EXHIBIT 10.35
JOINT DEVELOPMENT AND LICENSE
AGREEMENT
BETWEEN
SIEMENS AKTIENGESELLSCHAFT
AND
P-COM, INC.
[*] = 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.
TABLE OF CONTENTS
Parties
Recitals Page
Article 1 Definitions 1
Article 2 Joint Products 4
2.1 Initial Joint Products 4
2.2 Additional Joint Products 4
Article 3 Joint Development 5
3.1 Management Steering Committee (MSC) 5
3.2 Operational Management 6
3.3 Supply and Use of Documentation, Updated
Documentation and Labeling 7
3.4 License to Enable Use of Joint Results and
Documentation 7
3.5 Joint Ownership, Use and Disposition of Joint
Results 8
3.6 Default, Failure, Inability to Perform, Breach and
License 9
3.7 Field Trials and Demonstrations 9
3.8 Title and Risk of Loss 10
3.9 Technical Assistance and Training 10
3.10 Compliance 10
3.11 Samples for Siemens Tests 10
Article 4 Trademarks Excluded 11
Article 5 Payments 11
Article 6 Representations and Warranties 11
6.1 P-Com Representations and Warranties 11
6.2 Siemens Representations and Warranties 12
6.3 Warranties 13
6.4 Design Liability Indemnification 14
6.5 Patent Indemnification 14
Article 7 Term and Termination 16
Article 8 Effect of Termination 17
Article 9 General Indemnification 17
Article 10 Limitation of Liability 17
Article 11 Governing Law 18
Article 12 Non-Assignable 18
Article 13 Notices 18
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Article 14 Independent Contractors 19
Article 15 Force Majeure and Delays 19
Article 16 No Waiver of Rights 20
Article 17 Serverability of Provisions 20
Article 18 Publicity 20
Article 19 Entire Agreement 20
Article 20 Arbitration 21
Article 21 EEC Notification/Registration 22
Article 22 Non-Disclosure of Confidential Information 22
Article 23 Export Controls 23
Article 24 Incorporation of APPENDICES 23
Article 25 Counterparts 23
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THIS JOINT DEVELOPMENT AND LICENSE AGREEMENT ("JDL AGREEMENT") is made and
entered into as of this 30th day of June 1998 ("EFFECTIVE DATE") by and between
SIEMENS AKTIENGESELLSCHAFT, a corporation organized under the laws of Federal
Republic of Germany, represented through its public telecommunications network
division ON, having its principal place of business at Xxxxxxxxxxxxxx 00, 00000
Xxxxxx, Xxxxxxx ("SIEMENS"), and P-COM, INC., a Delaware corporation, having its
principal place of business at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000 XXX. ("P-COM").
RECITALS
WHEREAS, P-Com develops, manufactures and supplies certain wireless access
products; and
WHEREAS, Siemens develops, manufactures and supplies telecommunications
systems and solutions, including ATM products; and
WHEREAS, due to the complementary core competencies of P-Com and Siemens,
the Parties desire to enter into a strategic business relationship consisting of
(1) this JDL Agreement for the joint development pursuant to this JDL Agreement
of Joint Products (defined below) designed to be integrated and configured into
PTM Transmission Systems (defined below) marketed by each of the Parties, and
(2) a separate OEM Agreement for the sale and supply of Siemens and P-Com
products by Siemens and P-Com to each other for resale and integration and
configuration into PTM Transmission Systems; and (3) a separate agreement for
the sale by P-Com to Siemens of P-Com's point-to-point radio products;
WHEREAS, for purposes of this JDL Agreement, a PTM Transmission System
consists of a P-Com Radio System (defined below), a Siemens Asynchronous
Transfer Mode (ATM) switch, network management and Joint Products together which
provides local transport of information between shared central locations and
multiple remote locations;
NOW THEREFORE, the Parties, for valuable consideration, receipt of which is
hereby acknowledged and in consideration of the premises, covenants and
agreements, contained herein, mutually agree as follows:
ARTICLE 1 - DEFINITIONS
Wherever used in this JDL Agreement, the following capitalized terms
(singular or plural) shall have the following meanings:
1.1 "JDL AGREEMENT" shall mean this JOINT DEVELOPMENT AND LICENSE AGREEMENT,
including any and all APPENDICES hereto, as amended from time to time by
mutual agreement of the Parties in accordance with the terms of this JDL
Agreement.
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1.2 "ADDITIONAL JOINT PRODUCTS" shall mean Joint Products added to APPENDIX 2.2
as attached hereto, and as amended by mutual agreement of the Parties after
the Effective Date.
1.3 "ENGINEERING DOCUMENTATION" shall mean all written and machine readable
information agreed to be provided by P-Com, relating to the design of Joint
Products and Improvements including that generally listed in APPENDIX 1.3
1.4 "FIRMWARE" shall mean the software programs, which are stored in machine
executable form within non-volatile memory and operate embedded processors
within Joint Products.
1.5 "FIRMWARE SOURCE CODE" shall mean the program statements in human readable
form and written in a high level or assembly language which is compiled or
assembled to create Firmware.
1.6 "GENERAL KNOW-HOW" shall mean technical or functional data and information,
unpatented inventions, technical specifications or data (including
requirement, functional or design specifications), designs, drawings,
processes, techniques, methods, computer programming techniques, programmer
notes and instructions, algorithms, Software, Software Source Code,
Firmware, Firmware Source Code, test plans and test results, including all
corrections, modifications, changes, whether tangible, intangible, oral,
written or otherwise, regardless of media. "General Know-How" does not
include "Joint Results".
1.7 "IMPROVEMENTS" shall mean modifications, enhancements, improvements,
revisions and new versions, including but not limited to those made
pursuant to engineering change orders which remedy defects, and those which
add features or abilities to Joint Products.
1.8 "INITIAL JOINT PRODUCTS" shall mean the Joint Products listed in APPENDIX
2.1.1.
1.9 "JOINT PRODUCTS" shall mean those products (including Initial Joint
Products and Additional Joint Products) which are jointly developed by the
Parties pursuant to this JDL Agreement for integration into and
installation of PTM Transmission Systems. APPENDIX 1.9 lists the Joint
Products, including the identifying capabilities of each Joint Product, and
the minimum differences in design, function and feature necessary for a
product developed by a Party with the same identifying capabilities to not
be considered a Joint Product.
1.10 "JOINT RESULTS" shall mean all information relating to the design,
manufacture, installation, integration, service, support, maintenance, and
use of the Joint Products which is created by a Party pursuant to this JDL
Agreement, including the Engineering Documentation, Manufacturing
Documentation, User Documentation, unpatented inventions, Patents or works,
techniques, methods, computer programming techniques,
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algorithms, and including all corrections, modifications, and changes,
whether tangible or intangible, written or oral.
1.11 "MANAGEMENT STEERING COMMITTEE" ("MSC") shall mean the group of
individuals designated by the Parties to serve as described in Article 3 of
this JDL Agreement.
1.12 "MANUFACTURING DOCUMENTATION" shall mean all written or machine readable
information necessary for the manufacture of a Joint Product agreed to be
provided by P-Com including that described in APPENDIX 1.12.
1.13 "PARTIES" shall mean both P-Com and Siemens collectively, and "PARTY"
shall mean either P-Com or Siemens.
1.14 "PATENTS" shall mean patents and patent applications, including all
divisions, continuations, continuations-in-part, reissues and
reexaminations of the foregoing, and any corresponding patent applications
and patents, worldwide, including any renewals and extensions thereof;
copyright and maskwork rights and registrations; all other statutory rights
and protections worldwide, in any and all jurisdictions, including all
renewals and extensions thereof. "Patents" does not include any rights in
trademarks or trade names, and does not include any trademark registrations
or applications for registration of trademarks, in any jurisdiction,
worldwide.
1.15 "PTM RADIO SYSTEM" shall mean the point to multi-point radio system
described in APPENDIX 1.16.
1.16 "PTM TRANSMISSION SYSTEM" shall mean the point to multi-point wireless
transmission system identified in APPENDIX 1.16 to this JDL Agreement,
consisting of interconnected hardware, software, and the Joint Products,
which transports information between a shared central location and multiple
remote locations.
1.17 "SOFTWARE" shall mean software programs which operate on commercially
available computing equipment in machine executable form.
1.18 "SOFTWARE SOURCE CODE" shall mean the program statements in human readable
form and written in a high level or assembly language which is compiled or
assembled to create Software.
1.19 "SUBSIDIARIES" shall mean any entity (incorporated or unincorporated)
which is directly or indirectly controlling, controlled by, or under direct
or indirect common control with either Party hereto; "control" for purposes
of this JDL Agreement means ownership of 50% or more of the securities or
the ownership interest in such entity, having the right to vote for the
election of directors or otherwise having the power to direct the
management and policies of such entity (such as by contract) as long as
such control exists.
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1.20 "TECHNICAL SPECIFICATIONS" shall mean a document which the Parties agree
describes a Joint Product or Improvements, including but not limited to
functionality and performance criteria.
1.21 "TERM" shall be as defined in Section 7.1
1.22 "USER DOCUMENTATION" shall mean information necessary to sell, install,
configure, and maintain the Joint Products, including installation,
operation, and maintenance manuals; and, if available, engineering and
planning guides, user guides, quick reference guides, technical bulletins,
system descriptions, and marketing brochures.
1.22 Wherever used in this JDL Agreement, "includes" or "including" are words
of inclusion not exclusion and shall be interpreted and construed as though
followed by the words "but not limited to".
ARTICLE 2 - JOINT PRODUCTS
2.1 INITIAL JOINT PRODUCTS
2.1.1 Siemens and P-Com agree to jointly develop the Initial Joint
Products listed in APPENDIX 2.1.l
2.1.2 APPENDIX 2.1.2 sets forth the milestones for the development work,
which shall be met by each Party in performing its Initial
Development responsibilities and obligations. The milestones may not
be modified except pursuant to prior written agreement of the MSC.
2.1.3 APPENDIX 2.1.3 sets forth the mutually agreed upon Technical
Specifications for the Initial Joint Products. The Technical
Specifications for the Initial Joint Products may be modified only
pursuant to the prior written agreement of the Parties.
2.2 ADDITIONAL JOINT PRODUCTS
2.2.1 From time to time during the Term of this JDL Agreement, the Parties
shall discuss the joint development of other components or products
for use in PTM Transmission Systems or other wireless transmission
systems. Such joint development may include development of
Improvements or development of Additional Joint Products.
2.2.2 If the Parties agree to jointly develop an Additional Joint Product
or Improvement, the Parties shall negotiate and agree on: the
Technical Specifications for the Improvements or Additional Joint
Products; the responsibilities and obligations of each Party for the
development work to be performed; the milestones to be met; and the
manner in which the development
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work will be funded by the Parties. Upon such agreement, APPENDIX
2.2 shall be added to include such Improvements or Additional Joint
Products and associated Technical Specifications, obligations of the
Parties, milestones to be met, and method of funding. In addition,
APPENDIX 1.9 shall be revised to include descriptions of how each
Additional Joint Product shall cease to be considered a Joint
Product for the purposes of Section 3.5.4 and 3.5.5 .
ARTICLE 3 - JOINT DEVELOPMENT
3.1 MANAGEMENT STEERING COMMITTEE (MSC)
3.1.1 The Parties hereby establish a Management Steering Committee whose
responsibilities for Initial Joint Products shall consist of: (i)
monitoring and reviewing the Technical Specifications and any and
all changes to the Technical Specifications, (ii) monitoring and
reviewing the progress of the development in accordance with the
milestones, and all changes to development schedules, and (iii)
periodic reviews of all work performed and results to date. All
changes to the Technical Specifications, any changes to the
development schedules, and any other modifications or changes, which
are amendments or modifications to any agreement between the Parties
including this JDL Agreement or any APPENDICES hereto or thereto,
shall require the prior written consent and agreement of the Parties
hereto or thereto. Neither Party shall be obligated or required to
grant power or authority to its designee(s) on the Management
Steering Committee to bind it to any agreement or understanding or
any amendments to any agreement including this JDL Agreement or any
APPENDICES hereto. The Parties shall indicate their votes or written
consent on any matters in three (3) business days.
3.1.2 The Management Steering Committee's responsibilities for development
of Improvements and Additional Joint Products shall include: (i)
reviewing and monitoring of Technical Specifications and any changes
thereto, (ii) reviewing and monitoring the progress of the
development in accordance with the Milestones and all changes to the
development schedules and (iv) periodic reviews of all work
performed and results to date. All changes to the Technical
Specifications, any changes to the development schedules, and any
other modifications or changes, which are amendments or
modifications to any Agreement between the Parties, including this
JDL Agreement, or any APPENDICES hereto or thereto, shall require
the prior written consent and agreement of the Parties hereto or
thereto. Neither Party shall be obligated or required to grant power
or authority to its designee(s) on the Management Steering Committee
to bind it to any agreement or understanding, or any amendments to
any agreement including this JDL Agreement or any APPENDICES hereto.
The Parties shall indicate their votes or written consents on any
matters in three (3) business days.
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3.1.3 The MSC shall consist of two (2) designees designated by Siemens and
two (2) designated by P-Com. The initial members of the MSC are:
P-Com: Pier Antoniucci and Xx Xxxxxxxx
Siemens: Xxxx Xxxxxx and Xxxxxx Xxxxxxx
Each Party may replace its designee and designate other persons to
serve on the MSC upon written notice to the other Party.
3.1.4 The MSC may only meet and conduct business if at least one (1)
Siemens designee and one (1) P-Com designee are present. Meetings of
the MSC shall take place by telephone or in person at mutually
agreed upon locations and times, but in no case later than three (3)
business days after the requisite written notice of and request for
a meeting is provided by one Party to the other Party.
3.2 OPERATIONAL MANAGEMENT
3.2.1 Day to day responsibility for the development activities associated
with the Initial Joint Products and Additional Joint Products shall
reside in P-Com with such responsibilities to include operational
supervision, oversight, and management of the (i) project
organization, (ii) development process and progress, (iii) selection
of technical staff (including outside contractors, if any) and
supervision and monitoring of results, (iii) qualification and
selection of hardware and software components, (iv) implementation
of day to day design/feature tradeoffs, (v) conduct of development
meetings and reviews, (vi) expenditure of budgeted funds, and (vii)
performance of conformance testing.
3.2.2 Conformance Testing. P-Com will provide conformance tests procedures
which shall be used to verify that each Joint Product is in
conformance with the applicable Technical Specifications as part of
the material required for the design review milestone referenced in
APPENDIX 2.1.1 or 2.2 as the case may be. Siemens may propose and
insist upon additions or modifications to such conformance test
procedures inclusion of which will not be unreasonably refused by P-
Com. P-Com will provide timely notice of scheduled conformance
testing of Improvements and Joint Products with associated test
procedures provided to Siemens in advance and Siemens may provide
designees or representatives to participate in such conformance
testing Disputes regarding such conformance test procedures or test
results shall be referred to the MSC. Such participation by Siemens
shall not relieve P-Com of its responsibilities for the development
described herein.
3.2.3 Siemens or its Subsidiary shall have the right, from time to time at
Siemens' option, to assign up to five individuals to assist in the
development of the Initial Joint Products or Additional Joint
Products and further that such individuals shall
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(i) have responsibilities which are mutually agreed to by the
Parties, (ii) have their day to day work supervised by P-Com
management in a manner equivalent to P-Com employees or sub-
contractors that perform similar work, (iii) have minimum
educational qualifications of a bachelors degree in electrical
engineering or computer science, (iv) have a minimum of five years
work experience in electronic design, (v) be available for the time
necessary to complete assigned tasks, and (vi) speak the English
language fluently, and further, P-Com may terminate the
participation of any such individuals in such Joint Product
development if, in P-Com's reasonable opinion, such individuals are
not providing the quality, quantity, or timeliness of work agreed
upon by the Parties per (i) above; and in this event Siemens shall
have the option of replacing any such terminated individuals.
Siemens shall indemnify P-Com against any injury, damage or expense
(including reasonable attorney's fees and costs) resulting from any
act or omission by any such Siemens' employee in the performance of
his/her activities pursuant to this Section 3.2.3 absent any
negligence, omission, or willful misconduct or any participation
therein on the part of P-Com or its employees or agents.
3.3 SUPPLY AND USE OF DOCUMENTATION, UPDATED DOCUMENTATION, AND LABELING
3.3.1 P-Com shall prepare and supply Siemens with one (1) timely,
complete, and up-to-date set of the Engineering Documentation,
Manufacturing Documentation and User Documentation for each of the
Joint Products, Improvements, or Additional Joint Products within
thirty (30) days of the production availability milestone as set
forth in APPENDIX 2.1.2. Subsequent to delivery to Siemens of such
Documentation, P-Com shall prepare and supply Siemens with one
timely, complete and up to date set of any and all additions,
corrections, modifications, and changes made by P-Com to such
Documentation for any reason including additions, corrections,
modifications or changes to the Joint Product.
3.3.2 Both Parties may use, modify, copyright, and reproduce such
Engineering Documentation, Manufacturing Documentation and User
Documentation of Joint Products in any manner subject to the terms
and conditions of this JDL Agreement. Such Documentation and the
information contained therein shall not be used in breach of the
terms set forth in this JDL Agreement.
3.4 LICENSE TO ENABLE USE OF JOINT RESULTS AND DOCUMENTATION
Subject to Sections 3.5.4 and 3.5.5 hereof, each Party (Licensor) grants to
the other Party (Licensee) a non-exclusive, non-assignable and non-
transferable license under its Patents and its General Know-How to use such
Patents or General Know-How of Licensor incorporated into and contained in
the Joint Products and Joint Results, to develop, have developed,
manufacture, have manufactured, use, market, distribute and sell Joint
Products (including any modifications, enhancements, derivatives, new
versions or future generations thereof). The rights, licenses and
obligations granted hereunder by P-Com to
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Siemens shall extend to Siemens' Subsidiaries who are engaged in the
development, manufacture, marketing, service and support of the Joint
Products.
3.5 JOINT OWNERSHIP, USE AND DISPOSITION OF JOINT RESULTS
3.5.1 The Joint Results shall be jointly owned by Siemens and P-Com [*].
3.5.2 Each joint owner agrees to cooperate with the other owner in the
enforcement of any jointly owned Patent rights against any third
party infringes by joining in such action or providing such rights
and authorizations as may be required by law to enable the other
owner to bring an action and recover for infringement against a
third party; where one party (and its Subsidiaries) to such action
or proceedings elects not to share or for any reason does not share
in any recoveries or settlements resulting therefrom, its costs and
expenses (including reasonable attorneys fees) shall be paid for by
the other party to such action or proceeding who is entitled to all
recoveries or settlements resulting therefrom.
3.5.3 Each Party agrees to share equally in all costs of applying for,
obtaining, maintaining and renewing Patents relating to inventions
or works resulting from development activities conducted under
Article 2 of this JDL Agreement, and agrees to cooperate with the
other Party by providing such information as it may have regarding
such inventions or works. Refusal or failure of either Party to pay
its share of such costs and expenses, shall not constitute a
material breach of this JDL Agreement entitling the non-breaching
Party to terminate this JDL Agreement; however, the non-breaching
Party shall have the right to pursue such other rights and remedies
as it may have against the breaching Party, at law, by contract, or
otherwise.
3.5.4 P-Com grants to Siemens a license under P-Com General Know-How other
than that licensed under Section 3.4 to interface Joint Products
solely with P-Com PTM Radio Systems and further, P-Com grants to
Siemens a non-exclusive license to sell Joint Products directly to
an End Purchaser and [*].
Provided, however, if P-Com is in material breach or default of this
JDL Agreement or the OEM Agreement, or P-Com fails to provide
Siemens with P-Com OEM Product, or makes an arrangement with
creditors or a filing in bankruptcy or is insolvent, then this
condition [*]
[*] = 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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[*].
3.5.5 [*].
3.6 DEFAULT, FAILURE, INABILITY TO PERFORM, BREACH, AND LICENSE
In the event that (i) P-Com fails, is unable or unwilling to complete the
development of any Initial Joint Products as provided in this JDL
Agreement, (ii) Siemens terminates as provided in Section 7.2 of this JDL
Agreement, and (iii) Siemens does not exercise its rights under Section 8.1
of this JDL Agreement, Siemens shall have the right to elect to complete or
have completed such development, and to manufacture, have manufactured,
use, market, distribute and sell the Joint Products in PTM Transmission
Systems. Upon Siemens election to exercise such right, P-Com agrees to
promptly deliver to Siemens any and all Engineering Documentation and Joint
Results in written or machine readable form, regardless of media, including
but not limited to design documentation prepared in accordance with P-Com's
ISO 9000 certified procedures, which is available at P-Com at the time of
such exercise by Siemens. P-Com hereby grants to Siemens a non-exclusive
license under its Patents and in its General Know-How to complete such
development, and to develop, manufacture, have manufactured, use, market,
distribute and sell the Joint Products in PTM Transmission Systems,
including any modifications, enhancements, derivatives, new versions, or
future generations of such Joint Products. The rights, licenses and
obligations granted hereunder to Siemens shall extend to Siemens'
Subsidiaries. Furthermore, P-Com agrees that P-Com will provide at no
charge to Siemens reasonable access to P-Com's design staff to support
Siemens in completing such Joint Product design.
3.7 FIELD TRIALS AND DEMONSTRATIONS
In the event of field trials or demonstrations in which Joint Products are
installed and used, each Party shall make its own arrangements for the
manufacture and supply of Joint
[*] = 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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Products for use for such purposes. P-Com agrees, upon request of Siemens,
particularly where Siemens has not yet received the Engineering
Documentation, Manufacturing Documentation and User Documentation or
commenced commercial manufacture of the Joint Products, to manufacture and
supply Joint Products to Siemens for Siemens' conducted field trials or
demonstrations; the Parties shall discuss and agree upon reasonable price
and terms for such quantities as Siemens may require for such Siemens field
trials or demonstrations.
3.8 TITLE AND RISK OF LOSS
Title to prototypes, samples, any other deliverables deliverable by P-Com
to Siemens, shall pass to Siemens from P-Com upon their coming into being.
Title to tangible and intangible Joint Results under this JDL Agreement
shall vest in P-Com and Siemens as joint owners upon such tangible and
intangible Joint Results first coming into being. Risk of loss or damage
to tangibles such as prototypes, samples, any Documentation (Engineering,
Manufacturing, or User) deliverable by P-Com to Siemens, shall pass upon
delivery in hand, personally, by P-Com (or Siemens' designated carrier) to
a Siemens' representative.
3.9 TECHNICAL ASSISTANCE AND TRAINING
In the course of the development process, P-Com agrees to provide technical
assistance and training to facilitate technology transfer from P-Com to
Siemens with respect to the Joint Results and Joint Products. P-Com
provided technical assistance and training will include adequate training
materials with respect to the Joint Products including their use, service,
support and maintenance. Technical assistance and training shall also be
conducted in parallel with the development process as reasonably necessary
to enable Siemens to prepare for introduction, marketing, sale, service,
support and maintenance of the Joint Products and PTM Transmission Systems.
The details of such training, e.g. date, duration, location, cost to
Siemens, number of trainees, etc. will be agreed upon on a case by case
basis by P-Com and Siemens.
3.10 COMPLIANCE
3.10.1 P-Com represents and warrants that the Joint Products when
completed will qualify for the approvals listed in APPENDIX 3.10.1,
and that no modifications are necessary for the Joint Products to
qualify for such approvals. In the event of any breach of this
representation and warranty, P-Com shall, upon request of Siemens,
promptly perform all modifications and changes necessary to correct
the same, at its cost and expense.
3.10.2 P-Com shall promptly provide Siemens with all information necessary
for Siemens to obtain any approvals which Joint Products are
qualified for in APPENDIX 3.10.1.
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3.11 SAMPLES FOR SIEMENS TESTS
Upon request of Siemens, P-Com shall at its own expense deliver to Siemens
free of charge one (1) sample of each Joint Product for testing purposes.
If Siemens requests additional samples, P-Com agrees to provide such
samples at a price which will be [*] of the P-Com's list price. Each sample
shall be accompanied by appropriate information, instructions, and User
Documentation, and shall not be resold by Siemens.
ARTICLE 4 - TRADEMARKS EXCLUDED
No rights or licenses whatsoever are granted or required to be granted by
either Party or its Subsidiaries to the other Party or its Subsidiaries
with respect to any trademarks or tradenames pursuant to this JDL
Agreement.
ARTICLE 5 - PAYMENTS
5.1 In consideration of the rights and licenses granted by P-Com to Siemens
pursuant to this JDL Agreement, Siemens agrees to pay to P-Com the sum of
[*] which shall be due and payable in [*] installments as follows: (i) P-
Com shall invoice Siemens for [*] upon execution of this JDL Agreement by
both Parties and such invoice shall be due and payable on or before [*];
and (ii) P-Com shall invoice Siemens for [*] on or after [*]. Such invoice
shall be due and payable within seventy-five (75) days after date of such
invoice
5.2 All monies due and payable at any time pursuant to this JDL Agreement shall
be effected in U.S. Dollars.
5.3 All payments more than thirty (30) days past due shall accrue interest
thereon commencing on the 31st day, at the rate of [*] on the past due
balance, up to the maximum rate permitted under applicable law, until paid
in full.
5.4 The effectiveness of this JDL Agreement will not be affected by the
introduction of the EURO.
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES
6.1 P-COM REPRESENTATIONS AND WARRANTIES.
P-Com represents and warrants to Siemens as follows:
6.1.1 P-Com is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has full power
and authority to enter into, execute, and deliver this JDL
Agreement, and to perform its obligations
[*] = 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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under this JDL Agreement and to consummate the transactions
contemplated herein.
6.1.2 The execution and delivery by P-Com of this JDL Agreement and the
performance of its obligations hereunder and the consummation of the
transactions contemplated by this JDL Agreement have been duly
authorized and no other corporate action is required by P-Com.
6.1.3 This JDL Agreement constitutes the valid and legally binding
obligation of P-Com, enforceable in accordance with its terms
against P-Com.
6.1.4 There are no bankruptcy, insolvency, or other similar proceedings,
or arrangements with creditors, anticipated, contemplated or pending
by P-Com.
6.1.5 As of the Effective Date there are no outstanding rights, options,
agreements or other commitments giving any person any current or
future right to require P-Com or its Subsidiaries to license, sell,
or deliver to such person or third parties any right or license to
use or any ownership interests in the Joint Products or P-Com
General Know-How which are inconsistent with the terms and
conditions of this JDL Agreement.
6.1.6 The execution, delivery and performance of this JDL Agreement will
not violate the articles of incorporation, bylaws, or any agreement
of P-Com.
6.1.7 To the best knowledge of P-Com, no consent, approval, or
authorization of, or declaration, filing, or registration with, any
governmental body or any other person is required to be made or
sought in connection with the execution, delivery and performance of
this JDL Agreement by P-Com.
6.1.8 To the best knowledge of P-Com, there is no litigation, arbitration,
or other proceeding or governmental body investigation or proceeding
pending, which relates to the subject matter of this JDL Agreement
or any General Know-How, Joint Results or Patents of P-Com, and
there is no basis for such litigation, arbitration or other
proceedings or investigation, nor is there any basis for claims
alleging or claiming violations of applicable law.
6.1.9 There are no facts of which P-Com or its Subsidiaries are aware that
would materially adversely affect the value of the rights and
licenses granted to Siemens and set forth in this JDL Agreement.
6.2 SIEMENS REPRESENTATIONS AND WARRANTIES.
Siemens represents and warrants to P-Com as follows:
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6.2.1 Siemens is a corporation duly organized, validly existing and in
good standing under the laws of the Federal Republic of Germany, and
has full power and authority to enter into, execute, and deliver this
JDL Agreement, and to perform its obligations under this JDL Agreement
and to consummate the transactions contemplated herein.
6.2.2 The execution and delivery by Siemens of this JDL Agreement and the
performance of its obligations hereunder and the consummation of the
transactions contemplated by this JDL Agreement have been duly
authorized and no other corporate action is required by Siemens.
6.2.3 This JDL Agreement constitutes the valid and legally binding
obligation of Siemens, enforceable in accordance with its terms
against Siemens.
6.2.4 There are no bankruptcy, insolvency, or other similar proceedings,
or arrangements with creditors, anticipated, contemplated or pending
by Siemens.
6.2.5 As of the Effective Date, there are no outstanding rights, options,
agreements or other commitments giving any person any current or
future right to require Siemens or its Subsidiaries to license, sell,
or deliver to such person or third parties any right or license to use
or any ownership interests in the Joint Products which are
inconsistent with the terms and conditions of this JDL Agreement.
6.2.6 The execution, delivery and performance of this JDL Agreement will
not violate the articles of incorporation, bylaws, or any agreement of
Siemens.
6.2.7 To the best knowledge of Siemens, no consent, approval, or
authorization of, or declaration, filing, or registration with, any
governmental body or any other person is required to be made or sought
in connection with the execution, delivery and performance of this JDL
Agreement by Siemens.
6.2.8 To the best knowledge of Siemens, there is no litigation,
arbitration, or other proceeding or governmental body investigation or
proceeding pending, which relates to Siemens and the subject matter of
this JDL Agreement or Siemens interest in any Joint Results and there
is no basis for such litigation, arbitration or other proceedings or
investigation, nor is there any basis for claims alleging or claiming
violations of applicable law.
6.2.9 There are no facts of which Siemens or its Subsidiaries are aware
that would materially adversely affect the value of the rights and
licenses granted to P-Com and set forth in this JDL Agreement.
13
6.3 WARRANTIES
P-Com warrants to Siemens that each and every Joint Product and Improvement
designed and developed by P-Com pursuant to this JDL Agreement, and the
Documentation (Engineering, Manufacturing and User) provided to Siemens by
P-Com, is free from design and engineering defects, errors and omissions
and conforms to the Technical Specifications. The Joint Results are and
shall be free of any security interest, lien or any other encumbrance
whatsoever. All Joint Results agreed to be provided or provided by P-Com
to Siemens shall at date of delivery be up to date and complete,
technically correct and ready for use for the purposes set forth in this
JDL Agreement. P-Com further warrants that all Joint Products shall be Year
2000 compliant i.e. able to recognize, compute, process, compare and
correlate, date sensitive data, between dates in the 20th century and dates
in the 2lst and centuries following thereafter, including leap year data,
and there will be no Firmware or Software failure or error related to
processing and correlating date sensitive data between and transitioning
from the 20th century to the 21st century. In the event any defect, error,
omission, or deficiency is discovered, P-Com will correct the Joint Results
promptly at P-Com's cost and expense.
6.4 DESIGN LIABILITY INDEMNIFICATION
[*]. P-Com shall have no liability hereunder with respect to any
modifications made to Joint Products or modifications made to Documentation
(Engineering, Manufacturing, or User) by Siemens or other parties, to which
P-Com was not a party.
6.5 PATENT INDEMNIFICATION
P-Com agrees to defend against any claims asserted by a third party or any
action brought by a third party against P-Com, Siemens, and/or any
Subsidiaries of Siemens asserting that manufacture, sale, use or
distribution of any Joint Product or component thereof or any Documentation
(Manufacturing, Engineering, or User) as delivered by P-Com pursuant to
this JDL Agreement, infringes a U.S. or foreign patent of such third party
or violates the proprietary rights of such third party; and:
[*]
[*] = 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.
14
[*]
(ii) where (i) if this Section 6.5 does not apply, P-Com and Siemens shall
share voice, power and control in the handling of the defense against any
such third party claim that the manufacture, sale, use or distribution of
any Joint Product or component thereof or Documentation (Manufacturing,
Engineering, or User as delivered by P-Com, infringes a U.S. or foreign
patent or the proprietary rights of such third party) and as between
themselves shall be responsible for payment of all costs of defense, and
costs and damages awarded in a non-appealable court decision or final
alternative dispute resolution (e.g., arbitration) award in a claim against
Siemens, P-Com and Siemens, Siemens and any Siemens Subsidiary, and/or P-
Com and any Subsidiaries of Siemens, or any settlement agreed to by P-Com
and Siemens or P-Com and such Siemens Subsidiary, in the following manner
and shared as follows:
Where
A = total number of infringing units sold by P-COM to date of all
Joint Product that is alleged to infringe in such third party claim
and proceedings
B = total number of infringing units sold by Siemens (and/or Siemens
Subsidiary) to date of all Joint Product that is alleged to infringe
in such third party claim and proceedings
Then
P-Com's share shall be the amount resulting from the following calculation:
[*]
And
Siemens (and its Subsidiary's combined) share shall be the amount resulting
from the following calculation:
[*]
Each Party agrees to give the other timely notice of any claims of
infringement and to provide such information as it may have regarding such
claim. P-Com agrees to cooperate with Siemens and provide such information
and assistance as may be reasonably necessary to defend against such claim.
Neither Party shall have any liability or obligation pursuant to this
Section 6.5 to the other Party with respect to any third party infringement
claims, and costs incurred in the
[*] = 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
defense thereof, and/or costs, expenses, or damages awarded or any
settlement, where such third party infringement claim arises solely out of
a modification, adaption, alteration or change in a Joint Product by or for
either Party or its Subsidiary or any other person beyond and outside the
scope of the joint development efforts of the Parties under this JDL
Agreement (or beyond or outside any warranty or support and maintenance
obligations or agreements with respect to the Joint Product if manufactured
by it for the other Party).
ARTICLE 7 - TERM AND TERMINATION
7.1 The term of this JDL Agreement shall commence on the Effective Date and
shall, subject to earlier termination as provided herein, continue in
effect thereafter for a period of [*] calendar years (the "Term").
7.2 This JDL Agreement may be terminated as follows:
7.2.1 In the event of a material breach by a Party (or its Subsidiary) of
any of its obligations under this JDL Agreement, the other (non-
breaching) Party shall have the right to terminate this JDL
Agreement by giving written notice to the breaching Party specifying
such breach; and if the breach is remediable, the breaching Party
shall have ninety (90) days from date of receipt of such notice to
remedy such breach. If such breach is not remedied within such
ninety (90) days, this JDL Agreement shall automatically terminate
at the end of such ninety (90) day period. If such breach is
remedied within such ninety (90) days, such notice shall expire and
have no further force or effect and this JDL Agreement shall
continue in full force and effect and continue to bind the Parties.
It being understood and agreed, however, without limiting Article
10, that neither Party shall be liable to the other Party for any
indirect, punitive, special or consequential damages including lost
profits howsoever arising out of any such breach even if it has been
advised of the possibility thereof.
7.2.2 A Party shall have the right to terminate this JDL Agreement in the
event the other Party is unable to meet its debts and obligations to
creditors when due and enters into an arrangement with its creditors
with respect to the payment of its debts and obligations which
arrangement is not terminated within thirty (30) days, makes a
general assignment for the benefit of creditors, voluntarily files a
petition in bankruptcy or has such a petition involuntarily filed
against it (which petition is not discharged within thirty (30) days
after filing), or is placed in an insolvency proceeding, or if an
order is issued appointing a receiver, liquidator, trustee, or
assignee in bankruptcy or in insolvency covering all or
substantially all of such Party's property relating to this JDL
Agreement, seeks reorganization under any bankruptcy act, consents
to a petition seeking such reorganization, has a decree or a levy or
attachment made against a substantial portion of its assets which
order
[*] = 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
shall not be vacated, or set aside within thirty (30) days from
date of issuance, or if any assignment for the benefit of its
creditors is made.
7.2.3 If Siemens is then in good standing under this JDL Agreement,
Siemens and/or its Subsidiaries shall have the right to make such
elections as may be provided for under Section 365(n) of the USA
Bankruptcy Code and enjoy its licenses held pursuant to this JDL
Agreement.
7.2.4 In the event a Party materially breaches its obligations under the
OEM Agreement entered into this same date between Siemens and P-Com,
in that it fails to perform its obligations under Article 12 of said
OEM Agreement, the non-breaching Party shall have the right to
suspend performance of its obligations under this JDL Agreement.
ARTICLE 8 - EFFECT OF TERMINATION
8.1 In the event of a material breach of this JDL Agreement by P-Com or the
occurrence of the conditions in Section 7.2.2 prior to completion of
development and commercial availability of the Initial Joint Products or
the sale of P-Com's PTM business unit, all monies paid pursuant to this JDL
Agreement by Siemens to P-Com including the sums paid pursuant to Article 5
herein shall become immediately and unconditionally due and repayable by P-
Com to Siemens, together with interest on unpaid balance at the rate of
[*] per annum until repaid in full; and Siemens may elect to terminate this
JDL Agreement and upon such election by Siemens, all licenses granted to or
held by Siemens (and its Subsidiaries) under this JDL Agreement shall
terminate. Whether or not Siemens exercises its right to terminate the JDL
Agreement, Siemens has the right to use its [*] or rights or any other
right as defined in either the JDL Agreement or OEM Agreement to recover
any unpaid balance of the monies paid to P-Com plus interest for said
License Agreement.
8.2 The following Sections shall survive any termination of this JDL Agreement:
3.4, 3.5.1, 3.5.2, 3.5.3, 3.5.4, 3.5.5, 3.6, 3.8, 3.10.1, 6.3, 6.4, 6.5,
8.1, 8.2, Articles 9, 10, 11, 12 10, 13, 15, 20, 22, 23.
ARTICLE 9 - GENERAL INDEMNIFICATION
Subject to the limitations provided in Article 10 (Limitation of
Liability), each Party agrees to indemnify and hold harmless the other
Party, and its owners, officers, directors, agents, representatives,
designees, Subsidiaries, affiliates and employees, from and against any and
all claims, losses, penalties, forfeitures, damages, judgments, causes of
action, suits, liabilities, costs and expenses, including, but not limited
to, court costs, costs of settlement, litigation costs and reasonable
attorneys' fees arising out of or related to (i) the intentional breach by
such Party of any of the terms and conditions of this JDL Agreement , and
(ii) any gross negligence, willful, act or omission to act by the
[*] = 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
indemnifying Party in the performance of its obligations under this JDL
Agreement. Such liabilities shall include, but not be limited to, those
which are attributable to injury to persons, sickness, disease or death;
and/or from injury to or destruction of real or tangible personal property
including loss of use thereof, theft, misuse or misappropriation.
ARTICLE 10 - LIMITATION OF LIABILITY
NEITHER PARTY NOR ITS SUBSIDIARIES NOR THEIR RESPECTIVE EMPLOYEES, AGENTS,
OFFICERS OR DIRECTORS SHALL BE LIABLE TO THE OTHER IN ANY WAY WHATSOEVER,
WHETHER AS A RESULT OF A CLAIM OR ACTION IN CONTRACT OR IN TORT OR
OTHERWISE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES,
INCLUDING LOST PROFITS, LOST BUSINESS REVENUES, LOST BUSINESS, FAILURE TO
REALIZE EXPECTED SAVINGS OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND
WHATSOEVER, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT
THE PARTY, ITS EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDED, HOWEVER, EACH PARTY MAY BE
LIABLE TO THE OTHER OR THE SUBSIDIARIES OF THE OTHER FOR SUCH PURSUANT TO
AN OBLIGATION TO INDEMNIFY AND HOLD HARMLESS AGAINST SUCH DAMAGES AWARDED
TO A THIRD PARTY BY A COURT.
ARTICLE 11 - GOVERNING LAW
This JDL Agreement shall be governed in all respects by the substantive
laws of the State of New York, USA, without regard to its conflicts of law
provisions. The Parties agree that the United Nations Convention on
Contracts for the International Sale of Goods (1980) shall not be
applicable to this JDL Agreement.
ARTICLE 12 - NON-ASSIGNABLE
Neither Party may sell, assign or transfer this JDL Agreement or any of its
rights or obligations hereunder, whether voluntarily or by operation of
law, without the prior written consent of the other Party, which consent
shall not be unreasonably withheld or delayed, and any attempted assignment
in violation of the foregoing shall be null and void. Provided however,
Siemens, as a part of any corporate restructuring, may sublicense, sell,
assign, and/or transfer this JDL Agreement and/or its rights or obligations
hereunder in whole or in part to any Subsidiary which has sufficient
financial reserves to discharge its obligations under this JDL Agreement,
upon delivery of written notice to P-Com, provided such assignment shall
not release Siemens from liability hereunder. Subject to the foregoing,
this JDL Agreement will inure to the benefit of and be binding upon its
successors, assigns and Subsidiaries of the Parties.
ARTICLE 13 - NOTICES
13.1 All notices or reports permitted or required under this JDL Agreement
shall be in writing and shall be delivered by personal delivery, facsimile
transmission confirmed by certified
18
or registered airmail, return receipt requested, and shall be deemed given
upon personal delivery, or upon acknowledgment or confirmation of receipt.
Notices shall be sent to the following addresses of the Parties:
13.2 If to Siemens:
Siemens Aktiengesellschaft OEN Group
Xxxxxxxxxxxxxx 00
X - 00000 Xxxxxx
Xxxxxxx
Attention: Xxxxxxxx Xxxxxxxxxxx
with a copy to:
Siemens Telecom Networks
Attention: Xxxxx Xxxxxxxx, Legal Counsel
000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
13.3 If to P-Com:
P-Com, Inc.
0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
XXX
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000
Or to such other addresses as may be indicated by such party from time to
time by notice given in such manner.
ARTICLE 14 - INDEPENDENT CONTRACTORS
Nothing contained herein shall be construed as creating any agency,
partnership, or other form of joint enterprise between the Parties. The
Parties' relationship is one of independent contractors. All individuals
furnished by one Party to the other Party to provide services hereunder
shall be considered solely as and remain that Party's employees or agents,
and that Party shall be responsible for payment of all their unemployment,
social security and other payroll taxes, including employee benefit
contributions as required by law.
ARTICLE 15 FORCE MAJEURE AND DELAYS
15.1 A Party shall not be liable for breach,for delay or nonperformance of the
terms of this JDL Agreement, to the extent its delay or nonperformance is
due to inability to perform due to Force Majeure (which shall be defined as
any cause outside such Party's
19
reasonable control and not due to its fault or negligence, including
strikes, shortages, riots, insurrection, fires, flood, storm, explosions,
acts of God, war, governmental action, labor conditions, earthquake,
embargoes, or any other cause which is beyond the reasonable control of
such Party. The affected Party shall give the other Party reasonable notice
of the occurrence of any Force Majeure that materially delays or affects
its performance or which will foreseeably materially delay or affect its
future performance under this JDL Agreement. Upon the expiration or
termination of the Force Majeure the affected Party shall perform the
affected obligations as soon as possible.
15.2 Notwithstanding any other provision in this JDL Agreement to the contrary,
no Party shall be liable for breach , for any delay or failure in the
performance of its obligations under this JDL Agreement that directly
results from any failure of the other Party to perform its obligations
under this JDL Agreement.
ARTICLE 16 - NO WAIVER OF RIGHTS
The failure of either Party to require performance by the other Party of
any provision hereof shall not affect the right to require such performance
at any time thereafter; nor shall the waiver by either Party of a
particular breach of any provision hereof be taken or held to be a
continuing waiver or a waiver of the provision itself or of other breaches
thereof.
ARTICLE 17 - SEVERABILITY OF PROVISIONS
In the event that any provision of this JDL Agreement shall be held to be
unenforceable or invalid under any applicable law by a court of competent
jurisdiction, such un-enforceability or invalidity shall not render this
JDL Agreement unenforceable or invalid as a whole, and, in such event, such
provision shall be deemed amended so as to comply with applicable law
without prejudicing the balance of the mutual rights and obligations of the
Parties under this JDL Agreement.
ARTICLE 18 - PUBLICITY
18.1 Neither Party shall disclose any of the terms of this JDL Agreement, or
any discussions, negotiations, or activities of the Parties pursuant to
this JDL Agreement, except as permitted under the terms of this JDL
Agreement, or mutually agreed to in advance by both Parties.
18.2 Any and all press releases and publicity announcements by either Party
will be submitted to the other Party five (5) calendar days in advance, for
review and comments prior to release. Any advertising, sales and marketing
promotions, relating to this JDL Agreement which references the other Party
will be submitted to the other Party, five calendar days prior to releasing
such publicity, for review and comments. Notwithstanding the foregoing, the
Parties agree to make every reasonable effort to
20
promptly submit its comments to the other Party, and to agree upon and
consent to the publication of a mutually acceptable press release.
ARTICLE 19 - ENTIRE AGREEMENT
19.1 This JDL Agreement and the APPENDICES attached hereto and incorporated
herein by reference constitute the entire agreement between the Parties
with respect to the subject matter hereof. This JDL Agreement supersedes
any and all prior discussions, negotiations, representations,
communications, and agreements with respect to the subject matter hereof.
19.2 This JDL Agreement may only be amended by a writing that has been signed
by the duly authorized representatives of both Parties hereto.
ARTICLE 20 - ARBITRATION
20.1 In the event of any claim and dispute between the Parties or their
Subsidiaries with respect to this JDL Agreement, the Parties shall make a
reasonable effort to resolve the same amicably. Senior executives of both
Parties shall meet to attempt to resolve the same. Either Party shall have
the right to request voluntary mediation of such dispute. In the event such
claim and dispute is not resolved within thirty days after the commencement
of such efforts, such claim and dispute arising out of or in connection
with this JDL Agreement, including any question regarding its existence,
validity, termination, interpretation or breach, shall be finally resolved
by binding arbitration under and in accordance with the International
Arbitration Rules of the American Arbitration Association in New York City
("Rules") by three arbitrators selected in accordance with the Rules.
20.2 Regardless of whether they are direct or the sole parties to the dispute,
Siemens and P-Com shall each select one arbitrator. Both arbitrators shall
agree on the third arbitrator within thirty (30) days. Should the two
arbitrators fail, within the above time limit, to reach agreement on the
third arbitrator, a third arbitrator shall be appointed by the American
Arbitration Association.
20.3 The seat of arbitration shall be New York, New York, USA. The procedural
law of this place shall apply where the Rules are silent.
20.4 The language to be used in the arbitration proceeding shall be English.
20.5 P-Com now and forever, on behalf of itself and its Subsidiaries, [*].
[*] = 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.
21
20.6 The award of the arbitrator shall be final and binding. Enforcement of the
award may be sought in any court of competent jurisdiction. Either party
may seek to obtain in any court of competent jurisdiction any interim
relief or provisional remedy, including injunctive relief. Seeking or
obtaining such interim relief or provisional remedy in a court shall not be
considered to be a waiver of the agreement to arbitrate hereunder. This
agreement to arbitrate shall survive any termination of this JDL
Agreement.
20.7 Subject to the foregoing, the Parties, on their own behalf and on behalf
of their Subsidiaries, waive the right to trial by jury with respect to
matters relating to this JDL Agreement.
ARTICLE 21 - EEC NOTIFICATION/REGISTRATION
If required by applicable law, the Parties will send notification of this
JDL Agreement to the EEC Commission for antitrust clearance as soon as
practicable after the Effective Date.
ARTICLE 22 - NON DISCLOSURE OF CONFIDENTIAL INFORMATION
22.1 Siemens and P-Com each undertake to receive and maintain in confidence
the confidential information disclosed to it by the other Party and to
observe the same degree of care with respect to protecting and maintaining
the confidence thereof, which they use to protect and maintain the
confidentiality of their own respective confidential proprietary
information (but not less than reasonable care). Confidential information
shall be marked with notices such as "confidential" or "confidential and
proprietary" at the time it is disclosed and furnished by one Party to the
other under this JDL Agreement; confidential information disclosed orally
shall be deemed confidential information only if summarized in writing by
the disclosing party within thirty (30) days after disclosure and
identified as "confidential" or "confidential and proprietary". Subject to
such rights and licenses granted elsewhere in this JDL Agreement or in
other agreements between the Parties, a Party shall not use the other
Party's confidential information for any purpose other than in furtherance
of the purposes of this JDL Agreement. These restrictions and requirements
with respect to confidential information shall apply during the term of
this JDL Agreement and for a period of five (5) years after termination of
such five-(5) year term. Siemens and P-Com may disclose such confidential
information to those employees, consultants, customers, agents and
representatives having a need to know such confidential information, and
solely in furtherance of the purposes of this JDL Agreement, only if such
persons agree in writing in advance of disclosure receive and maintain the
same in confidence.
22.2 The obligations of this Article 22 with respect to confidential
information shall not apply to information which:
22.2.1 is known to or in the possession of the receiving Party or its
Subsidiaries prior to transmission by the disclosing party;
22
22.2.2 becomes available to the receiving Party from a source other than
the disclosing Party or is in or passes into the public domain
other than by breach of this JDL Agreement;
22.2.3 is developed independently by the receiving Party or its
Subsidiaries without use of the confidential information of the
disclosing Party; or
22.2.4 is authorized to be disclosed by the disclosing Party;
22.3 It shall not be a breach of these non-disclosure of confidential
information provisions where disclosure is made of confidential information
disclosed by the other Party to a governmental agency or body where failure
and refusal to disclose such information would result in violation of
applicable law.
22.4 The foregoing provisions and any other provision of this JDL Agreement
notwithstanding, each Party and its Subsidiaries shall have the right to
use and to continue to use at any time, including during the term hereof
and after termination or expiration of this JDL Agreement, without the
consent, license, or permission of the other Party or any accounting to the
other Party, any information (including confidential information) retained
in human memory by its employees, officers, or representatives;
"information retained in human memory" is information recalled without
assistance such as by refreshment of memory using notes or with the
assistance of other persons who also had access to such.
ARTICLE 23 - EXPORT CONTROLS
Each Party and its respective Subsidiaries shall comply with the applicable
export laws and regulations of the USA, Federal Republic of Germany and
other countries and obtain such licenses which are required, prior to
export or re-export of commodities and technical data and the results
thereof.
ARTICLE 24 - INCORPORATION OF APPENDICES
Attached to this JDL Agreement are the following APPENDICES:
1.3 Description of Engineering Documentation for Joint Products and
Improvements
1.12 Description of Manufacturing Documentation
1.16 PTM Transmission System
2.1.1 Initial Joint Products-list, description
2.1.2 Milestones for development of Initial Joint Products
2.1.3 Technical Specifications for the Joint Products
2.2 Additional Joint Products and Improvements- list, description,
Technical Specifications, obligations of the Parties,
milestones, method of funding, etc.
23
3.10.1 Approvals for which Joint Products will qualify (US and
Worldwide)
all of which are incorporated herein by this reference and constitute a
part of this JDL Agreement.
ARTICLE 25 - COUNTERPARTS
This JDL Agreement may be signed in three or more counterparts, each of
which is an executed original but all of which taken together shall
constitute only one instrument.
IN WITNESS WHEREOF, EACH PARTY HERETO HAVE CAUSED THIS JDL AGREEMENT TO BE
EXECUTED IN TRIPLICATE ORIGINALS BY IT'S DULY AUTHORIZED REPRESENTATIVES:
............(Place) ..........(Date) ............(Place) ..........(Date)
SIEMENS AKTIENGESELLSCHAFT P-COM, INC.
/s/ X. Xxxxx /s/ Xxxxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxx
..................................... .....................................
By: By: Xxxxxx X. Xxxxxxx
Title: Title: Chairman, President and Chief
Executive Officer
24
JDL APPENDICES
The following JDL APPENDICES are in this file:
1.3 Engineering Documentation
1.12 Manufacturing Documentation
2.1.1 Initial Joint Products
2.1.2 Initial Joint Product Milestones
2.2 Additional Joint Products
3.10.1 Approvals
The following JDL APPENDICES are stored as follows:
1.16 PTM Transmission System (stored as JDL116)
2.1.3 PTM: CPT ATM Support (stored as JDL213a)
Document No. 78086, Revision 0
P-Com/Siemens OC-3 Interface Module (stored as JDL213b)
Document No. 78087, Revision 0
APPENDIX 1.3 ENGINEERING DOCUMENTATION
Engineering Documentation includes all written information which P-Com retains
after production release of a product. This will vary based upon the type and
complexity of each particular assembly, but will at a minimum include all
documentation required by P-Com's ISO certified engineering process. Typical
Engineering Documentation consists of:
(a) Functional Requirements
(b) Design Specifications
(c) Logic and Schematic Diagrams
(d) PC Artwork
(e) Mechanical Drawings
(f) Parts Lists
(g) ASIC Masks
(h) Source Files for Programmable Logic
(i) Binary Programming Information for Programmable Parts
(j) Software Source Code
(k) Firmware Source Code
(l) Identity and revision of Hardware and Software tools
(m) Identity and Revision of Licensed or Purchased Software
(n) Engineering Notebook (notes from design reviews, meetings, and lab
tests)
(o) Conformance Test Plan
(p) Conformance Test Results
APPENDIX 1.12 MANUFACTURING DOCUMENTATION
Manufacturing Documentation includes all written information which P-Com retains
after production release of a product. This will vary based upon the type and
complexity of each particular assembly, but will at a minimum include all
documentation required by P-Com's ISO certified process. Typical Manufacturing
Documentation consists of:
(a) Parts Lists (including vendor specific part numbers and control
drawings with qualified vendor list for custom parts)
(b) PC Artwork and Associated Fabrication Drawings (including machine
readable form)
(c) Mechanical Fabrication Drawings
(d) Assembly Drawings
(e) ATE Program Description, Fixture Drawing, and Custom Component Library
(f) Schematic and Logic Drawings
(g) Firmware Source and Object Files
(h) Programming Information for Programmable Logic Devices
(i) Unit Test Specification
(j) Unit Test Procedures
(k) Unit Test Fixture Specification
(l) Unit Test Fixture Assembly Package (necessary data to fabricate and
maintain Unit Test Fixture)
(m) Procedure for transferring, controlling, and implementing Engineering
Change Orders
APPENDIX 1.16 -- PTM TRANSMISSION SYSTEM
[*]
[*] = 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.
[*]
[*] = 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.
APPENDIX 2.1.1 INITIAL JOINT PRODUCTS
[*]
[*] = 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.
APPENDIX 2.1.2 - INITIAL JOINT PRODUCT MILESTONES
Milestone Description [*]
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Technical Describes required functions and regulatory [*] [*] [*] [*] [*] [*]
Specifications compliance
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Design Review Verify conformance of paper design to Technical [*] [*] [*] [*] [*] [*]
specifications
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Hardware Initial hardware with software test routines [*] [*] [*] [*] [*] [*]
Prototypes
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Functional Integrated hardware and software which conforms [*] [*] [*] [*] [*] [*]
Prototypes to Technical Specifications
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Pre- Initial units through pilot manufacturing [*] [*] [*] [*] [*] [*]
Production process, includes manufacturing documentation and
Units manufacturing test procedures. Volume of 100 -
200 units per month suitable for field trials and
initial customer deployment.
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Production Production units which may be manufactured in [*] [*] [*] [*] [*] [*]
Units volume by Siemens or P-Com
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Appendix 2.1.3 - Initial Joint Product Technical Specification
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APPENDIX 2.2 ADDITIONAL JOINT PRODUCTS
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APPENDIX 3.10.1 REGULATORY COMPLIANCE
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[*] Safety Emissions
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[*] P/O Radio Modem P/O Radio Modem
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[*] UL 1950 FCC Part 15, Class A
CSA 22.2
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[*] EN 60950 ETS 300-385
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[*] UL 1950 FCC Part 15, Class A
CSA 22.2
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[*] EN 60950 ETS 300-385
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[*] UL 1950 FCC Part 15, Class A
CSA 22.2 ETS 300-385
EN 60950
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[*] P/O Hub P/O Hub
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