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EXHIBIT 10.9
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THE ITEMS MARKED BY TWO ASTERISKS ** HAVE BEEN OMITTED FROM THIS FILING AND
HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT NO. TA-3727
ASIS DEVELOPMENT/PURCHASE CONTRACT
THIS AGREEMENT ("Agreement") is made this 1st day of September 1998, by and
between SensoNor asa, a Norwegian corporation, ("Supplier") and TRW Inc.
("TRW") an Ohio, USA corporation acting on behalf of its Automotive Electronics
Group, North America, 00000 Xxxxxxxx Xx., Xxxxxxxxxx Xxxxx, XX 00000-0000
("AEG") and SmarTire Systems Inc., a British Columbian corporation having a
place of business at 00000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx X0X 0X0 ("SmarTire").
OVERVIEW
Supplier is in the business of developing and manufacturing, among other
things, application specific integrated sensors ("ASISs");
Supplier wants to develop an ASIS (AEG part number 152008, Specification Doc#
152008 Tire Pressure Sensor) for AEG and SmarTire and to sell such ASISs to AEG
and SmarTire;
AEG and SmarTire want Supplier to develop an ASIS for AEG and SmarTire; and
If Supplier's ASIS is acceptable, AEG and SmarTire will buy the ASISs from
Supplier upon the terms set forth herein.
Therefore, in consideration of the mutual provisions of this Agreement, the
Parties agree as follows:
1. DEFINITIONS: As used in this Agreement, the following terms will have the
following meanings:
(A) "Product" will mean the ASIS (AEG part number 152008) developed under
this Agreement.
(B) "Specifications" will mean the technical outline of the Product,
including block diagrams, circuit schematics, die size, net list, test
vectors, layout, simulation results, screening requirements, packaging
information, and any other information required to manufacture the
Product, and the performance and test requirements for the Product.
The Specifications are designated by AEG as document number 152008 and
part number
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152008.
(C) "Concept Verification Units" ("CVs") will mean quantities of the
Product which have undergone functional testing and characterization
as agreed by AEG, Smartire, and Supplier, and which will be used to
verify the concept of the Product.
(D) "Design Verification Units" ("DVs") will mean quantities of the
Product made on qualified production equipment and processes which
have undergone testing as agreed to by AEG, SmarTire and Supplier and
which will be used to verify the aftermarket design and
manufacturability of the Product.
(E) "Production Verification Units" ("PVs") will mean quantities of the
Product made on the qualified production equipment and processes and
which have undergone testing as defined in the Specification.
(F) "Schedule" will mean the development schedule set out in Attachment A
and corresponding payment milestones set out in Section 4(a).
(G) "Product Database" will mean the database[s] which contains any
information pertaining to a Product in the possession of Supplier on
any media (including but not limited to documents, magnetic tape,
film, and other media) to create, process, verify, and test the
Product. The Product Database will include the Specifications and all
physical data in a database format necessary to manufacture the
Product, bonding diagrams, pin outs, electrical specifications, and
part marking specifications.
(H) "Tape Out" means the date on which the design of all components of
the Product is complete, has been digitized in an electronic format
and is otherwise ready for the commencement of the preparation of
masks for the particular components of the Product.
2. SPECIFICATIONS
(A) AEG Obligations: AEG has submitted to Supplier a written description
representing the initial version of the Specifications, a copy of
which is attached hereto as Attachment E.
(B) Supplier Obligations: Supplier will use the initial version of the
Specifications supplied by AEG and modify the Specifications as
necessary and submit them to AEG for approval.
(C) Production: The AEG part number and the associated Specifications,
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when approved by AEG, will be referenced on the purchase orders
("POs") issued by AEG and SmarTire for production quantities of the
Product. Supplier acknowledges that AEG and SmarTire will incorporate
the Products into tire monitoring systems for motor vehicles and,
therefore, the Products require the highest level of quality and
conformance to Specifications and other requirements.
3. SUPPLIER/AEG DEVELOPMENT RESPONSIBILITIES
(A) Supplier: Time is of the essence in Supplier's performance of it's
obligations under this Agreement. Supplier will, in accordance with
the Schedule (Attachment A):
(1) Supply design tools for completion of design. Fully describe the
design tools and tool flow. Provide technical support during
development.
(2) Supply application and technical support to evaluate design
during development. Design any cells which are not available or
which cannot be constructed from existing cells and perform
layout.
(3) Generate test programs for functional test. Describe test
methods, tools, and fixtures.
(4) Conduct regular design reviews during the development process
according to the Schedule (the location of these design reviews
will be as agreed between AEG, SmarTire, and Supplier). These
reviews will be held to ensure problems are resolved and review
action item status and schedule conformance.
(5) Submit to AEG and SmarTire a final release package containing (i)
layout, (ii) circuit specifications, (iii) schematic diagram,
(iv) results of simulations, and (v) packaging information.
(6) Produce 450 plastic packaged CVs to be used for concept
verification, 1000 DVs to be used for aftermarket production
validation, and 1500 PVs to be used for OEM production
validation. CVs, DVs, and PVs will be fully functional as per the
Specification, and will be assembled in the package defined in
the Specifications. If the CVs, DVs or PVs do not meet the
Specifications, Supplier will rework the CVs, DVs, or PVs (as the
case may be) at Suppliers expense. If AEG orders more than 450
CVs, 1000 DVs, and/or 1500 PVs, Supplier will deliver such
additional CVs, DVs, and/or PVs within four (4) weeks after
receipt of order, subject to Suppliers limited production
capabilities.
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(7) Perform mask fabrication, wafer fabrication, CV and DV
assembly and testing.
(8) Supply test fixtures, equipment, and personnel for Product
testing.
(9) Complete production hardware/software as specified in the
Specification.
(B) AEG: AEG will, in accordance with the Schedule (Attachment A):
(1) Support the design reviews.
(2) Cooperate with SmarTire to submit to Supplier the initial
version of the Specification, including the test requirements.
(3) Submit to Supplier the TRW Supplier Development Manual (the
"Supplier Development Manual"), which will govern the terms of
the development of the Product.
(C) SmarTire: SmarTire will, in accordance with the Schedule
(Attachment A):
(1) Support the design reviews.
(2) Cooperate with AEG to submit to Supplier the initial version
of the Specification, including the test requirements.
(D) Project Organization: The business and technical contacts of the
three parties are specified in Attachment B.
4. DEVELOPMENT PRICING
Development Price: AEG and SmarTire will pay to Supplier the following
amounts (collectively, the "Development Price") for all development
work performed by Supplier under the Agreement:
AEG **
SmarTire **
The Development Price includes all charges for Product to be
delivered by Supplier under the provisions of Section 3. Supplier
will invoice AEG and SmarTire for milestone payments according to
the following schedule:
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DEVELOPMENT MILESTONES PAYMENT
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Signing of the Agreement [**]
After Tape Out of the Product [**]
After completion of DVs that meet the Specification [**]
Delivery of PVs that meet Specifications [**]
(B) Price of Additional Samples: Supplier will supply the first 450 CVs
to AEG and SmarTire without charge. If AEG and SmarTire require more
than 450 CVs, AEG and SmarTire will pay $[**] U.S. for
each additional CV. AEG and SmarTire will pay Supplier $[**]
for each DV and PV purchased hereunder.
5. PURCHASE ORDERS
(A) Requirements: Competitiveness: If the Product developed hereunder
performs to the satisfaction of AEG and SmarTire, then AEG and
SmarTire will purchase its requirements for the Product from
Supplier, subject to Supplier being and remaining competitive in
terms of price, quality, delivery, service, technology, and terms of
sale. However, this obligation is not, and will not be construed
as, (a) a representation that AEG or SmarTire will have any
particular requirements for the Product, or (b) a proscription
against AEG or SmarTire purchasing from another company next
generation pressure sensors (with or without on-board ASICs or
microcomputers) or pressure sensors for other applications. If
Supplier is competitive in supplying the Product, then TRW and
SmarTire will give Supplier an opportunity to competitively quote on
the next generation of pressure sensors.
(B) Purchase Orders: If AEG has requirements for the Product, AEG will
issue POs and/or shipping releases to Supplier from time to time to
satisfy such requirements. Such purchases will be subject to the TRW
Terms and Conditions of Purchase set forth in the TRW Automotive
North America Supplier Information Package, October 1998, attached as
Exhibit 1 ("the AEG Terms and Conditions"). In case of conflict
between the terms of this Agreement and the AEG Terms and Conditions,
the terms of this Agreement will prevail.
(C) Authorizations: POs and releases issued pursuant to POs will
reference this Agreement and will specify the AEG and/or SmarTire
part number for the Product, the quantity ordered, the delivery due
dates, the purchase price, the transportation requirements, and the
invoice instructions. POs and releases will also include a 'shipping
authorization', a 'fabrication
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authorization', and a 'raw material procurement authorization'. 'Shopping
authorizations' will authorize Supplier to ship specified quantities of
Products for arrival at the location designated by Buyer on specified due
dates. 'Fabrication authorizations' will authorize Supplier to manufacture
specified quantities of Products. 'Raw material procurement
authorizations' will authorize Supplier to procure the necessary raw
materials for specified quantities of Goods. POs and releases will be
Supplier's only authorization to manufacture and ship Products to AEG and
SmarTire in production quantities.
AEG normally will issue releases weekly, with each release including a
four week fabrication authorization, an additional eight week raw material
procurement authorization, and a six month rolling forecast of future
orders.
Forecast quantity estimates set forth on AEG's POs or releases are for
planning purposes only and do not constitute a commitment by AEG to
purchase such quantities.
(D) Acknowledgment: Supplier will acknowledge all POs and releases received
from AEG and SmarTire. Failure of Supplier to acknowledge receipt of the
PO or the releases will constitute acceptance by Supplier.
(E) Testing/Screening: Supplier will test all Products supplied pursuant to
POs and releases as specified in the Specifications. Supplier will deliver
Products which have been qualified to CDF-AEC-Q100 and any additional test
requirements established by the Specifications.
(F) Purchases of Products by SmarTire: SmarTire will purchase Products from
Supplier, and Supplier will sell Products to SmarTire, at prices and upon
other terms and conditions that are the same as the terms and conditions
of purchase and sale set forth in this Agreement with respect to AEG. Such
purchases by AEG and SmarTire will be independent of one another, however,
and neither AEG or SmarTire will be responsible for the performance of the
other hereunder. Further, a breach of this Agreement by one of AEG and
SmarTire will not diminish or otherwise affect the responsibility of
Supplier under this Agreement with respect to the other of AEG and
SmarTire.
(g) Noncompetitiveness: If Supplier is noncompetitive, AEG and/or SmarTire, as
the case may be, ("Purchaser") will provide written notice thereof to
Supplier. Such notice will identify and describe the non-competitiveness
giving rise to the notice.
Within thirty (30) days after receipt of such notice, Suppler will give to
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Purchaser, in writing, its proposed plan to correct the
non-competitiveness. Such plan must allow Supplier to correct the
non-competitiveness within sixty (60) days of approval of the plan by
Purchaser.
Purchaser will promptly approve or reject the proposed plan. If the
proposed plan is approved by Purchaser, then Supplier will diligently
implement the plan and cure the non-competitiveness according to the
plan.
The requirements obligation set forth in Section 5(A) will terminate
as to Purchaser if Supplier fails to provide a corrective plan, or
such plan is not reasonably acceptable to Purchaser, or Supplier fails
to diligently implement such plan, or Supplier is unsuccessful in
implementing the plan within the sixty day cure period.
6. PRODUCTION-PRICING
(A) Purchase Price: The Purchase Price of Products will be determined in
accordance with Attachment C.
(B) Rollback: Supplier will use its best efforts to offer 5% price
reductions to AEG and SmarTire for each calendar year after the last
calendar year for which pricing is specified in Attachment C.
Quarterly meetings will be held to develop recommendations on yield
and process improvements.
(C) Inclusions: The Purchase Price will include all costs for packaging
and packing.
(D) Exclusions: AEG will be responsible for all sales and use taxes
imposed on the sale of Products to AEG. SmarTire will be responsible
for all sales and use taxes imposed on the sale of the Product to
SmarTire.
(E) Delivery Terms: Delivery terms shall be Ex Works (Incoterms 1990).
7. LIFETIME PURCHASE
Supplier will (i) notify AEG and SmarTire at least two (2) years prior to
discontinuing the manufacture of such Product and (ii) make available a
"lifetime" purchase of such Product.
8. PAYMENT TERMS
(A) Non Production Orders: Payment terms are net thirty (30) days from
receipt of a correct invoice.
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(B) Production Orders: Payment terms are net thirty (30) days from receipt
of a correct invoice. Each shipment will be considered a separate
transaction. The details on payment terms and methodology are
contained in the TRW Automotive North America Supplier Information
Package, October 1998, attached as Exhibit 1.
9. PRODUCT DATABASE
(A) Maintenance: Supplier will, at no charge to AEG or SmarTire, maintain
the Product Database for a period of not less than one (1) year
following Supplier's last scheduled shipment of such Product.
(B) Limitations: Supplier will not use, for any purpose other than
producing Products for AEG and SmarTire, any Product Database
information not owned by Supplier unless previously authorized in
Section 10(c) or in writing by AEG.
10. TECHNOLOGY RIGHTS
(A) Ownership, Generally: As between AEG and SmarTire and Supplier, each
party will own all know-how, copyrights, inventions (patentable or
unpatentable) and other intellectual property created or developed by
the party, or which the party introduces to the Product from another
source. The parties agree that, under this general rule, certain
technology is owned by certain parties as set out in Attachment D. As
used in this Section 10(A), the term "own" means that the party
owning certain technology will have the right to seek and enforce
such intellectual property rights for the owned technology
(including, but not limited to, patents) as are available at law
outside of this Agreement. This Section 10(A) does not impose any
obligation on any party with respect to information or technology
falling into one or more of the exceptions set forth in Section 21(C).
(B) Ownership, Masks: Section 10(A) notwithstanding, AEG and SmarTire
will jointly own the masks of any application specific integrated
circuit ("ASIC") to be used in the Product developed hereunder.
Supplier will not use such masks to produce products for any other
customer, and will deliver to AEG at no additional cost to AEG, a
complete set of the most current masks, in such electronic and/or
physical form as AEG may specify, under the conditions specified in
Section 13.
(C) Standard Cell Designs: Supplier will own the designs of standard
cells contained within the Products that do not utilize (1) the
designs (above the cell level) of the Products or masks of the
Products or (2) any AEG or
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SmarTire Proprietary Information. Supplier may continue to incorporate
these standard cells in integrated circuits for other customers.
(D) Use of AEG/SmarTire Features: As long as AEG is purchasing its
requirements for Products from Supplier hereunder, Supplier will not
incorporate in any products sold to other customers any of the
features outlined in part (B) of Attachment D. Further, Supplier will
at no time incorporate in any products sold to other customers (i) any
AEG or SmarTire Proprietary information, or (ii) any feature patented,
copyrighted, or otherwise protected by law by either AEG or SmarTire.
11. CHANGES
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(A) Specifications: AEG and SmarTire reserve the right to change the
Specification from time to time. Supplier will promptly implement such
changes. Supplier will make changes to the Specifications that result
in minor changes to the design without charge, unless the cost to
Supplier of making such change is not minor.
(B) Consequences: If any change causes an increase or decrease in
development costs, an increase or decrease in the time required for
the performance of any part of the development, or a change in the die
size necessitating a change in the Development Price or the Purchase
Price, Supplier will promptly notify AEG and SmarTire in writing, but
in any event within ten (10) business days of the date on which AEG
first requests the change. In such event, an equitable adjustment will
be made in the prices or delivery schedule or both, and this Agreement
will be modified by a written agreement (in accordance with Section
20) to reflect such mutually agreed upon equitable adjustment.
12. TERM AND TERMINATION
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(A) Commencement: This Agreement will begin on the date set forth in the
preamble of this Agreement (the "Effective Date").
(B) Specifications: If Supplier and AEG cannot agree on the
Specifications, either Party may terminate this Agreement as to all
parties with ten (10) days' written notice and with no further
liability or obligations, except the obligations concerning
confidentiality.
(C) Termination for Breach: If either one of AEG or Supplier fails to
perform its respective obligations under this Agreement, the other of
AEG and Supplier will have the right to terminate this Agreement for
cause. To exercise such right, the non-breaching party will give
notice of termination (setting forth specific deficiencies in writing
signed by a duly authorized
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representative. Termination will become effective if the breaching
party fails to correct the deficiencies within a mutually agreed
upon time, not to exceed thirty (30) days from receipt of notice of
termination. If AEG terminates this Agreement for cause, AEG and
SmarTire will have no further payment liability to Supplier, except
for payment obligations relating to conforming Product delivered
and milestones completed prior to the effective date of termination
and non-disclosure obligations then accrued through the date of
termination. The obligations of the parties under Sections 10, 13,
16, 18 and 21 shall survive the termination, cancellation or
expiration of this Agreement.
(D) Termination for Special Conditions: Either of AEG or Supplier has
the right to terminate this Agreement if the other of AEG or
Supplier (i) has a permanent disruption of its business due to
bankruptcy, insolvency, or reorganization, (ii) is adjudged a
bankrupt, or (iii) makes a general assignment for the benefit of
its creditors.
(E) Purchase Order Termination: If either AEG or SmarTire terminates a
Purchase Order or a Release pursuant to the AEG Terms and
Conditions, the terminating party's liability will be limited to
(i) paying Supplier for finished Products ordered by the party
pursuant to Shipping Authorizations and (ii) reimbursing Supplier
for inventory procured or fabricated by Supplier in accordance with
the party's Fabrication and Raw Material Authorizations. Supplier
will promptly deliver any such finished Products or inventory to
AEG or SmarTire, as the case may be.
(F) Document Delivery: Upon the expiration or termination of this
Agreement for any reason whatsoever, Supplier will immediately
deliver to AEG and SmarTire at no additional charge:
(1) All AEG and SmarTire documentation provided by AEG and
SmarTire, respectively, to Supplier.
(2) All test results generated by Supplier.
(3) The Product Database and all net lists and test vectors
generated by Supplier.
13. MANUFACTURING RIGHTS
Supplier recognizes that AEG and/or SmarTire must have a continuous
supply of the Product after production begins. Thus, if Supplier
thereafter becomes unable to continue to supply the Product to AEG and/or
SmarTire as required hereunder and no alternative source of equivalent
pressure sensors exists that is reasonably acceptable to AEG and/or
SmarTire, as the case may be, then Supplier will give to AEG and SmarTire
a license under any intellectual property rights Supplier may hold
necessary to make the Product or have the Product
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made for AEG and SmarTire by a third party. Such license will be
exclusive, worldwide, and will have sufficient scope to permit AEG or such
third party to manufacture, use, and sell the Product. Such license will
also require Supplier to disclose to AEG all technical information
necessary to manufacture the Product (such information will include,
without limitation, the masks for the Product, functional design
information, detailed electrical schematics, net lists, and test vectors)
and will allow AEG to disclose information as necessary to make the
Product or have the Product made by a third party. The license will be
cost-free to AEG and SmarTire.
14. NRE PRICE ASSURANCE
Supplier warrants that software, models, and layout information will be
representative of the Product process. If the test results do not match
the simulation results and the failure requires one or more new masks and
wafer runs, there will be no additional cost to AEG or SmarTire. For
purposes of this Section 14, a test result match means a result that is
equal to or better than the expected result as defined in the Supplier
Development Manual.
15. DEVELOPMENT PRODUCT WARRANTY
Supplier warrants that the Products delivered during the development
process will conform to the Specifications and will meet all applicable
quality requirements of Supplier and AEG and SmarTire.
16. INDEMNIFICATION
Supplier will indemnify and hold harmless AEG and SmarTire, their
respective officers, employees, agents, successors, assigns, customers,
and users of its products from and against any and all losses, expenses,
damages, claims, suits and liabilities (including recall, repair and
replacement expenses and other incidental and consequential damages, court
costs, and attorneys' fees) arising as a result of any claim that the
manufacture, use, sale or resale of Product infringes any patent, utility
model, industrial design, copyright, trade secret, or other intellectual
property right in any country. Supplier will, when requested by AEG or
SmarTire (the "requesting party"), defend any action or claim of such
infringement at its own expense. If the sale and/or use of the Product is
enjoined or, in the requesting party's sole judgment, is likely to be
enjoined, Supplier will, at the requesting party's election and Supplier's
sole expense, either (i) procure for the requesting party the right to
continue using the Product, (ii) replace the Product with an equivalent
noninfringing Product, or (iii) modify the Product so it becomes
noninfringing. The foregoing notwithstanding, Supplier will not be liable
to AEG or SmarTire for, and will not indemnify and hold harmless AEG and
SmarTire against, any patent infringement arising from Product features or
functions required by AEG or SmarTire.
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17. TRADEMARK/TRADENAME
No Party will use any trademark or tradename of any other Party, or except
as may be required by law, refer directly or indirectly to this Agreement
or to the services performed hereunder in connection with any Product,
promotion, or publication, without the prior written consent of the other
Party.
18. APPLICABLE LAW; DISPUTE RESOLUTION
This Agreement will be construed, and the legal relations between the
parties will be determined, in accordance with the laws of the State of
Ohio. Any claim, controversy or dispute arising from the execution of, or
in connection with, this Agreement preferably shall be settled through
negotiations between the parties. As such, the parties shall attempt in
good faith to resolve such claim, controversy or dispute promptly by
negotiation between executives who have authority to settle the controversy
and who are at a higher level of management than the persons with direct
responsibility for administration of this Agreement. If no settlement can
be reached through negotiations within sixty (60) days of the submission of
such a matter by one of the parties to the other party, then such dispute
shall be submitted to the Arbitration Institute of the Stockholm Chamber of
Commerce for arbitration in accordance with its rules of procedure. Any
such arbitration proceeding shall be held in Stockholm, Sweden and
conducted in the English language. The arbitration award shall be final and
binding upon all parties and shall be enforceable in accordance with its
terms. The cost of the arbitration, including a reasonable allowance for
attorneys' fees, shall be borne by the losing Party or as otherwise
specified in the ruling of the arbitration tribunal. The arbitration award
shall be in writing and shall specify the factual and legal bases for the
award. The arbitrator shall only have authority to award compensatory
damages in accordance with the Agreement and shall not have authority to
award punitive damages, other non-compensatory damages, or any other
relief, and the parties hereby waive all rights for this type of relief
with respect to claims resolved by arbitration.
19. ASSIGNMENT
No right or interest in this Agreement may be assigned and no duty under
this Agreement may be delegated by any party without the prior written
consent of the other parties. However, any party may assign its rights and
delegate its duties under this Agreement, without such consent, to any
successor in interest by amalgamation, merger, consolidation, or
acquisition of substantially all the assets of such party relating to this
Agreement.
20. MODIFICATIONS
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No modification of this Agreement will be binding upon any party unless
such modification is in a writing that (a) specifically refers to the
provision of this Agreement to be modified and (b) has been signed by
authorized representatives of all parties.
21. CONFIDENTIALITY AND USE OF INFORMATION
(A) AEG Information.
(1) Definition. "AEG Proprietary Information" means the fact that
this Agreement exits, the AEG and SmarTire technical information
listed on Attachment D, and any other information, including
models and prototypes, which (1) relate to products and
components and subsystems thereof of TRW Inc. or its
subsidiaries, and (2) are disclosed to Supplier by AEG or any
employee, agent or independent contractor of TRW Inc. or its
subsidiaries, or are developed by Supplier under this Agreement.
In particular and without limiting the foregoing, the datasheet
for any Product developed under this Agreement and any
information on such datasheet will be AEG Proprietary
Information.
(2) Use and Obligation of Confidence. Supplier will, during the
fulfillment of this Agreement and for a period of seven (7) years
after its cancellation, termination or expiration: (1) use the
AEG Proprietary Information only in developing and/or
manufacturing Products and their components for sale by or to TRW
Inc. or its subsidiaries; and (2) hold the AEG Proprietary
Information in confidence and disclose such AEG Proprietary
Information only to its own employees who will likewise hold the
AEG Proprietary Information in confidence and use the AEG
Proprietary Information only as provided in this Subsection
21(A)(2), unless otherwise agreed in writing by TRW.
(B) SmarTire Information.
(1) Definition. "SmarTire Proprietary Information" means the fact
that this Agreement exists, the AEG and SmarTire technical
information listed on Attachment D, and any other information,
including models and prototypes, which (1) relate to products and
components and subsystems thereof of SmarTire, or its
subsidiaries, and (2) are disclosed to Supplier by SmarTire or
any employee, agent or independent contractor of SmarTire or its
subsidiaries, or are developed by Supplier under this Agreement.
In particular and without limiting the foregoing, the datasheet
for any Product developed under this Agreement and any
information
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on such datasheet will be SmarTire Proprietary Information.
(2) Use and Obligation of Confidence. Supplier will, during the
fulfillment of this Agreement and for a period of seven (7) years
after its cancellation, termination or expiration: (1) use the
SmarTire Proprietary Information only in developing and/or
manufacturing Products and their components for sale by or to
SmarTire or its subsidiaries; and (2) hold the SmarTire
Proprietary Information in confidence and disclose such SmarTire
Proprietary Information only to its own employees who will
likewise hold the SmarTire Proprietary Information in confidence
and use the SmarTire Proprietary Information only as provided in
this Subsection 21(B)(2), unless otherwise agreed in writing by
SmarTire.
(C) Supplier Information.
(1) Definition. "Supplier Proprietary Information" means the Supplier
technical information listed on Attachment D and other
information which (1) relates to Supplier's manufacturing
processes or business financial data or business plans, and (2)
is disclosed to AEG or SmarTire by Supplier or any employee,
agent or independent contractor retained by Supplier during the
fulfillment of this Agreement. The datasheet for any Product
developed under this Agreement and any information on such
datasheet will be not be Supplier Proprietary Information.
(2) Use and Obligation of Confidence. Each of AEG and SmarTire will,
during the fulfillment of this Agreement and for a period of
seven (7) years after its cancellation, termination or
expiration: (1) use the Supplier Proprietary Information that it
receives only in connection with activities that are permissible
under this Agreement; and (2) hold the Supplier Proprietary
Information that it receives in confidence and disclose such
Supplier Proprietary Information only to its own employees who
will likewise hold such Supplier Proprietary Information in
confidence and use such Supplier Proprietary Information only as
provided in Subsection 21(B)(2), unless otherwise agreed in
writing by Supplier.
(D) Exceptions. Notwithstanding Subsections (A) and (B), this Agreement
will impose no obligation upon any party with respect to any
information which: (i) is now or subsequently becomes publicly known
or available by publication, commercial use or otherwise without
breach of this Agreement; (ii) is known to the party at the time of
receipt, (iii) is subsequently rightfully furnished to the party by a
third person without a
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Execution Copy
restriction on disclosure; (iv) is independently developed by
employees of the party who have not had access to the Proprietary
Information of the other party; or (v) is delivered to the party after
the cancellation. termination or expiration of this Agreement, or (vi)
is required by law to be disclosed.
(E) Override. In the event of any conflict between the provisions of this
Section 21 and the provisions of any secrecy or confidentiality
agreement between Supplier and either AEG or SmarTire, the provisions
of this Section 21 will govern.
22. INDEPENDENT CONTRACTOR
The relationship between the parties will be that of independent
contractors. No party will be or hold itself out as an employee or agent of
the other, and no party will create or assume any obligation, express or
implied, on behalf of the other.
23. ENTIRE AGREEMENT
This Agreement, together with the Attachments and Exhibits, each of which
is incorporated fully and is made a part of this Agreement by this
reference, (i) contains the entire agreement of the parties with respect to
the subject matter hereof and (ii) supersedes all prior agreements or other
arrangements between the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives, effective as of
the Effective Date.
TRW INC. SMARTIRE SYSTEMS INC.
Automotive Electronics Group,
North America
By: /s/ XXXX XXXXXXXXX By: /s/ X.X. XXXXXX
----------------------- ------------------------
Xxxx Xxxxxxxxx X.X. Xxxxxx
(Typed/Printed Name) (Typed/Printed Name)
Title: Director Planning & Business Dev. Title: President & CEO
SENSONOR ASA
By: /s/ SVERRE HOENTUEDT
----------------------
Sverre Hoentuedt
President & CEO
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