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EXHIBIT 10.30
DEVELOPMENT AND SUPPLY AGREEMENT
between
SCM Microsystems GmbH
Luitpoldstra e 6
D-85276 Pfaffenhofen
- hereinafter "SCM"
and
TELENOR Conax
Xxxx, Xxxxxxxx 0
X - 0000 XXXX
- hereinafter "TELENOR"
1.0 PROGRAM DESCRIPTION
A. SCM will use reasonable endeavours to design, manufacture, test and
supply to TELENOR verification devices ("PROTOTYPES") to meet the
functional and parametric specification that has been mutually agreed
upon in writing by the parties ("SPECIFICATION").
B. Upon mutual written approval of the SPECIFICATION, SCM will implement
the design and fabricate and ship PROTOTYPES to TELENOR in accordance
with the agreed upon delivery schedule.
C. The deliverables, schedule, and charges are set forth in Appendix I
hereto:
2.0 PROTOTYPE ACCEPTANCE AND DISCLAIMER OF WARRANTIES AND REMEDIES
TELENOR shall perform acceptance testing within thirty (30) days after
receipt of PROTOTYPES to determine whether PROTOTYPES conform to the
SPECIFICATION. If within the acceptance period, TELENOR demonstrates
that the PROTOTYPES fail to meet the SPECIFICATION, SCM shall use
reasonable endeavours to correct the defect if technically feasible at
SCM's expense and to supply new PROTOTYPES within a reasonable period
after written notification of the defect and confirmation by SCM. If SCM
is unable to correct the defect, SCM shall refund all moneys paid to SCM
by TELENOR hereunder.
Notwithstanding any assistance SCM may provide in the definition of the
SPECIFICATION; SCM does not warrant adequacy of such specification with
respect to TELENOR's intended use and SCM shall not be responsible for
circuit performance in the TELENOR application.
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The foregoing states the entire warranty. All other claims for warranty
or performance are excluded. This shall not apply to claims arising from
the lack of an assured characteristic, or because SCM concealed the
defect in bad faith.
No assured characteristics shall be deemed to be created by this
Agreement. Any assured characteristics may only be created by written
confirmation of the parties.
3.0 PAYMENT SCHEDULE AND TERMS AND TERMINATION
SCM will invoice Telenor in accordance with the following schedule:
PROJECT PHASES
Phase 1: Functional Specification and Feasibility Study: [ * ]
- Overall hardware design definition - Software architecture [ * ]
definition - Detailed production cost estimates
Phase 2: Detailed Specifications: U$ [ * ]
[ * ]
- Processor Silicon specifications
- Electrical Design
- Mechanic specifications
- Software specifications
- Emulation environment for software development
Phase 3: [ * ] software on evaluation board: U$ [ * ]
[ * ]
- [ * ]
- [ * ]
- Software development
- Evaluation board
Phase 4: Prototype and production release U$ [ * ]
[ * ]
- Working prototype module
- Release for production
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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Payment terms: Net 30 days from the date of SCM's invoice
Telenor may terminate after the completion of each phase of the four
phases as defined above. At each phase [ * ] will be billed [ * ].
In case the contract is terminated before phase two is completed, SCM
has the repurchase rights of 50 % of 34985 shares as outlined in the
side letter from Telenor from 30. April 1997 (Rune Xxxxxx).
4.0 DELAY
If SCM does not comply with the schedule set forth in Appendix 1,
TELENOR shall be entitled to set SCM a reasonable period after the
expire of which without the required performance from SCM, TELENOR shall
be entitled to terminate this Agreement by written notification to SCM.
In this case all development charges previously paid by Telenor shall be
refunded if SCM was responsible for the delay. All other claims are
excluded.
5.0 OTHER DAMAGE CLAIMS
Other damage claims of TELENOR against SCM (in particular because of
breach of advisory obligations or secondary contractual duties, breach
of contract, tortuous acts and culpa in contrahendo) are excluded. This
does not apply if damages are caused by an intentional act or the gross
negligence of an agent or employee of SCM. SCM shall not be liable,
however, where such damages are due to an intentional act or gross
negligence of an agent or employee of SCM who is not an executive or
legal representative of SCM, unless such damages are caused by
infringement of a major contractual obligation.
The claims specified above are subject to a limitation period of 6 (six)
months except for claims for tortuous acts.
6.0 PROPERTY RIGHTS
A. TELENOR agrees that incorporation by SCM of one or more SCM Standard
Modules in any integrated circuit design under this Agreement shall not
derogate in any way from SCM's rights in such Module(s) nor, subject to
the
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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following provisions of this Section, shall it limit the freedom of SCM
to use such Module(s) for the benefit of itself or of other parties. Any
new modules developed by SCM pursuant to this Agreement shall be deemed
to be SCM Standard Modules unless otherwise agreed in writing by the
parties. Title and all rights in any [ * ] and associated design rights
in [ * ], including the right to register such [ * ] under all
applicable statutes, and in the [ * ] arising out of performance under
this Agreement shall be owned exclusively by SCM.
B. SCM will assign a unique part number to device manufactured by SCM for
TELENOR hereunder and will not accept any purchase order from any other
customer for the supply of such device ordered by the unique part number
unless previously agreed in writing with TELENOR. In case of such
deliveries to other customers, SCM agrees to pay TELENOR [ * ] as
compensation for TELENOR's R&D contribution to a maximum [ * ]
7.0 INVENTIONS
Each party represents that it has agreements with its employees (which
term shall include agents, consultants and subcontractors) such that
ownership of intellectual property rights in and to any invention made
by its employees vests in the employer.
With respect to any invention made in the course of performance of this
agreement the following rules shall apply:
A. The intellectual property rights in and to any invention made solely by
one or more employees of either party shall be the sole property of that
party and no license thereunder shall be granted to the other party
except by separate written agreement. In case of a registered invention,
each party informs the other party about their invention.
B. The intellectual property rights in and to any invention made jointly by
one or more employees of SCM with one or more employees of TELENOR shall
be jointly owned by SCM and TELENOR with each party having unrestricted
right to licensee third parties thereunder without accounting to the
other.
The parties agree that the configuration of the device developed
pursuant to this Agreement shall not be deemed to be an invention by
either party.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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8.0 PRODUCTION
A. TELENOR's purchases of production devices will be initiated by written
purchase orders and SCM's agreement to sell will be by written order
acknowledgement. Unless and until the parties execute a separate written
production agreement, the only terms and conditions of sale for
production devices shall be those set forth in SCM's Standard Terms and
Conditions of Sale in effect at the time of order acknowledgement.
B. TELENOR will be permitted to cancel any undelivered production devices
subject to the following agreed upon cancellation charges: [ * ]
C. Notwithstanding the fact that wafer fabrication and assembly may be
initiated at any given site, SCM reserves the right to support wafer
fabrication and assembly from any of SCM's internally qualified wafer
fabrication and assembly sites.
9.0 GENERAL
A. TELENOR agrees that it will not knowingly (1) export or reexport,
directly or indirectly, any technical data or devices (subject to the
Export Administration Regulations of the US and other applicable
jurisdictions) received from SCM under this Agreement, (2) disclose such
technical data for use in, or (3) export or reexport, directly or
indirectly, any direct product of such technical data to any destination
to which such export or reexport is restricted or prohibited by US or
non-US law, without obtaining prior authorization from US Department of
Commerce and other competent government authorities to the extent
required by those laws.
SCM will comply with those regulations and will apply to obtain the
necessary licenses for shipping the products to Telenor.
B. The existence, validity, and construction of this Agreement and
performance hereunder shall be governed by the laws of Germany and the
Munich courts to whose jurisdiction the parties hereby submit, shall
have exclusive jurisdiction to hear all disputes.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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C. Consent by either party to, or waiver of, a breach by the other party,
whether express or implied, shall not constitute a consent to, waiver
of, or excuse for any other different or subsequent breach.
D. If any provision, or part of any provision of this Agreement, or the
Appendices hereto, is invalidated by operation of law or otherwise, the
provision or part will to that extent be deemed omitted and the
remainder of this Agreement, or applicable Appendix will remain in full
force and effect. Should the case arise, the parties agree that such
invalidated provision or part thereof shall be replaced by a similar but
legally valid provision which is as close as possible in commercial
effect to the invalidated provision or part thereof.
E. No information transmitted by either party to the other shall be
considered proprietary unless labelled accordingly and subject to a
separate written confidentiality agreement defining the rights and
obligations of the parties with respect thereto.
F. Neither party shall publicly announce or disclose the existence of this
Agreement or its terms and conditions, or advertise or release any
publicity regarding this Agreement, without the prior written consent of
the other party.
G. THIS AGREEMENT AND ITS APPENDIX ARE THE COMPLETE AND EXCLUSIVE STATEMENT
OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS OR
PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN
THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND ANY
APPENDIX. NO ADDITION TO OR MODIFICATION OF THIS AGREEMENT SHALL BE
BINDING UPON EITHER PARTY UNLESS REDUCED IN WRITING AND DULY EXECUTED BY
THE PARTIES TO THIS AGREEMENT.
H. The provisions of Section 6 to 9 shall survive the termination or
cancellation of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
SCM MICROSYSTEMS GMBH TELENOR
By: /s/ XXXXX XXXXX By: /s/ XXXXXXX XXXXXX
----------------------- -----------------------
Name: Xxxxx Xxxxx Name: Xxxxxxx Xxxxxx
--------------------- ---------------------
Title: COO Title: Managing Director
--------------------- --------------------
Date: 05/15/97 Date: 05/15/97
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APPENDIX 1
1.0 PRELIMINARY PRODUCT DESCRIPTION
See annex [ * ] MODULE TELENOR PROJECT"
After the first phase (see 5.0) the product description might be
readjusted upon agreement of both parties.
2.0 STANDARD DEVELOPMENT PACKAGE
See annex [ * ] MODULE TELENOR PROJECT" After the first phase
(see 5.0), the "standard development package" might be readjusted upon
agreement of both parties.
3.0 DEVELOPMENT CHARGES
See paragraph 3 in contract.
4.0 PAYMENT SCHEDULE
See paragraph 3 of contract.
5.0 PRELIMINARY DEVELOPMENT SCHEDULE
STAGE RESP. ESTIMATED
COMPLETION DATE Day/Month/Year
[ * ]
Further details as outlined in the project plan attached to the [ * ]
module Telenor project plan. After first phase the completion dates can be
readjusted upon agreement of both parties.
7.0 PRODUCTION DEVICE PRICING
for device integrated into DVB-CAM (similar to current CAM) As
production device pricing cannot be defined now the parties agree to
work together to achieve a price target of US [ * ] to US [ * ]. There
can be no guarantee that these prices can be achieved.
Following PROTOTYPE approval by TELENOR, SCM's estimated lead-time for
production devices is approx. [ * ] after receipt of TELENOR's order.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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[Facsimile dated April 30, 1997]
[Telenor Venture Logo]
Dear Xxxxxx Xxxxxxxxx,
With regards to the fax from Xxxxx Iwarsson to you send 04/28/97 and your
response of 04/29/97, we hereby confirm that we enter into the technology
agreement as described.
The technology agreement will be divided in 4 phases of each USD [*], and
Telenor Venture will be able to terminate the technology agreement within the
day before entering into each next phase.
The full warrant coverage of 194.930 shares at a predetermined price of US$8,58
will be honored.
Concerning the [*] shares to be issued to Telenor Venture we accept that [*] of
the shares is repurchaseable after the first phase is initiated and paid, and
that [*] shares is repurchaseable after second phase is initiated and paid.
In the name of good order, please confirm your acceptance by fax.
On behalf of Telenor Venture AS
/s/ Rune Xxxxxx
CEO
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
