EXHIBIT 10.11
Confidential Treatment Requested.
Confidential Portion Has Been Filed
Separately With The Securities and
Exchange Commission.
COOPERATIVE DEVELOPMENT AGREEMENT FOR A
LANE DEPARTURE DETECTION AND
WARNING SYSTEM
between
Odetics, Inc.
Intelligent Transportation Systems
0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
XXX
- hereinafter called "Odetics"
and
Daimler-Benz Aktlengesellschaft
D210
70546 Stuttgart
Germany
- hereinafter called "Daimler-Benz"
Preamble
Odetics and Daimler-Benz ("Party" or "Parties") are currently developing
products for the purpose of providing lane departure detection and [*] by means
of image processing. Odetics is developing and producing a vision sensor product
to detect changes in images from road scenes (lane markings), to host Daimler-
Benz software, and to control vehicle warning devices based upon outputs from
the software. Daimler-Benz (through Daimler-Benz Research) is developing a
software product for processing image information from the sensor and other
inputs to determine driver conditions and provide outputs for use in operating
vehicle warning devices. Odetics and Daimler-Benz desire to integrate these
products in such a manner as to produce a single product that detects a
potentially threatening lane departure of a vehicle at an early stage and
provides a warning to the vehicle driver. The initial production version of the
System will exclude the [*] function which will be included in later production
versions as a product change or modification. Odetics and Daimler-Benz also
desire that the System be cost-oriented and suitable for use in vehicles, and
that such a System be manufactured and sold by Odetics for use in vehicles
manufactured by Daimler-Benz, or its affiliates, and after a period of
exclusivity for sale in vehicles manufactured by other Odetics Customers.
Therefore, the Parties agree as follows:
_________________
[*] Confidential Treatment Requested for Redacted Portion
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Article 1
Subject of Agreement
1.1 The subject of this Agreement is the joint development of a Lane Departure
Detection and Warning System.
1.2 The design and development target for the System is described in the System
Requirements Document attached to this Agreement as Annex 1; the
interfaces between Odetics Operating System Software and Daimler-Benz
Application Software are described in the Software Interface Control
Document attached as Annex 2; the System cost targets including tooling and
sample cost targets are described in the System Cost Goals Document
attached as Annex 3; and the target development schedule is described in
the System Schedule attached as Annex 4. These documents may only be
changed by mutual agreement. A proposed change to any of these documents
proposed by one Party must identify the impact (if any) to each of the
other three documents and shall be submitted to the other Party for written
concurrence. The current version of each of these documents, as evidenced
by the authorized signature of each Party shall be the valid one in each
case.
Article 2
Definitions
2.1 "Product", "Lane Tracking System", "Lane Departure Detection and Warning
System", or "System" are equivalent names for the System specified in Annex
1 of this Agreement. It is comprised of the physical assembly that includes
the vision sensor, the imbedded Application Software and Operating System
Software, the electronic module that provides the host processor and
internal electronic circuits/devices that receive inputs and provide
outputs, and the external interface connector with harness tail. It does
not include external detectors providing vehicle inputs such as steering
wheel angle or motion detectors.
2.2 "Application Software" shall mean software which operates in the selected
host operating system environment that implements algorithms to determine
lane departure and/or [*] conditions from vision sensor and other inputs
and that provides warning outputs based upon these determined conditions,
developed by Daimler-Benz prior to and during this Agreement and modified
for use in the System under this Agreement.
2.3 "Operating System Software" shall mean software developed and provided by
Odetics that operates the System processor and that hosts the Application
Software.
_________________
[*] Confidential Treatment Requested for Redacted Portion
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2.4 "Background Technology" shall mean drawings, data, know-how, inventions,
software, and other technical information owned or possessed by a Party
prior to the start of cooperation between the parties in December 1995. In
the case of Odetics, Background Technology shall include, but not be
limited to Odetics' vision sensor product to detect changes in images of
highway lane markings, process detected images, and provide outputs to
vehicle warning devices.
2.5 "Foreground Technology" shall means all drawings, data, know-how,
inventions, software and other technical information developed subsequent
to the start of cooperation between the parties in December 1995.
2.6 "Developed" shall mean developed, invented, authored, or created.
2.7 "Predecessor" as used in relation to Odetics in this agreement shall refer
to the prior owner of Odetics' Background Technology, Rockwell
International Corporation, and/or its business segments.
Article 3
Performance of Work
3.1 The Parties shall carry out the development work in close collaboration
with each other.
3.2 The responsibilities of the Parties for development work in accordance with
Annex 1 through 4 shall be as follows:
a. Joint
(1) Finalize concept
(2) Determine final System level requirements and interfaces;
document in systems requirements and interface documents
b. Odetics
(1) Develop hardware to host the Operating System Software and
Application Software and to interface with the Mercedes vehicle
(2) Select and provide Operating System Software
(3) Module qualification
(4) Provide support to Daimler-Benz:
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(a) For Application Software, provide Operating System
Software interface and integration support
(b) For System level integration and test, vehicle
qualification, and field testing, provide technical
support
c. Daimler-Benz
(1) Develop and provide an algorithm for determining [*] and lane
departure warning from sensor and other inputs and for providing
warning outputs. Provide to Odetics the source code,
documentation, and object code of Application Software
incorporating algorithm.
(2) Provide integration and test of System in Mercedes-Benz motor
vehicles
(3) Vehicle qualification in Mercedes-Benz vehicles
(4) Field testing in Mercedes-Benz vehicles
(5) Provide support to Odetics:
(a) For Operating System Software, provide software
interface requirements and Application Software
integration support
3.3 The development results which have to be generated by Odetics shall be
presented at the premises of Daimler-Benz in Stuttgart/Germany.
3.4 The Parties shall exchange any information and provide any technical
support required by the other Party to carry out the work. In addition, the
Parties shall keep each other mutually informed with regard to the results
of development carried out.
3.5 The contact persons are:
Odetics
Project/Technical Xxxxxxx X. Xxxxxx, Product Manager, Vision Products
Intelligent Transportation Systems
0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Telephone (000) 000-0000
Facsimile (000) 000-0000
_________________
[*] Confidential Treatment Requested for Redacted Portion
4
Contract Xxx Xxxxxxx, Principal Contracts Administrator
Intelligent Transportation Systems
0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Telephone (000) 000-0000
Facsimile (000) 000-0000
Daimler-Benz
Project/Technical Xxxxx Xxxxxx
X000
X-00000 Xxxxxxxxx
Xxxxxxx
Telephone 00-000-00-00000
Facsimile 49-711-17-34081
Xxxxxxxx Xxxxx Xxxx
X000
X-00000 Xxxxxxxxx
Xxxxxxx
Telephone 00-000-00-00000
Facsimile 49-711-17-34081
Purchasing Xxxxxx Xxxxxx
XXX 00
X-00000 Xxxxx
Xxxxxxx
Telephone 00-0000-00-0000
Telefax 49-7271-71-4984
Article 4
Dates
The dates agreed for the performance of development work, including the
completion date and the deadlines for the individual development stages
(milestones), are attached to this Agreement as Annex 4. This schedule shall be
updated by the Parties by mutual agreement in accordance with the procedure in
Article 1.
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Article 5
Responsibility for Costs
5.1 Except as specified in Articles 5.2 and 5.3, each Party shall bear all the
costs and expenses that it incurs in connection with responsibilities
listed in Article 3.2 above. Neither Party shall be liable for these costs
incurred by the other.
5.2 Odetics Costs Payable by Daimler-Benz
a. Odetics and Daimler-Benz shall enter into separate contractual
agreements or purchase orders for procurement of the following items
by Daimler-Benz from Odetics in accordance with the mutually agreed
prices, schedule, terms and conditions stated in the separate
agreements or purchase orders. Target prices for these items shall be
as identified in Annex 3, System Cost Goals Document.
(1) System(s) to be used for vehicle qualification
(2) Hardware and software tooling for prototype systems development
to be used for vehicle qualification and field testing
(3) Support equipment required for integration and field testing
(4) Tooling for initial production quantities for each Mercedes
vehicle platform
b. Both, Odetics and Daimler-Benz pay for their own design costs (Letter
of Intend from 31.01.1996).
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5.3 Daimler-Benz Costs Payable by Odetics
Odetics will provide up to 20 C-samples for the purpose of Daimler-Benz
customer field testing. (Exact quantity of C-samples to be provided by
Odetics for this purpose is to be mutually agreed prior to assembly and
delivery.)
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Article 6
Relationship Between Parties
Except as otherwise provided in this Agreement and to the maximum extent
permitted by law, Odetics and Daimler-Benz agree to work exclusively with each
other for the specific tasks necessary to develop the System in accordance with
Annexes 1 through 4, to encourage the open exchange and protection of commercial
and proprietary technical information, and to avoid diluting either Party's
capabilities and efforts.
Nothing herein shall be deemed to restrict either Party from offering to sell or
selling to any other party any of its standard products or services, even though
such items or services may be contemplated by this Agreement.
This Agreement shall relate only. to activity performed in connection with the
System and to no other effort undertaken by the Parties jointly or separately.
It shall not constitute, create, give effect to or otherwise be construed as
a joint venture, pooling arrangement, partnership or formal business
organization of any kind. The Parties shall be deemed to be independent
contractors and the employees of one shall not be deemed to be employees or
agents of the other. Nothing in this Agreement shall be construed as providing
for the sharing of profits or losses arising out of the efforts of either or
both of the Parties.
Article 7
Secrecy
7.1 During the term of this Agreement and after its termination, the Parties
shall not utilize or disclose to third parties any business or industrial
secrets of the other Party which were confided to them or of which they
gained knowledge on occasion of the cooperation.
7.2 Any technical information, in particular intentions, experience, findings
or designs to which the Parties gain access or which they receive within
the framework of the cooperation under this Agreement, shall be used within
the framework of the cooperation only, and shall be treated as confidential
and shall not be disclosed to third parties for a period of three years
after the termination of this Agreement. The rights of the Parties
contained in the provisions of Art. 8 are not affected hereby. Affiliated
companies of DB as well as companies reproducing products of DB with its
consent are not considered to be third parties provided that such companies
will enter into similar confidentiality obligations.
7.3 The secrecy obligation does not apply to information which can be proved
a) to have been know to the receiving Party prior to the cooperation
under this Agreement,
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b) to have been handed over to the receiving Party legitimately by third
parties,
c) to have already been publicly known when the cooperation under this
Agreement was started or to have become publicly known subsequently
without any violation of the obligations under this Agreement,
d) by the receiving Party to have been developed independently of
confidential information received from the other Party.
7.4 The Parties shall impose the same obligations on their employees or any
eventual subcontractors who obtain knowledge of confidential information as
far as legally possible even for the time after the termination of
employment.
Article 8
Results of R & D Work, Intellectual Property Rights
The following provisions shall apply to the rights and obligations of the
Parties with respect to the results of the development work:
8.1 Know-how
--------
(1) Know-how acquired during the development work by one or both Parties
is available to both Parties free of charge for all purposes, even for
purposes outside the scope of this Contract.
(2) Know-how which one of the Parties has acquired outside this
cooperation shall be available to the other Party free of charge if
the know-how is utilized in the results of the development work and if
the know-how is required to utilize the results of the development
work.
8.2 Inventions
----------
(1) If inventions made in the course of the development work under this
Agreement can give rise to patents, then that Party whose employees
produced the invention is the owner and is entitled to register the
patent. The Parties to the Contract shall inform each other of patent
applications which are submitted.
(2) If employees of both Parties jointly make inventions resulting from
the development work under this Agreement, then the Parties are joint
owners, and it shall be separately agreed on a case by case basis by
which of them and where any patent applications shall be made, who
shall bear the costs of them and who has which rights. Unless
otherwise agreed, any license to third parties is granted jointly; the
Parties shall agree on the joint licensing case by case.
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In the case of joint inventions or joint proprietary rights, each
Party is entitled at any time to relinquish its notional share thereof
in favor of the other Party. Rights of use, especially rights of use
already accrued to it, shall however be retained by the relinquishing
Party. The relinquishing Party shall take all timely precautions and
measures to enable the other Party to protect its interests.
(3) Each Party shall grant to the other Party unlimited, non-exclusive
rights to use its inventions and proprietary rights resulting from the
development work under this Agreement
- free of charge in the area of the System,
- against reasonable conditions in other cases.
Furthermore, each Party receives rights of use against reasonable
conditions, to inventions or proprietary rights of the other Party
which have arisen outside the scope of this Agreement and are
necessary for the exploitation of the results of the development work.
8.3 Copyrights
----------
The provisions contained in Art. 8.2 apply mutatis mutandis to results
protected by copyright (e.g. software).
8.4 If DB is granted rights of use under Art. 8, such rights shall include
(only for use in vehicles manufactured by Daimler-Benz or its
affiliates)the utilization by affiliated companies of DB as well as
those companies which manufacture products of DB with its consent.
8.5 In the case of any license fees to be paid under Art. 8, the Parties
shall accordingly take into account the contribution made to the
development by the Party who is licensee.
Article 9
Deliveries
9.1 If Daimler-Benz decides by July 31, 1998 to use the system as a optional
equipment on Actros series production trucks, Odetics undertakes until July
1, 2000 to not supply without prior approval from Daimler-Benz to any third
party any product for installation in series production which contains
wholly or in part any results of the development work carried out under
this Agreement. Odetics shall have the right to work with third parties
including OEMs other than Daimler-Benz or its affiliates to develop or test
(before July
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1, 2000) or produce (after July 1, 2000) systems incorporating the results
of the development work (including the Application Software) for sale and
delivery in series production to these third parties.
9.2 Daimler-Benz undertakes to procure its total demand of the System from
Odetics within the period of time stipulated under 9.1, provided that
Odetics is able to supply at competitive conditions in respect of quality,
price and delivery dates. With respect to such conditions reference is made
to Annex 3.
9.3 If the procurement obligation laid down in 9.2 ceases to apply, Odetics
shall enable Daimler-Benz to procure the system from third parties, as far
as Odetics is legally able to do so.
9.4 Odetics shall pay Daimler-Benz a royalty for use of the Daimler-Benz
Application Software in the amount of three percent (3%) of the net sales
price for each System, or portion thereof, sold to a third party for the
purpose of sale in vehicles of OEMs other than Daimler-Benz or its
affiliates in the period between July 1, 1999 and July 1, 2002. Thereafter,
sales of Systems to third parties shall be royalty-free. Net sales price
will not include shipping costs, sales and excise taxes, export duties or
fees, sales commissions, or the cost of parts purchased from Odetics. Such
royalties will be payable semi-annually on or before thirty (30) days after
June 30 and December 31.
Article 10
Liability
10.1 The Parties to this Agreement shall be liable vis-a-vis each other only in
case of intent and gross negligence. Any liability for indirect or
consequential damages shall be excluded.
10.2 The liability limitations contained in Art. 10.1 do not apply in case
of violation of major contractual obligations.
Article 11
Term of Agreement
11.1 This Agreement shall come into effect on December 1, 1995, and remains in
force until terminated upon the earliest of the conditions of termination
listed in Article 11.2. The provisions contained in Articles 6, 7, 8 and 9
remain in effect even after the termination of this Agreement.
11.2 Conditions of Termination
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a. Completion of work in accordance with the schedule provided as Annex 4
as amended by mutual agreement;
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b. Mutual agreement of the Parties;
c. Upon ninety (90) days written notice by either Party to the other
of its intent to terminate for its convenience provided over such 90
day period that the terminating Party continues performance in
compliance with this Agreement and further provided at the end of such
90 day period the terminating Party grants to the other Party, free
of charge or royalty, full and unfettered rights to all intellectual
property addressed in Article 8 whether independently or jointly
developed as part of this Agreement or developed outside this
Agreement but necessary for exploitation of the results of this
development work;
d. Upon the inability of the Parties, negotiating in good faith and
within a reasonable time period, to agree upon changes to Annex 1,
System Requirements Document, Annex 2, System Interface Document,
Annex 3, System Cost Goals Document, or Annex 4, Schedule. If
agreement has not been reached within ninety (90) days from the
initiation of negotiations or such additional time as may be mutually
agreed upon, it will be deemed that the Parties were unable in good
faith to reach agreement; or,
e. Upon notice in writing by one Party to the other if:
(1) the other Party fails to perform or observe any term of this
Agreement and, in the case of a remedial breach, fails to remedy
such breach within fifteen (15) days of receipt of notification
requiring it to do so;
(2) the other Party ceases to carry on its business for more than 30
consecutive days (other than during annual holidays); or
(3) any action, application or proceeding is taken in respect to the
other Party for (a) a voluntary arrangement or composition or
reconstruction of its debts; (b) the presentation of an
administrative petition; (c) its winding up or dissolution; (d)
the appointment of a liquidator, trustee, receiver,
administrative receiver or similar officer; (e) a petition for a
bankruptcy order or an application for a voluntary arrangement;
or (1) any similar action, application or proceeding in any
jurisdiction to which it is subject.
Article 12
Miscellaneous Provisions
12.1 This Agreement shall not be amended or modified, nor shall any waiver of
any right hereunder be effective unless set forth in a document executed by
duly authorized representatives of both Parties. The failure of a Party to
insist on strict performance of
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any term, covenant or condition herein contained shall not be deemed to be
a waiver of such term, covenant or condition or of any subsequent breach
of the same.
12.2 Should any one or several of the provisions of this Agreement be or become
invalid, illegal, unenforceable, or in conflict with any law this shall not
affect the validity of the other provisions. The Parties agree to replace
the legally invalid provision, if possible, by an effective provision whose
economic effect is as similar as possible to the original provision, and
the Parties agree that this new provision shall be deemed to have been
agreed upon from the time when the original provision became invalid.
12.3 This Agreement shall be interpreted and enforced in accordance with the
laws of the country of Germany, but specifically excluding the provisions
of the 1980 U.N. Convention on Contracts for the International Sale of
Goods. Each Party's obligations hereunder shall be subject to the export
control regulations of the United States and Germany and each Party agrees
not export any item resulting from this Agreement for ultimate delivery to
those areas to which delivery would be forbidden if directly exported from
the United States and/or Germany.
12.4 This Agreement is based on mutual trust and confidence. The Parties to this
agreement shall try to settle any disputes amicably through their
management representatives. The managers of the signatory Parties to the
Agreement shall first meet in person and make a good faith attempt to
resolve any such dispute. If after such good faith attempt, the managers
cannot otherwise settle or resolve the claim or controversy, the senior
management representatives of each Party shall meet in person and make a
good faith attempt to resolve or settle the matter.
In the event that the dispute cannot otherwise be settled by the managers
or senior management of the Parties good faith attempt, the Parties agree
to submit the dispute for resolution by independent binding arbitration.
The arbitration shall take place in Stuttgart, Germany in accordance with
the arbitration rules of the International Chamber of Commerce. All
information relating to or disclosed by any Party in connection with the
arbitration of any dispute relating to this Agreement shall be treated by
the Parties and the arbitration panel as Confidential.
12.5 Neither this Agreement nor any interest herein may be assigned, in whole or
in part, by either Party hereto without the prior written consent of the
other Party hereto, except that without securing such prior consent, either
Party hereto shall have the right to assign this Agreement to any successor
or to such Party by way of merger or consolidation or the acquisition
of substantially all of the business and assets of such Party relating to
the subject matter of this Agreement, provided that such successor shall
expressly assume all of the obligations and liabilities of such Party under
this Agreement, and provided further, that such Party shall remain liable
and responsible to the other Party hereto for the performance and
observance of all such obligations.
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12.6 Any news release, public announcement, advertisement or publicity proposed
to be released by either Party concerning the activities of the other Party
in connection with this Agreement shall be subject to the approval of the
other Party prior to release.
12.7 This Agreement, including Annexes 1 through 4, constitutes the entire
understanding and agreement of and between the Parties with respect to the
subject matter hereof and supersedes all prior representations and
agreements. It shall not be varied by any oral agreements or
representations or otherwise except by an instrument in writing of
subsequent date hereto duly executed by authorized representatives of the
Parties. The section and paragraph headings herein are for convenience only
and shall not limit in any way the scope of any provision of this
Agreement
IN WITNESS, WHEREOF, the Parties hereto have executed this Agreement in
duplicate as of the date herein above indicated.
Daimler-Benz Aktlengesellschaft Odetics, Inc.
By: /s/ Xxxxxxx By: /s/ Xxxx Xxxxxxx
-------------------------- --------------------------
Name: Xxxxxxx Name: Xxxx Xxxxxxx
-------------------------- --------------------------
Title: Direktor Entwicklung Title: President, ITS Division
-------------------------- --------------------------
Date: 22.07.1998 Date: June 1, 1998
-------------------------- --------------------------
By: /s/ Xxxxx
--------------------------
Name: Xxxxx
--------------------------
Title: Direktor Einkauf
--------------------------
Date: 22.07.1998
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