Exhibit 10.20
LICENSE AND DEVELOPMENT AGREEMENT
This Software License and Development Agreement (the "Agreement") is
entered into as of this ____ day of December, 1999 (the "Effective Date") by and
between Philips Semiconductors Inc., a Delaware corporation having its principal
place of business at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000,
(hereinafter "PHILIPS"), and Phasecom Ltd., an Israeli corporation, having its
principal place of business at 00 Xxxxxx Xxxxxx Xxxxxx, Xxxx. 0, 0xx Xxxxx, Xxx
Hotzvim 91450, Jerusalem, ISRAEL ("PCOM"), a wholly owned subsidiary of Phasecom
Inc., a Delaware corporation, with its principle place of business at 00000
Xxxxxxx Xxxxx Xxxx., 0xx Xxxxx, Xxxxxxxxx, XX 00000 ("PHASECOM INC"). (PHILIPS,
PCOM and PHASECOM INC. are occasionally referred to herein individually as a
"Party" and collectively as the "Parties.")
WHEREAS, PCOM has developed a DOCSIS MAC including both hardware and
software (as defined below) that is compliant to the version 1.0 MAC standard;
WHEREAS, PCOM is developing a DOSIS MAC including both hardware and
software that will be compliant to the versions 1.1 MAC standard;
WHEREAS, PHILIPS desires to license such a DOSIS MAC including both
hardware and software from PCOM under the terms and conditions of this Agreement
for use as part of its integrated circuit products;
WHEREAS, PCOM desires to provide and license to PHILIPS such DOCSIS MAC
under the terms and conditions of this Agreement;
WHEREFORE, in consideration of the mutual promises hereinafter set
forth, PHILIPS and PCOM and PHASECOM INC. agree as follows:
1.0 DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have the stated
meanings:
1.1 "Affiliates" of a Party means any corporation, company or other entity
which directly or indirectly controls, is controlled by, or is under
common control with such Party. An entity shall be regarded as in
control of another so long as it owns or controls, directly or
indirectly, more than fifty percent (50%) of the shares entitled to
vote for the election of directors or other person performing similar
functions.
.
1.2 "Application Specific Product" means products whose architecture are
optimized for use in particular applications and whose components may include
both hardware and software.
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1.3 "Customer Specific Product " means products made for a specific
customer or set of customers which may include both hardware and
software and intellectual property from various sources.
1.4 "Derivative Works" means a work based on one or more preexisting works,
such as a translation, arrangement, abridgement, condensation,
expansion, compilation, revision, or any other form in which a work may
be recast, transformed, or adapted, and as further defined by 17 U.S.C.
Sec. 101.
1.5 "DOCSIS MAC" means the Media Access Controller, whose specification is
defined under the DOCSIS standards committee including both hardware
and software, that is provided by PCOM to PHILIPS under this Agreement,
as further defined in Exhibit A and the Statement of Work herein. The
term DOCSIS MAC shall include the PCOM DOCSIS 1.0 MAC, the PCOM DOCSIS
1.1 MAC and, subject to the provisions of Article 4 herein, the PCOM
DOCSIS 1.2 MAC that are provided by PCOM to PHILIPS under this
Agreement.
1.6 "DOCSIS 1.0 MAC" means Media Access Controller whose specifications are
defined under the DOCSIS standards committee for the 1.0 MAC standard.
1.7 "DOCSIS 1.1 MAC" means Media Access Controller whose specifications are
defined under the DOCSIS standards committee for the 1.1 MAC standard.
1.8 "DOCSIS 1.2 MAC" means Media Access Controller whose specifications are
defined under the DOCSIS standards committee for the 1.2 MAC standard.
1.9 "Documentation" means User Documentation and Source Documentation.
"User Documentation" means user manuals and other written works that
are designed to explain for the end user the installation and use of
particular object code. "Source Documentation" means source code
comments and other works describing the internal structure and
operation of particular source code, including, but not limited to all
related specifications, schematics, logic manuals, flow charts, and
principals of operation, related build procedures, test harnesses, test
procedures, bug data base and design documentation, as available.
Documentation may be in tangible form or machine-readable text or
graphic files subject to display or printout.
1.10 "Licensed Rights" means any patents, copyrights, maskwork rights,
know-how and trade secrets or other legally protectable information
which read upon, are embodied in, or otherwise apply to the DOCSIS MAC.
1.11 "PCOM DOCSIS 1.0 MAC" means the DOCSIS 1.0 MAC that is provided by PCOM
to PHILIPS under this Agreement.
1.12 "PCOM DOCSIS 1.1 MAC" means the DOCSIS 1.1 MAC that is provided by PCOM
to PHILIPS under this Agreement.
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1.13 "Product" or "Products" means any integrated circuit product made by or
for PHILIPS and/or its Affiliates, including but not limited to DOCSIS
Customer Specific Products or Application Specific Products for cable
modem and cable set top box applications, provided however the terms
Product and Products shall not include any integrated circuit product
that uses the DOCSIS MAC for a Wireless Communications Application.
1.14 "Source Code" means all source files for both the generation of a
hardware block and for the generation of software used to run the
hardware block.
1.15 "Wireless Communications Application" means an application whose
primary data transfer is accomplished by using "Wireless" medium,
provided, however, the term Wireless Communications Application shall
not include any wireless applications where the primary communications
gateway is provided via cable. By way of example, the term "Wireless
Communication Application" shall not include applications where data is
distributed by wireless means in a local environment after transfer
across a cable.
2.0 DOCSIS MAC DELIVERY.
2.1 Upon the signing of this Agreement PCOM shall deliver to PHILIPS the
PCOM DOCSIS 1.0 MAC Deliverables, as set forth in Exhibit A.
2.2 PCOM agrees to deliver to PHILIPS the PCOM DOCSIS 1.1 MAC Deliverables
in accordance with the Specifications and schedule set forth in Exhibit
B.
3.0 ACCEPTANCE OF DELIVERABLES.
Acceptance of deliverables shall be defined as follows:
3.1 PHILIPS will examine and test each Deliverable upon delivery to
determine whether the Deliverable conforms to the Specifications for
such Deliverable. Within ten (10) business days after such delivery,
PHILIPS shall provide PCOM with written acceptance of such Deliverable
or a written statement of Errors. As used herein, "Errors" means: (i)
defects in the Deliverable which cause it not to operate in conformance
with the Specification: (ii) defects in the documentation which render
it inaccurate, erroneous, or otherwise unreadable; or (iii) any aspect
of any Deliverable which fails to conform to the Specification.
3.2 PCOM shall make all reasonable efforts to promptly correct the Errors
in any Deliverable set forth in the Statement of Errors, and redeliver
the Deliverable to PHILIPS within the specified time, which will be
mutually agreed to by the parties, provided that the dates specified
for items 1 and 6 in the chart under Section 5.2.1 are not exceeded.
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3.3 PHILIPS will within [***] after such redelivery provide PCOM with a
written acceptance or another Statement of Errors. This procedure
set forth in Sections 3.1 through 3.3 will be repeated until PHILIPS
accepts the deliverables or terminates pursuant to Section 3.4
herein.
3.4 Should PHILIPS determine, prior to acceptance, that any Deliverable
fails to meet the Specification, either (i) after the second redelivery
of that Deliverable pursuant to 3.1.2, or (ii) after any delivery or
redelivery which is late, PCOM will be deemed to be in material breach
and PHILIPS may reject that Deliverable and any subsequent Deliverables
and/or the Agreement.
3.5 If PHILIPS fails to provide PCOM with a written statement of Errors
within the applicable [***], PHILIPS shall be deemed to have
accepted the subject Deliverable.
[***] Denotes language for which Vyyo has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as
amended.
4.0 LICENSES
4.1 LICENSE FOR DOCSIS 1.0 MAC.
4.1.1 GRANT OF LICENSE. Subject to the terms and conditions of this
Agreement, PCOM grants to PHILIPS and its Affiliates a
non-exclusive, royalty-free, worldwide, perpetual, non-transferable
(except to PHILIPS' Affiliates) right and license, under the License
Rights, to use, make, have made, reproduce, have reproduced,
perform, modify, and prepare Derivative Works of, the PCOM DOCSIS
1.0 MAC, and the Derivative Works thereof, to design, develop, make,
have made Products incorporating or using the PCOM DOSIS 1.0 MAC
and/or Derivative Works thereof by or for PHILIPS and/or its
Affiliates, and to use, distribute, import, offer to sell, and sell
such Products, worldwide.
4.1.2 MODIFICATIONS. PHILIPS' right to modify pursuant to this Section 4.1.l
above, gives PHILIPS the unlimited right to modify or create Derivative
Works of the PCOM DOCSIS 1.0 MAC, including but not limited to
developing a DOCSIS 1.1 and/or DOCSIS 1.2 versions of DOCSIS MAC, for
incorporation or use in Products made by or for PHILIPS and/or its
Affiliates, as granted therein.
4.2 LICENSE FOR DOCSIS 1.1 MAC.
4.2.1 GRANT OF LICENSE. Subject to the terms and conditions of this
Agreement, PCOM grants to PHILIPS and its Affiliates a
non-exclusive, royalty bearing (subject to Sections 5.3 and 5.5),
worldwide, perpetual, non-transferable (except to PHILIPS'
Affiliates) right and license under the License Rights to use, make,
have made, reproduce, have reproduced, perform, modify, and prepare
Derivative Works of, the PCOM DOCSIS 1.1 MAC, and the Derivative
Works thereof, to design, develop, make, have made Products
incorporating or using the PCOM DOSIS 1.1 MAC and/or Derivative
Works thereof by
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or for PHILIPS and/or its Affiliates, and to use, distribute, import,
offer to sell, and sell such Products, worldwide.
4.2.2 MODIFICATIONS. PHILIPS' right to modify pursuant to this Section 4.2.l
above, gives PHILIPS the unlimited right to modify or create Derivative
Works of the PCOM DOCSIS 1.1 MAC, including but not limited to
developing a DOCSIS 1.2 versions of DOCSIS MAC, for incorporation or
use in Products made by or for PHILIPS and/or its Affiliates, as
granted therein.
[***] Denotes language for which Vyyo has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as
amended.
5.0 LICENSE FEES
5.1.1 License Fee for the PCOM DOCSIS 1.0 MAC
5.1.2 PHILIPS shall pay PCOM a [***]for the licensing of the PCOM DOCSIS
1.0 MAC.
5.2 License Fee for the PCOM DOCSIS 1.1 MAC.
5.2.1 PHILIPS will pay PCOM [***] for the licensing of the PCOM DOCSIS 1.1
MAC (subject to Section 5.2.2), payable in accordance with the
milestones in the following chart. The Deliverables are described
below for each milestone. The percentage figures listed in the chart
represents the percentage of the total fee of [***] that is to be
paid upon PHILIPS' acceptance of the respective Deliverable for the
milestone.
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Item Date Deliverables and Milestones for delivery and acceptance
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1 [***] [***] PS 1.1 MAC/Ethernet VHDL &Simulation Database
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2 [***] PS 1.1 MAC/Ethernet Synthesis for P&R and QT
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3 [***] FPGA Verified MAC/Ethernet w/3930
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4 [***] [***] QT Verification
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5 [***] Post P&R Timing Verification
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6 [***] [***] Full SW
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7 [***] Si Validation
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8 [***] [***] Cable Labs Certification (1.0 or 1.1)
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[***] Denotes language for which Vyyo has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as
amended.
5.2.2 With respect to each Deliverable set forth in Section 5.2.1, the
license granted for the PCOM DOCSIS 1.1 MAC under Section 4.2 shall
apply upon payment for that Deliverable. In the event PCOM fails to
deliver the PCOM DOCSIS 1.1 MAC deliverable for any milestone as set
forth in Section 5.2.1 and 5.6, PHILIPS shall not be required to pay
for any of the following deliverables and shall have full license
rights with respect to all PCOM DOCSIS 1.1 MAC Deliverables delivered
to PHILIPS,
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provided that PHILIPS has paid the respective milestone fees for such
Deliverables as set forth in Section 5.2.1, items 1-9..
5.2.3 The total fee associated with this Article 5 shall be $1,200,000,
to be paid out in accordance with Section 5.1 for the PCOM DOCSIS
1.0 MAC (for the amount of [***], and Section 5.2 for the PCOM
DOCSIS 1.1 MAC, in accordance with items 1 through 9 of the
milestones for delivery and acceptance matrix (for the amount of
[***], referenced therein.
5.3 Upon full production of a Product that incorporates the DOCSIS MAC
provided by PCOM herein, PHILIPS Semiconductors shall pay to PCOM a
royalty fee of [***] device for each unit sold (excluding any units
sold to PCOM), up to a limitation cap of [***], subject to Section
5.6 (the "Maximum Royalty Amount"). Philips shall not pay any
royalties on any Products sold to PCOM. The Maximum Royalty Amount
is the maximum amount of royalties to be paid under this Agreement,
which shall be [***], unless Section 5.6 applies, in which case the
Maximum Royalty Amount shall be [***]. At the time that the total,
combined royalties paid under this Agreement reaches the Maximum
Royalty Amount, PHILIPS shall have no further obligation or
liability to pay any further royalties on any Products that
incorporate the DOCSIS MAC, and all liability for such royalties
shall cease and the licenses granted under this Agreement shall
remain and continue in effect as royalty-free, fully paid-up
licenses. Should the Maximum Royalty Amount not be reached by
December 31, 2001, PHILIPS Semiconductors shall then pay PCOM the
difference between the sum of all royalties then paid to date and
the applicable Maximum Royalty Amount ([***], or [***] if Section
5.6 applies), and the Maximum Royalty Amount shall be deemed to
have been reached and paid in full. This final payment shall be
made to PCOM in one lump sum payment, due and payable by PHILIPS
net 30 days thereafter.
[***] Denotes language for which Vyyo has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as
amended.
5.4 The royalties due under Section 5.3 shall be paid on a [***].
Within [***] after the end of each calendar quarter, PHILIPS shall
deliver to PCOM a royalty statement showing (i) the net number of
units sold during that calendar quarter that are subject to royalty
payment and (ii) the total amount of royalty payments due for that
quarter, along with the payment for the total amount of royalties
due for that calendar quarter. The net number of units sold means
the total number of units sold less any returns.
5.5 For [***] after the end of the relevant reporting period, PHILIPS
shall keep accurate records containing all the data reasonably
required for the computation and verification of the amounts to be
paid for such period and information to be given in the quarterly
statements under Section 5.4. PHILIPS shall, during usual business
hours, permit a national independent certified public accounting
firm selected by PCOM, not more frequently than once per year, at
PCOM's expense and prior arrangement, to inspect the same for the
sole purpose of determining the royalty amounts payable pursuant to
Section 5.3. All such audits shall be conducted following
reasonable prior
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written notice and the auditors shall comply with PHILIPS' normal
safety and security procedures, and shall agree in writing to treat
all information furnished by PHILIPS in the course of such audit as
PHILIPS' Confidential Information. Such auditors shall disclose to
PCOM only the amount of any discrepancy and the basis thereof. In
the event of any underpayment, PHILIPS shall promptly remit to PCOM
all amounts due. In the event that the underpayment is more than
[***] for the period audited, PHILIPS shall remit to PCOM the
reasonable costs of the accounting firm's fee for such audit.
5.6 PCOM acknowledges that the delivery dates specified in the chart
under Section 5.2.1 are critical to the success of the PHILIPS
Products. Accordingly, if the Deliverable for Item 5 is not
delivered on or before [***], PHILIPS shall have the option, at its
sole discretion, to cancel the Agreement, including any further
payments and royalties. In the event Item 7 is not delivered on or
before [***], PHILIPS' sole financial obligation shall be reduced
to [***].
[***] Denotes language for which Vyyo has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as
amended.
6.0 OWNERSHIP
6.1 OWNERSHIP BY PCOM. PCOM shall retain ownership of all proprietary
rights, including patent, copyright, trade secret, trademark and other
proprietary rights, in and to the DOCSIS MAC provided by PCOM to
PHILIPS under this Agreement. This Agreement shall not be construed to
grant any ownership interest to any PCOM patent, copyright, trade
secret, trademark or other proprietary right to PHILIPS.
6.2 TRANSFERS BY PCOM. In the event PCOM and/or PHASECOM INC. ever assigns
or otherwise transfers ownership of any of its proprietary rights in
the DOCSIS MAC, PCOM and PHASECOM INC. shall insure that such third
party assumes the rights and obligations of PCOM and PHASECOM INC. as
set forth in this Agreement. Notwithstanding any transfer or assignment
of this Agreement, the grants of licenses set forth in Section 4 shall
remain in full force and effect.
6.3 OWNERSHIP BY PHILIPS. Subject to PCOM.'s ownership rights under Section
6.1 in the DOCSIS MAC provided by PCOM to PHILIPS, PHILIPS and its
Affiliates shall own all modifications and Derivative Works made to the
DOCSIS MAC by PHILIPS and its Affiliates.
7.0 CONFIDENTIAL INFORMATION
7.1 CONFIDENTIAL INFORMATION. As used herein, "Confidential Information"
means the proprietary or confidential information of either Party which
is disclosed by such Party ("Discloser") to the other Party
("Recipient") pursuant to this Agreement, including semiconductor
technology, computer or data processing programs, electronic and data
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processing applications, routines, subroutines, techniques or systems,
or information concerning the business or financial affairs and methods
of operation or proposed methods of operation, accounts, transaction,
proposed transactions or security procedures of either a Party or its
Affiliates, vendors, or customers. The DOCSIS MAC information shall be
considered PCOM Confidential Information. The PHILIPS Product
information shall be considered PHILIPS Confidential Information. All
Confidential Information that is disclosed in tangible form shall be
marked by the Discloser as confidential or proprietary prior to
disclosure. Confidential Information that is disclosed in non-tangible
form shall be identified by the Discloser at the time of disclosure as
being confidential or proprietary and shall be confirmed in writing
within ten (10) days from its disclosure.
7.2 Confidential Information shall not include information that:
(i) was rightfully in the Recipient's possession prior to receipt from
the Discloser.
(ii) is or becomes a matter of public knowledge through no fault or
breach of the Recipient;
(iii) the Recipient rightfully receives from a third party, who has the
right to so transfer or disclose it, without a duty of confidentiality
on the third party or breach of this Agreement; or
(iv) is independently developed by Recipient without use of the
Discloser's Confidential Information.
7.3 OBLIGATIONS OF CONFIDENTIALITY. Each Party agrees to maintain
Confidential Information received from the Discloser in confidence
and neither use for any purpose apart from this Agreement, nor
disclose Confidential Information to any third party, except
Affiliates, without the prior written approval of the Discloser, or
as is required to comply with any order of a court, or any
applicable rule, regulation or law of any jurisdiction. In the event
that Recipient is required by judicial or administrative process to
disclose Confidential Information of the Discloser, it shall
promptly notify the Discloser and allow the Disclosure a reasonable
time to oppose such process or seek a protective order. Within
PHILIPS and PCOM and their respective Affiliates, Confidential
Information shall be disclosed only on a needs to know basis. The
foregoing obligations for Confidential Information shall remain in
force during the term of the Agreement and [***] following the
expiration or termination of this Agreement.
[***] Denotes language for which Vyyo has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as
amended.
7.4 DEGREE OF CARE. Each Party shall protect Confidential Information by
using the same degree of care, but not less than a reasonable degree of
care, to prevent the unauthorized disclosure or use of Confidential
Information, as that Party uses to protect its own confidential and
proprietary information of like nature and similar importance.
7.5 CONSULTANTS AND CONTRACTORS. Confidential Information may be disclosed
by PHILIPS to its consultants and contractors performing work or
services for PHILIPS in accordance with the scope of this Agreement,
provided that such consultants and contractors are subject to a valid,
binding and enforceable agreement to maintain the obligations of
confidentiality no less restrictive than those set forth in this
Section 7.
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7.6 PHILIPS' CUSTOMERS. Confidential Information may be disclosed by
PHILIPS to its customers as reasonably necessary for the purposes of
designing or developing Products for the customers, provided that such
customers enter into PHILIPS' standard non-disclosure agreement for the
protection of the Confidential Information.
8.0 INDEMNITY
8.1 INDEMNIFICATION BY PCOM. PCOM shall indemnify, hold harmless and defend
PHILIPS from and against any and all liabilities, suits, claims,
losses, damages, judgments, and costs (including reasonable attorneys'
fees) (collectively "Claims") brought by a third party against PHILIPS
for infringement of any patent, copyright. trade secret, trademark or
other legally enforceable proprietary right of any third party to the
extent directly arising out of (i) the DOCSIS MAC, as delivered to
PHILIPS, or the use of the DOCSIS MAC in accordance with the license
rights granted herein; (ii) any services performed by PCOM pursuant to
this Agreement, or (iii) any materials furnished by PCOM hereunder.
8.2 The foregoing obligation is subject to the following conditions:
(i) PCOM shall have the sole right to defend and/or settle any such
Claim;
(ii) PHILIPS shall give PCOM immediate notice of any such asserted
Claim and reasonable assistance required by PCOM in defending or
settling such Claim; and
(iii) PCOM shall have no liability associated with any infringement or
alleged infringement arising out of the combination of the DOCSIS MAC
with other components if such infringement would have been avoided in
the absence of such combination, unless such combination was specified
by PCOM. The foregoing states PCOM's sole and exclusive liability for
intellectual property infringement.
8.3 INDEMNIFICATION BY PHILIPS. PHILIPS shall indemnify, hold harmless and
defend PCOM from and against any and all liabilities, suits, claims,
losses, damages, judgments, and costs (including reasonable attorneys'
fees) (collectively "Claims") brought by a third party against PCOM for
infringement of any patent, copyright. trade secret, trademark or other
legally enforceable proprietary right of any third party to the extent
directly arising out of (i) solely the Product(s) in which a DOCSIS MAC
is incorporated, exclusive of the incorporated DOCSIS MAC; and (ii) any
modifications made to the DOCSIS MAC by Philips and/or its Affiliates
if such infringement would not have occurred in the DOCSIS MAC without
such modification.
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8.4 The obligation set forth in 8.3 is subject to the following conditions:
(i) PHILIPS shall have the sole right to defend and/or settle any such
Claim;
(ii) PCOM shall give PHILIPS immediate notice of any such asserted
Claim and reasonable assistance required by PHILIPS in defending or
settling such Claim; and
(iii) PHILIPS shall have no liability associated with any infringement
or alleged infringement arising out of the DOCSIS MAC as provided by
PCOM to PHILIPS, or out of the combination of the DOCSIS MAC with other
components, except for the Product itself, if such infringement would
have been avoided in absence of such combination.
The foregoing states PHILIP's sole and exclusive liability for intellectual
property infringement.
9.0 WARRANTIES
9.1 OWNERSHIP. PCOM warrants that it is the owner of the DOCSIS MAC as
delivered to PHILIPS and the owner of all intellectual property rights
associated with and/or subsisting in the DOCSIS MAC as delivered to
PHILIPS.
9.2 OPERATION. PCOM warrants that the DOCSIS MAC delivered to PHILIPS shall
operate according to the specifications provided, and that there are no
known defects of which PCOM has not made PHILIPS aware. Notwithstanding
the foregoing, PCOM shall not be liable on account of any breach of
warranty claims asserted by customers or purchasers of PHILIPS. Except
for PCOM's indemnification obligations under Section 8, PHILIPS shall
be responsible for any commercial liabilities arising out of its sale
of its products to PHILIPS' customers.
10.0 LIMITATION OF LIABILITIES
10.1 Neither party shall be liable for any incidental, consequential.
special, or punitive damages arising out of this Agreement or the
breach thereof (including, but not limited to, lost profits), and any
such liabilities are expressly disclaimed.
11.0 SUPPORT SERVICES
11.1 At PHILIPS' request, PCOM shall provide reasonable assistance to
PHILIPS in implementing the DOCSIS MAC into PHILIPS Products. At
PHILIPS' request, PCOM shall use reasonable commercial efforts to
provide PHILIPS with the necessary knowledge and information for,
and otherwise assist PHILIPS in, manufacturing or having made a
PHILIPS Product incorporating the DOCSIS MAC. If PCOM's assistance
in providing engineering support for designs not agreed to in this
Agreement or cable modem reference design, PHILIPS agrees to
compensate PCOM at a rate of [***]. If PCOM's on-site presence is
requested which has not been agreed to in
[***] Denotes language for which Vyyo has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as
amended.
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this Agreement, PHILIPS agrees to compensate PCOM for all reasonable
travel and lodging expenses, subject to PHILIPS' prior approval.
12.0 TERM AND TERMINATION
12.1 TERM. This Agreement shall continue in effect unless terminated as set
forth herein.
12.2 TERMINATION FOR BREACH. Either party may terminate this Agreement if
the other party materially breaches the Agreement and breaching party
fails to cure such breach within thirty days from receipt of written
notice from the non-breaching party describing the breach.
12.3 TERMINATION FOR NON-PERFORMANCE. PHILIPS may terminate as provided
under Section 5.5, upon thirty (30) days prior written notice.
12.4 TERMINATION UPON BANKRUPTCY. A party may terminate this Agreement if
the other party (i) commences a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect, or (ii) an involuntary bankruptcy
action or other such proceeding is commenced against it, and it is not
dismissed from such involuntary action or proceeding within ninety (90)
days from the commencement of such action or proceeding.
12.5 SURVIVAL AFTER TERMINATION. Except for termination of this Agreement
under Section 12.2 based on PHILIPS' material breach of the Agreement
and failure to cure as set forth in Section 12.2, the all licenses
granted under this Agreement shall survive the termination of this
Agreement.
12.6 MOST FAVORED PRICING. PHILIPS agrees to offer to PCOM the PHILIPS'
Product(s) that incorporate the DOCSIS MAC at PHILIPS' most favored
customer prices for such Product for the same or greater quantities
under similar terms and conditions, provided that PCOM does not offer
such products for resale as a standalone product.
12.7 RIGHT OF FIRST REFUSAL For a period of one year beginning on the
Effective Date of this Agreement, in the event that PHILIPS decides to
purchase from a third party (excluding PHILIPS' Affiliates) a DOCSIS
1.2 MAC for use in cable modem applications, PHILIPS shall provide
written notice to PCOM, and PCOM shall have a first right of refusal to
offer PHILIPS a PCOM DOCSIS 1.2 MAC on identical terms and conditions
offered by such third party. This provision shall not apply and
specifically excludes (i) any DOCSIS 1.2 MAC provided by a customer for
integration into a customer specific integrated circuit; (ii) any case
whereby a customer wishes to incorporate its own DOCSIS 1.2 MAC with
other PHILIPS intellectual property into an applications specific
standard product; and (iii) all other PHILIPS entities and Affiliates
who may wish to purchase a DOCSIS 1.2 MAC for a wireless application.
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13 GENERAL
13.1 ASSIGNMENT. Subject to Section 6.2 and the last sentence of this
Section 15.1, neither party may assign this Agreement nor any right or
obligation hereunder without the prior written consent of the other
party which consent will not be unreasonably withheld. PHILIPS may
assign this Agreement to any Affiliate or wholly-owned subsidiary of
PHILIPS, without the prior written consent of PCOM.
13.2 WAIVER. No delay in exercising, no course of dealing with respect to,
or no partial exercise of any right or remedy hereunder shall
constitute a waiver of any other right or remedy, or future exercise
thereof.
13.3 SEVERABILITY. If any term or provision of this Agreement should be
declared invalid by a court of competent jurisdiction, (i) the
remaining terms and provisions of this Agreement shall be unimpaired,
and (ii) the invalid term or provision shall be replaced by such valid
term or provision as comes closest to the intention underlying the
invalid term or provision. Where the invalid term or provision cannot
be replaced by a valid term or provision which comes closest to the
intention underlying the invalid term or provision, the invalid term or
provision shall be severed from the remaining terms, conditions and
provisions which shall continue to be valid to the fullest extent
permitted by law.
13.4 NOTICE. Written notice by either party to the other shall be deemed to
have been given when received via certified mail by the intended
recipient thereof at its address shown on the first page hereof, or to
such other address as such intended recipient may specify in a written
notice pursuant hereto.
13.5 GOVERNING LAW. This Agreement shall be governed in all respects by the
laws of the United States of America and the State of California,
excluding the application of its conflict of laws rules. This Agreement
shall be considered made and entered into in the State of California.
The parties agree that the United Nations Convention on Contracts for
the International Sale of Goods is specifically excluded from
application to this Agreement. Any lawsuits or other legal actions
brought to enforce this Agreement, or otherwise related to this
Agreement shall be brought exclusively in the federal and state courts
within the State of California.
13.6 ARBITRATION. Any unresolved disputes concerning this Agreement shall be
submitted to arbitration in accordance with the then prevailing rules
of the American Arbitration Association (i) before an arbitrator agreed
upon by the parties or (ii) if the parties cannot agree upon an
arbitrator within thirty (30) days, before three arbitrators selected
pursuant to the rules of the American Arbitration Association. The site
of the arbitration shall be San Francisco, CA. The arbitrator(s) may
award attorneys' fees and cost as part of the award. The award of the
arbitrator shall be binding and may be entered as a judgment in
13.7 any court of competent jurisdiction. Either Party may seek injunctive
relief from a court of competent jurisdiction if to protect the
legitimate interest of the Party seeking such relief.
12
13.7 FORCE MAJEURE. Each party shall be excused for failures and delays in
performance caused by war, any laws, proclamations, ordinances, or
regulations, or strikes, lockouts, floods, fires, explosions, acts of
God, or other catastrophes beyond its reasonable control and without
the fault of such party. This prevision shall not, however, release
such party from using its reasonable best efforts to avoid or remove
all such causes, and such party shall continue performance hereunder
with the utmost dispatch whenever such causes are removed. Any party
claiming any such excuse for failure or delay in performance shall give
prompt written notice thereof to the other party, and neither party
shall be required to perform hereunder during the period of such
excused failure or delay in performance except as otherwise provided
herein.
13.8 SURVIVAL. Sections 1, 4, 5, 6, 7, 8, 9, 10, and 13 shall survive the
expiration or termination of the Agreement.
This Agreement together with the Exhibits hereto, constitutes the entire
Agreement between the parties with respect to the subject matter hereof and
supersedes in all respects all prior proposals, negotiations, conversations,
discussions and agreements between the parties. This Agreement may not be
modified or amended except by express written amendment signed by authorized
representatives of both parties
IN WITNESS WHEREOF, the parties hereto, through their duly authorized officers,
have executed this Agreement.
13
ACCEPTED AND AGREED TO:
PHASECOM LTD. PHILIPS SEMICONDUCTORS INC,
/s/ Xxxxxxx Xxxxxx /s/
----------------------------------------- --------------------------------
Signature Signature
Xxxxxxx Xxxxxx
----------------------------------------- --------------------------------
Name Name
Vice President, Research & Development --------------------------------
Chief Technology Officer Title
-----------------------------------------
Title
--------------------------------
November 14, 1993 Date
-----------------------------------------
Date
PHASECOM INC.
/s/ Xxxx Xxxxxxxxxx
-----------------------------------------
Signature
Xxxx Xxxxxxxxxx
-----------------------------------------
Name
Chief Financial Officer
-----------------------------------------
Title
December 14, 1999
-----------------------------------------
Date
14
EXHIBIT A
DOCSIS 1.0 MAC SOFTWARE
Upon the signing of the licensing agreement and delivery of DOCSIS MAC 1.0,
including:
a) 1.0 MAC specification excluding BPI with detailed design documentation
on each hardware block
b) VHDL source code
c) The test benches
d) All applications source code for 1.0 cable modem running under Windows
95
e) 1.0 MAC FPGA
f) PCOM cable modem 1.0 prototype
g) 1.0 software sources and 1.0 software documentation as described in
Appendix A.
h) Unit test software for 1.0 software.
i) Engineer visit (1 hardware engineer, 1 software engineers, for 2 weeks
in Sunnyvale)
j) Sign-off of MAC 1.1 feature list
k) Full Architecture Specifications for 1.1 MAC
l) Full software Architecture Specifications and requirements
specification for 1.1 MAC
15
EXHIBIT B
SCOPE OF WORK
FOR
DOCSIS 1.1 MAC SOFTWARE
Delivery of PHILIPS DOCSIS MAC 1.1 firmware and VHDL sources, including:
a) Simulation test bench
b) Test vectors (Stimulus and simulation output files)
Delivery of PHILIPS DOCSIS MAC 1.1 Synthesis for P&R and QT
a) Synthesis scripts
b) Scripts for timing driven place and route
c) Gate-level simulated with timing Netlist for P&R
d) List of all critical paths
e) Test vectors for simulation of critical path
The foregoing activity will be performed by PHILIPS and the output files will be
checked by PCOM using PCOM's tools. PHILIPS is required to provide the output
VHDL model of the PHILIPS DOCSIS MAC1.1 (VITAL libraries with SDF).
QT Verification
a) Send an engineer to Sunnyvale for 4 weeks for QT simulation (10/18 to
11/15)
Post P&R and timing verification
a) PCOM will provide telephone support for this activity and will be
ready to send an engineer to Sunnyvale for two (2) weeks (11/15 to
12/1) if reasonably deemed necessary.
Full PHILIPS 1.1 MAC software
a) Test software
b) Full 1.1 MAC and applications source code
c) 1.1 MAC specification with detailed design documentation on each
hardware block
d) 1.1 Software: requirements spec, design spec, test spec, test results,
bug list,
e) Fully tested on PCOM evaluation board all PCOM cable modem application
software.
16
Silicon validation
a) 6 weeks on call, at site if needed starting 2/15/00
Cable Labs certification
a) 4 weeks on call targeted for wave 2 (May 2000)
PCOM shall provide to PHILIPS technical support for bug fixes and maintenance
for a one year period after silicon validation
- on-call support with 24-hour response time and guaranteed engineering
resource allocation , excluding weekends and holidays.
