CADENCE CONFIDENTIAL Exhibit 10.15
CADENCE DESIGN SYSTEMS.
Professional Services Framework Agreement
Agreement No.:____________________
Effective Date: September 30, 1998
This Professional Services Framework Agreement (the "Agreement") is made and
entered into on the Effective Date between Cadence Design Systems Limited whose
registered office is at Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx, XX00 XXX, Xxxxxx
Xxxxxxx ("Cadence") of the one part and Philips Electronics North America
Corporation ("Philips Electronics") having its registered place of business at
1251 Avenue of the Americas, New York, USA, for the purpose of acting through
the business group, Flat Panel Display which is part of the worldwide Philips
component divisions, and also acting for and on behalf of Philips Flat Panel
Display Co. (Philips FPD) B.V. ("Philips FPD"), Xxxx. Xxxxxxxxx 0, Xxxxxxxx
XXX-X0, 0000 XX Eindhoven, The Netherlands and Who?Vision Systems, Inc.
("Who?Vision") having a principal place of business at 000 Xxxxx Xxxxxx Xxxxx,
Xxxx Xxxxxx, XX 00000, XXX of the other part (hereinafter jointly referred to as
the "Customer").
WHEREAS.
(A) Cadence has the right to use software products, design tools, and expertise
in the electronic design automation field, and is in the business of, among
other things, providing design consulting services utilising such products and
expertise to its customers.
(B) The Customer now wishes from time to time to engage Cadence to perform
certain design consulting services as may be agreed by Cadence in accordance
with the terms and conditions of this Agreement.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS,
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1. Definitions
In this Agreement unless the context otherwise requires the following words and
expressions shall have the following meanings:
"Circuit Blocks" shall be as defined in the Statement of Work.
"Confidential Information" means any information written or otherwise including
but not limited to the Licensed Technology disclosed in any medium by one party
to the other under this Agreement and marked or otherwise designated as
"Confidential" or is clearly by its nature confidential.
All references in this Agreement to the "Customer" shall be construed and
interpreted as follows:
a. Where the term is used in the context of an obligation, duty
or liability which is due or owing to Cadence, then Philips
Electronics, Philips FPD and Who?Vision Systems shall be
jointly and severally liable for the performance, discharge
and satisfaction of the obligation, duty or liability in
question; whereas
b. Where the term is used in the context of an obligation, duty
or liability which is due or owing to the Customer, then
Philips Electronics, Philips FPD and Who?Vision Systems shall
be treated for all purposes as though they were one
indivisible party to this Agreement."
"Deliverables" means the specific materials, devices, products or other
deliverables described as such in the Statement of Work;
"Effective Date" shall be deemed to be the date Cadence commenced the Services
which the parties acknowledge and agree is - March 1, 1998;
"IP Rights" means semiconductor topography rights, rights in mask works
including those conferred by the US semi conductor Chip Protection Xxx 0000 or
any modification or reenactment thereof, patents, copyrights, trademarks
(including service marks), trade secrets, design rights whether registered or
unregistered and including any application for registration of any of the
foregoing and all rights or forms of protection of a similar nature or having
equivalent or similar effect to any of these which may subsist anywhere in the
world;
"Innovation" means any invention development or innovation conceived or
developed by Cadence solely or jointly with Customer during the performance of
the Services and whether or not forming part of a Deliverable including but not
limited to formulas, algorithms, mechanical
and electronic hardware, electronic components, computers and their parts,
computer languages, programs and their documentation, methods, methodologies,
design flows, mask works, cell libraries, circuit blocks, encoding techniques,
articles, writings, compositions, works of authorship and improvements;
"Licensed Technology" means the information, materials and technology owned or
controlled by Customer which Cadence reasonably requires to perform the Services
and which shall be agreed between the parties such agreement not to be
unreasonably withheld or delayed;
"Payment Schedule" means the payment schedule set out in each Statement of Work
in respect of the provision of the Services;
"Project Schedule" means the timetable relating to the performance of the
Services set out in each Statement of Work;
"Services" means the services described in the Statement of Work;
"Residual Information" means expertise in the intangible form of generic
knowledge and know-how that is or may be retained in the minds of persons who
have had authorised access to Confidential Information of the other party,
including ideas, concepts or techniques contained therein.
"Statement of Work" means the description of the Services to be agreed hereunder
from time to time substantially in the form set out in Schedule 1 of this
Agreement.
"Subsidiary or Subsidiaries" means a company or companies in which another
company, its "holding company", a) holds a majority of the voting rights in it;
or b) is a member of it and has the right to appoint or remove a majority of its
board of directors; or c) is a member of it and controls alone, pursuant to an
agreement with other shareholders or members, a majority of the voting rights in
it, or if it is a subsidiary of a company which is itself a subsidiary of that
other company.
2. Services
2.1 Cadence shall perform the Services described and the training (if any) set
out in the Statement of Work in accordance with the terms and conditions of this
Agreement.
2.2 Cadence shall provide such resources and utilise such employees and/or
design consultants as it deems necessary to perform the Services. The manner and
means used by Cadence to perform the Services are in the sole discretion and
control of Cadence. All work shall be performed at Cadence's facilities unless
otherwise agreed in a Statement of Work.
2.3 Cadence shall perform the Services in accordance with the Project Schedule
set out in the Statement of Work, and Customer and Cadence agree to cooperate in
good faith to achieve completion of the Services in a timely and professional
manner. The Customer understands and agrees that Cadence's provision of the
Services will depend upon completion of certain Customer tasks set out and in
accordance with the Statement of Work and Project Schedule and that consequently
on the accuracy of information and data to be provided by Customer and any third
parties to the extent it is Customers obligation, the Statement of Work and the
Project Schedule may require adjustments or changes in the event that such
Customer tasks or the time scales for their performance change, are modified, or
are not completed as anticipated. Cadence shall bear no liability or otherwise
be responsible for delays in the provision of the Services or any part thereof
caused by the Customer's failure to complete a Customer task or adhere to the
Project Schedule.
2.4 In performing the Services, Cadence shall design, develop and/or make for
the Customer the Deliverables. In the event that Customer provides Cadence with
specifications for such Deliverables, and these specifications are referenced in
a Statement of Work, Cadence shall (subject to Clause 2.3) ensure that the
Deliverables meet such specifications. The only deviations from the
specifications that will be allowed will be those deviations that do not
negatively affect purpose, form, and/or function of the Deliverables.
2.5 Customer acknowledges and agrees that the performance of Services or the
timely delivery of Services by any third party foundry selected by either or
both parties shall be dependent upon and subject to Customer's responsibilities
and the project dependencies and assumptions set out in the Statement of Work.
3. Management of Prototype, Ramp Up and Production
In the event Customer wishes Cadence to perform or manage prototype, ramp up and
production of ICs ("IC") as more fully set out in the Statement of Work, Cadence
agrees to work with Customer and a third party foundry (to be agreed upon
between the parties) to implement the design prototype and production of ICs by
managing the prototype fabrication process, ramp up and full production of ICs.
Customer shall directly contract with the foundry selected by Customer and
Cadence. Cadence and Customer acknowledge and agree that Customer is not
representing, and Cadence is not responsible for directly contracting with the
foundry for finished semiconductor products.
4. Services Fees and Expenses
4.1 In consideration of Cadence performing the Services the Customer undertakes
to pay Cadence the fees and royalties (if any) set out in accordance with and in
the manner described in the Payment Schedule. Customer shall also reimburse
Cadence for actual, reasonable travel and
out-of-pocket expenses incurred for any Services that are performed away from
Cadence facilities to the extent agreed by the parties in the relevant Statement
of Work.
4.2 In order to provide additional incentive to Cadence in performance of the
Services, the Statement of Work may provide for certain milestone events,
achievement of which by Cadence shall trigger the obligation by the Customer to
pay the applicable milestone payment as listed in the Payment Schedule.
Accordingly upon achievement of the application milestone as agreed between the
parties, Cadence shall provide to the Customer a statement showing achievement
of the milestone and an invoice for the amount of the milestone and an invoice
for the amount of the applicable milestone payment in accordance with Clause 4.3
below.
4.3 The amounts payable to Cadence pursuant to this Agreement are exclusive of
any Value Added Tax, sales or use, deductions, withholding or other taxes or
governmental charges. The Customer shall be responsible for payment of all such
taxes or charges except for any taxes based solely upon Cadence's net income.
5. Invoicing and Payment
Cadence shall invoice the Customer for the fees and royalties (if any) upon the
date on which such sums become payable for Services owing and expenses. All
invoices shall be due and payable when invoiced, and shall be deemed overdue if
they remain unpaid sixty (60) days after they become payable. Overdue amounts
shall accrue interest at the rate of one (1) per cent per month, or at the
highest legal interest rate, if less. If the Customer's procedures require that
an invoice be submitted against a purchase order before payment can be made, the
Customer shall be responsible for issuing such purchase order thirty (30) days
before the payment due date.
6. Intellectual Property Rights
6.1 In providing the Services, Cadence will exercise and utilise certain of its
pre-existing IP Rights and certain of Customer IP Rights, which shall be
identified in the Statement of Work. All pre-existings IP Rights that are owned
or controlled by a party at the commencement of this Agreement shall remain
under the ownership or control of such party throughout the term of this
Agreement and thereafter. Except as otherwise expressly provided, neither this
Agreement, nor the provision of the Services hereunder, shall give either
Cadence or the Customer any rights of ownership in or to the pre-existing IP
Rights of the other party, or, with respect to the IC fabrication, ramp up or
full production, the IP Rights of third parties. Customer also warrants that it
has all necessary consents, permissions, licences and authority to allow Cadence
to use any IP Rights or Licensed Technology, which have to be provided by or on
behalf of the Customer, to the extent related to those items set out in the
Statement of Work.
6.2 The Customer shall own and be assigned ownership rights to any and all
Innovations, and the IP Rights subsisting therein, that derive solely and
directly from the Licensed Technology, and/or the Customer IP Rights therein.
Cadence shall retain all ownership rights to all Innovations, and all IP Rights
subsisting therein that derive solely and directly from Cadence's proprietary
information, materials and/or IP Rights.
6.3 To perfect ownership of IP Rights, each party hereby agrees to assign to the
other all rights it may have in those Innovations to be owned by the other as
provided in Clause 6.2 above, and to assist and cooperate with the other party
in all reasonable respects, and execute all documents and, subject to reasonable
availability, and take all further acts reasonably necessary to acquire,
transfer, maintain, and enforce such IP Rights.
6.4 Innovations which are based upon (i) both Cadence Technology and/or Cadence
IP Rights and Licensed Technology and/or Customer IP Rights, or (ii) neither
Cadence Technology, Licensed Technology, Cadence IP Rights nor Customer IP
Rights shall be jointly owned by Cadence and Customer (collectively, "Joint
Innovations"). All Joint Innovations shall be owned in equal undivided interests
by Cadence and Customer. Cadence and Customer shall: (i) execute any and all
documents necessary to effect such equal and undivided interests to Joint
Innovations, and (ii) have the right to freely use, exploit, protect, maintain,
license, transfer and enforce its rights to Joint Innovations with no royalty
payment or accounting to the other party, provided each party shall bear its
portion of Joint Costs (defined below). Each party hereby forever waives and
releases any right each has or will have in the future to require any
accounting, sharing or payment of profits from the other in connection with the
Joint Innovations. Cadence and Customer will: (a) reasonably cooperate with the
other party with respect to providing information and preparing and filing any
documents necessary, including patent applications to secure their rights with
respect to Joint Innovations; (b) jointly share expenses incurred in securing
rights such as those associated with obtaining and maintaining patents,
copyrights, mask works or similar rights with respect to Joint Innovations
("Joint Costs"). If one party elects not to seek or secure such rights on Joint
Innovations in any particular country or not to share equally in the expense
thereof, the other party will have the right to seek and maintain such
protection at its own expense and shall have full control over the prosecution
and maintenance thereof, even though title and any IP Rights arising from Joint
Innovations will be joint. Any party filing or receiving documents related to
the prosecution or issuance of any IP Rights arising from Joint Innovations will
provide copies of such documents to the other party promptly after filing or
receipt; and (c) maintain the confidentiality of Joint Innovations which are
trade secrets and which have not become the subject of a published patent in the
same manner as a party protects its own trade secrets and confidential
information with a degree of care that is at least reasonable.
6.5 Cadence agrees that notwithstanding any provision contained in this Clause 6
it will not for a period of [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx]
use the Circuit Blocks and Innovations of such Circuit Blocks developed
specifically for this design [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx] The list
of Circuit Blocks will be as identified by the parties in writing in an IP Log
throughout the course of the Project.
For the avoidance of doubt, in the event that Cadence is invited to engage in
assisting another customer to design a fingerprint sensor IC, Cadence agree that
it will follow a process similar to that followed with Customer where,
notwithstanding the fact that specification development is performed jointly
with the customer, the specification will be driven by and solely owned by the
customer. The final customer device specification will then be used to determine
which circuit blocks are required.
7. License Grant
7.1 Customer agrees to provide to Cadence with the Licensed Technology and
hereby grants to Cadence a royalty-free, non-exclusive, world-wide licence to
use and practise the Licensed Technology, and all IP Rights subsisting therein,
solely for the term of this Agreement and for the exclusive purpose of Cadence
performing the Services of the Customer. Customer represents that to the extent
Customer provides to Cadence hereunder any IP Rights covering such Licensed
Technology that it has obtained all necessary permissions, licences, consents
and has the authority to provide such technology to Cadence. At the prior
written request of Cadence, and following the agreement of both parties, the
Customer shall obtain for Cadence the right to use, for the purpose of
performing the Services, such third party information, materials and technology,
and the IP Rights therein, as Cadence reasonably requires in order to perform
the Services.
7.2 Subject to payment in full of the amounts to which Cadence is entitled
hereunder and compliance with the terms of this Agreement Cadence hereby grants
to Customer a worldwide, non-exclusive, perpetual, fully paid licence to use any
Cadence IP Rights and Cadence owned Innovation incorporated in the Deliverables
to the extent necessary to permit the Customer to make, have made, use, sell and
modify the Deliverables for the purposes set forth in the Statement of Work and
utilising the process technology described in the Statement of Work.
7.3 Cadence is not providing or licensing to the Customer any existing Cadence
electronic design automation software programs or products under this Agreement.
The Customer may acquire licences for such Cadence products only under the terms
of a separate software licence agreement.
[Confidential Treatment requested for redacted portion of document]
8. Limited Warranties and Exception.
8.1 Cadence warrants that the Services provided hereunder, which specifically
exclude those services to be provided by any third party foundry or other
contractor engaged by the Customer, will be performed in a professional manner
and the Deliverables will be provided in accordance with the specifications
pursuant to the provisions of Clause 2.4 and that Cadence personnel will be
appropriately skilled or qualified for the tasks assigned to them.
8.2 WITH DUE REGARD TO THE WARRANTY PROVIDED IN CLAUSE 8.1 ABOVE, IT IS
UNDERSTOOD THAT THE WARRANTY ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
SATISFACTORY QUALITY, AND FITNESS FOR ANY PARTICULAR PURPOSE (OTHER THAN FOR THE
PURPOSE SPECIFICALLY REFERRED TO IN SPECIFICATION REFERENCED IN THE STATEMENT OF
WORK) WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT
PERMISSIBLE BY LAW.
8.3 In order to receive warranty remedies, deficiencies (being a deviation from
the specifications referenced in the Statement of Work that does not negatively
affect the purpose, form and/or function of the Deliverable) in the Services,
which exclude the services to be provided by any third party foundry or other
contractor engaged by the Customer, must be reported to Cadence in writing as
soon as reasonably practicable and, in any event, within 120 days of completion
of the Services. The Customer shall not make any additions, deletions or
modifications to the Deliverables except as specifically set forth in this
Agreement or as authorised in writing by Cadence. The Customer's sole remedy
shall be, at Cadence's option, to have such deficiencies remedied as set forth
in the Statement of Work or to receive a refund of the pro rata amount of the
fees allocable to such Services. For the avoidance of doubt, both parties
acknowledge and agree that modification of the Deliverables by Customer in
accordance with Clause 8.2 above shall cause immediate termination of any
applicable warranty as set out above.
9. Indemnification.
9.1 Cadence hereby agrees to indemnify, defend and hold Customer, its
affiliates, and their respective officers, directors, employees, and agents
("Customer Indemnitees") harmless from and against any and all liabilities,
losses, damages, costs and expenses ("Losses"), and any reasonable attorney's
fees and expenses relating to its defence, resulting from any suit or action
brought against the Customer Indemnitees due to (a) any injuries suffered by
Cadence employees except for injuries caused by gross negligence or intentional
harm of Customer or its employees or agents, of (b) infringement of any third
party patent, copyright, trade secret or other intellectual property right due
to the (i) use or practice by the Customer Indemnitees of any
Cadence owned Innovations or IP Rights incorporated in the Deliverables, the IP
Rights of Cadence claiming or covering the Cadence owned Innovations, third
party materials, information or technology or any IP Rights subsisting therein
supplied by Cadence, or any other information disclosed by Cadence to Customer
hereunder; and (ii) the misuse of any Licensed Technology, Customer IP Rights
other than as permitted for the purpose of performing the Services; provided
that the Customer Indemnitees shall follow the indemnification procedure in
Clause 9.3.
9.2 Customer hereby agrees to indemnify and hold Cadence, its affiliates, and
their respective officers, directors, employees, and agents ("Cadence
Indemnitees") harmless from and against any and all Losses, and reasonable
attorney's fees and expenses relating to its defence, resulting from any suit or
action brought against any of the Cadence Indemnitees due to (a) any injuries
suffered by Customer employees, except for injuries caused by gross negligence
or intentional harm of Cadence of its employees or agents, or (b) infringement
of any third party patent, copyright, trade secret or other intellectual
property right due to the (i) use or practice by the Cadence Indemnitees of the
Licensed Technology, any third party IP Rights incorporated in the Deliverables,
the IP Rights of Customer claiming or covering the Licensed Technology, third
party materials, information or technology or any IP Rights subsisting therein
supplied by Customer, or any other information disclosed to Cadence by Customer
hereunder; and (ii) the use or practice by the Customer Indemnitees of the
Deliverables as modified by the Customer; and (iii) the misuse of any Cadence
Technology, Cadence IP Rights or Cadence Innovations incorporated in the
Deliverables other than as permitted in accordance with Clause 7.2 above; and
(c) Cadence's use or practice of the Licensed Technology and Customer's IP
Rights or reliance on Customer's directions or instructions in providing the
Services related to the implementation of or arrangement for the prototype, ramp
up or full production of the IC; provided that the Cadence Indemnitees shall
follow the indemnification procedure in Clause 9.3.
9.3 If any claim or action is commenced against a party entitled to
indemnification under this Section for Losses resulting from such claim or
action (a "Claim"), such party shall give written notice to the other party
within ten (10) days of notice of such Claim. If such party receiving notice is
obligated under this Clause 9 to defend the party against such Claim, then the
indemnifying party shall take control of the defense and investigation of the
Claim, using such attorneys and other assistance as it selects in its
discretion. The indemnified party shall cooperate in all reasonable respects in
such investigation and defense, including trial and any appeals, provided that
such party may also participate, at its own expense, in such defense. No
settlement of a Claim that involves a remedy other than payment of money by
indemnifying party shall be agreed to and entered without the consent of the
indemnified party, which consent shall not be unreasonably withheld.
10. Limitations on Liability
10.1 Nothing in this Agreement shall have the effect of excluding or limiting
either party's liability for death or personal injury caused by negligence nor
will it apply to any breach of any obligations which may be implied by section
12 of the Sale of Goods Xxx 0000 or by section 2 of the Supply of Goods and
Services Xxx 0000.
10.2 The parties' maximum aggregate liability for damage to the other party's
tangible property shall not exceed US $100,000.
10.3 Subject to the remaining sub-sections of this Clause 10, the parties'
aggregate liability under this Agreement for all causes of action arising in
respect of any particular Service or Deliverable, including the Indemnities
given in Clause 9.1 and 9.2, shall not exceed the total amount actually paid by
Customer under this Agreement provided that nothing in this Clause 10 shall have
the effect of excluding or limiting the liability for death, personal injury or
intentional breach of confidentiality.
10.4 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL,
CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING BUT
NOT LIMITED TO LOSS OF PROFITS, CONTRACTS, GOODWILL OR INTERRUPTION OF BUSINESS
HOWSOEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT NEGLIGENCE, OR
OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ANY
REMEDY SET FORTH IN THIS AGREEMENT.
11. Confidentiality and Non-Use
11.1 By virtue of this Agreement, each party hereto may disclose to the other
party information that is confidential and otherwise proprietary. Such
Confidential Information shall be governed by the terms of this Clause 11 and
shall supersede any previous agreements regarding the exchange of Confidential
Information.
11.2 Each party agrees, for the term of this Agreement and for five (5) years
after its expiration or termination, (i) to hold the other party's Confidential
Information in strict confidence, (ii) not to disclose such Confidential
Information to third parties not authorised by the disclosing party to receive
such Confidential Information, (iii) to disclose such Confidential Information
only to its employees with a need to know such Confidential Information and who
are placed under express obligations of confidentiality and (iv) not to use such
Confidential Information for any purpose except as expressly permitted
hereunder. Each party agrees to take reasonable steps to protect the other
party's Confidential Information to ensure that such Confidential Information is
not disclosed, distributed or used in violation of the provisions of this
Agreement. The foregoing
prohibition on disclosure of Confidential Information shall not apply to the
extent that the Confidential Information is (a) required to be disclosed by the
receiving party as a matter of law or by order of a court, provided that the
receiving party uses reasonable efforts to provide the disclosing party with
prior notice of such obligation to disclose and reasonably assist in obtaining a
protective order therefor (b) is or becomes a part of the public domain through
no act or omission of the other party or was otherwise available to the public
other than by breach of this Agreement; or (c) was in the other party's lawful
possession prior to the disclosure and had not been obtained by the other party
either directly or indirectly from the disclosing party; or (d) is lawfully
disclosed to the other party by a third party without restriction on disclosure;
or (e) is independently developed by the other party without access to the
Confidential Information; or (f) is reasonably required by Customer to complete
financing transactions and to satisfy SEC disclosure requirements; or (g) is
reasonably required to be disclosed to Customer's customers and OEM's provided
that in such case it shall obtain the prior written approval of Cadence which
approval shall not be unreasonably withheld.
11.3 Subject to the provisions of Clauses 6 and 7 above, within fifteen (15)
days of the receiving party's receipt of the disclosing party's written request
for the return of Confidential Information, or the completion of the Services
hereunder, all of the disclosing party's Confidential Information and all copies
thereof in the receiving party's possession or control shall be returned to the
disclosing party or destroyed by the receiving party at the disclosing party's
instruction. The receiving party shall then certify the same in writing and that
no copies have been retained by the receiving party, its employees or agents.
11.4 All of the parties acknowledge and agree that each party and its respective
employees may utilise for any purpose any Residual Information resulting from
performing the Services.
11.5 Each party acknowledges that unauthorised disclosure or use of the
Confidential Information may cause irreparable harm to the original disclosing
party for which recovery of monetary damages would be inadequate, and that the
original disclosing party shall therefore be entitled to obtain timely
injunctive relief to protect its right under this Agreement in addition to any
and all remedies available at law.
11.6 Nothing in this Clause 11 shall limit the party's right to independently
develop information, materials, technology, or other products or services for
itself or for others which may compete with the other party so long as no
unauthorised disclosures have been made by the party during the term of the
confidentiality obligation. Further, nothing in this Clause 11 shall prevent the
party from having developed, or may be in the process of developing information
similar to the Confidential Information.
12. Right to Perform Consulting Services For Others
Subject to Cadence's compliance with the confidentiality provisions of this
Agreement, nothing in this Agreement shall restrict or limit (a) Cadence from
performing design consulting or other services to any other entity in any
industry, including the semiconductor and electronics industries, and (b)
Cadence's and its employees' ability to provide design consulting services
similar in nature to the Services for any third parties both during and after
the term of this Agreement.
13. Term and Termination
13.1 This Agreement commences on the Effective Date and, unless terminated
earlier pursuant to the terms of this Agreement, shall continue in force until
the Services have been completed.
13.2 This Agreement may be terminated by Cadence forthwith (a) if the Customer
defaults in the timely payment of any monies due to Cadence and fails to cure
such breach within thirty (30) days from the date of receipt by the Customer of
any notice of such breach (b) in the event of the insolvency, bankruptcy,
reorganisation assignment for the benefit of or composition with creditors of
the Customer or if the Customer has a receiver, manager, administrative receiver
or similar officer appointed to the whole or part of its assets or a resolution
is passed for its winding up (other than for the purpose of a bona fide
amalgamation or reconstruction) or an order is made for its winding up,
dissolution or liquidation (c) if the Customer is unable to pay its debts within
the meaning of Section 123 of the Insolvency Xxx 0000 or (d) if the Customer
ceases or threatens to cease or carry on its business.
13.3 This Agreement may be terminated by either party upon thirty (30) days
prior written notice if the other party materially breaches or fails to perform
any material term hereof and, in the case of a breach which is capable of
remedy, fails to cure such breach within such thirty (30) day period.
13.4 Each party's obligations under Clauses 6, 7, 8.2, 9, 10, 11, 12, 13, 14, 15
and 16 of the Agreement shall survive termination or expiration of the
Agreement. Within thirty (30) days of termination of this Agreement for any
reason, Cadence shall submit to the Customer an itemised invoice for any fees or
expenses accrued and unpaid under this Agreement prior to the date of such
termination. If Cadence terminates the Agreement by reason of the default of the
Customer to pay any amounts owing hereunder, the rights of the Customer to use
the Deliverables including any express or implied licenses which may have been
granted herein shall immediately terminate.
14. Independent Contractors
Cadence shall perform the Services as an independent contractor, and nothing
contained in this Agreement shall be construed to create or imply a joint
venture, partnership, principal-agent or employment relationship between the
parties. Neither party shall take any action or permit any action to be taken on
its behalf which purports to be done in the name of or on behalf of the other
party and shall have no power or authority to bind the other party to assume or
create any obligation or responsibility express or implied on the other party's
behalf or in its name, nor shall such party represent to any one that it has
such power of authority.
15. Governing Law
This Agreement will be governed by and construed in accordance with the laws of
England. This Agreement is prepared and executed and shall be interpreted in the
English language only, and no translation of the Agreement into another language
shall have any effect.
16. Dispute Resolution
16.1 The parties shall attempt in good faith to resolve any dispute arising in
connection with this agreement informally according to the following procedure.
Upon written request of a party identifying a dispute to be resolved (the
"Notice of Dispute"), each party will designate an executive officer with the
responsibility and authority to resolve the dispute. The designated officers
shall meet preliminary within fifteen (15) days after the request is received
from the requesting party. At this first meeting, the designated officers shall
identify the scope of the dispute and the information needed to discuss and
attempt to resolve the dispute. These officers shall then gather relevant
information regarding the dispute and shall meet to discuss the issues and
negotiate in good faith to resolve the dispute. Such second meeting shall occur
within fifteen (15) days of the first meeting.
16.2 If the parties have not settled the dispute by the method set out in Clause
16.1 above within 42 days from the Notice of Dispute, the dispute shall be
referred to and finally resolved by arbitration under the Rules of the
International Chamber of Commerce which rules are deemed to be incorporated by
reference in to this Clause 16. Arbitration shall be conducted in Amsterdam in
the English language.
16.3 This Clause 16 shall not apply to any failure by the Customer to make the
payments due under the Agreement.
16.4 For the avoidance of doubt, nothing in this Clause 16 shall prevent either
party seeking interim injunctive relief from a court of appropriate
jurisdiction.
17. General
17.1 Notices. Notices to be given or submitted by either party to the other
pursuant to this Agreement shall be in writing and directed in the case of the
Customer to the addresses of each of Philips Electronics, Philips FPD and Who?
Vision set out above, and in the case of Cadence, to: Xxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx, XX00 OPH Att: Legal Department. All notices which are required to be
given hereunder may be delivered personally or by air mail prepaid letter or
facsimile and shall be deemed to have been served if by hand when delivered, if
by air mail post seventy two hours after posting and if by facsimile
transmission when dispatched provided that the transmission report shows the
correct number.
17.2 Severability. If any term or provision of this Agreement is determined to
be invalid or unenforceable for any reason, it shall be adjusted rather than
voided, if possible, to achieve the intent of the parties to the extent
possible. In any event, all other terms and provisions shall be deemed valid and
enforceable to the maximum extent possible.
17.3 Force Majeure. Neither party shall be liable for any loss or damage,
arising from delay due to causes beyond its reasonable control.
17.4 Assignment. Neither party shall assign, delegate, or subcontract any
portion of its rights, duties, or obligations under this Agreement without the
other party's prior written consent which shall not be unreasonable withheld or
delayed. As used in this Agreement, an assignment shall include but not be
limited to: (1) any dissolution, merger, consolidation, or other reorganisation
of or affecting the Customer, whether or nor the Customer is the surviving
corporate entity; and (2) the sale or transfer, by one or more transactions, of
shares possessing more than fifty per cent (50%) of the total combined voting
power of all classes of the Customer's share capital issued, outstanding and
entitled to vote for the election of its directors.
17.5 Export Administration. If any Deliverables are for use outside the U.S.A.,
the parties mutually agree to comply fully with all relevant regulations of the
U.S. Department of Commerce and with the U.S. Export Administration Act to
ensure that such are not exported in violation of United States Law and to
comply fully with any other regulations or laws relating to such export or
import into another country. The Customer shall be responsible for any duties,
customs charges or other taxes or fees relating to such export.
17.6 Complete Agreement. Both parties acknowledge that they have read,
understood and agree to be bound by this Agreement and that this Agreement
including Statements of Work agreed from time to time under the terms of this
Agreement is the complete and exclusive statement of the agreement between the
parties regarding the subject matter hereof, which supersedes all proposals,
oral or written, and all other communications between the parties relating to
such subject matter. Each party acknowledges that is has no action for any
representation by the other party or made on the other party's behalf but
nothing in this Agreement shall limit any rights of the Customer in respect of
any fraudulent misrepresentation.
17.7 Modification. Both parties agree that any terms and conditions of any
purchase order or other instrument issued by either party in connection with the
Agreement that are in addition to or inconsistent with the terms and conditions
of this Agreement shall be of no force or effect. This Agreement may be modified
only by a written instrument duly executed by an authorised representative of
Cadence and Customer.
17.8 Waiver. The failure of a party to enforce any provision of this Agreement
shall not constitute a waiver of such provision or the right of such party to
enforce such provision or any other provision.
17.9 Conflict. If there is any conflict between the terms of the body of this
Agreement and the Statement of Work or the terms of any subsequent attachment
hereto, the terms of the body of this Agreement shall prevail.
17.10 The provisions of this Agreement shall not be binding on Who? Vision until
such time as it enters into a Technology Transfer Agreement, in writing until
with Philips FPD.
In Witness Whereof, the parties hereto have executed this Agreement on the
Effective Date.
For and on behalf of Philips Electronics by:
Signature: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Chairman & CEO Flat Displays
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Date: 9/20/98
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For an on behalf of Who? Vision by:
Signature: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: CEO
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Date: 9/30/98
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For and on behalf of Cadence by:
Signature:
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Name:
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Title:
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Date:
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