licensee may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without NRC's consent; provided that, Licensee may assign this Agreement, without consent, to an acquirer or successor of Licensee in connection with a merger, reorganization, consolidation or sale of all or substantially all stock or all assets related to this Agreement.
  • 10.7 Force Majeure: Neither party shall be responsible or liable to the other for failure or delay the performance of this Agreement due to war, fire, accident or other casualty, labour disturbance, act of the public enemy, act of God, or any other contingency beyond that party's reasonable control. In the event of applicability of this paragraph, the party affected by such force majeure shall use its best efforts to eliminate, cure or overcome any such causes and resume performance of its obligations as soon as possible.
  • 10.8 Notices: Any notice contemplated by this Agreement, unless a different address is subsequently notified by one Party to the other in writing, must be sent to the address stated at the beginning of this Agreement where the Parties are identified, by:
    • (a) registered mail, and then it is deemed to be an effective notice five (5) days after it is sent;
    • (b) courier, and then it is an effective notice only when acknowledged by an official receipt; or
    • (c) by personal delivery to the office of the chief executive officer of the Party, and then it is an effective notice when acknowledged by a signature of either that person or a person with apparent authority to receive messages.

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