BUSINESS AGREEMENT
The following exhibit, which was previously filed as Exhibit 10.25 to the
Company's Annual Report on Form 10-K for the fiscal year ended March 31,
1998, represents an amended request for confidential treatment.
DIGITAL MICROWAVE CORPORATION
BUSINESS AGREEMENT FINAL VERSION
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BUSINESS AGREEMENT
BETWEEN
MICROELECTRONICS TECHNOLOGY INC.
AND
DIGITAL MICROWAVE CORPORATION
DOCUMENT REFERENCE
JANUARY 26, 1998 FINAL VERSION
-------------------------------------------------------------------------------
DIGITAL MICROWAVE CONFIDENTIAL
Initials: DMC:________
Page 1 Initials: Manufacturer:________
BUSINESS AGREEMENT
This Manufacturing Agreement, herein after called the "Agreement",
effective as of the date of the last signature, made between Digital
Microwave Corporation (DMC), a corporation organized under the laws of the
state of California, USA, having its principal office at 000 Xxxx Xxxxxxx
Xxx Xxx Xxxx, XX 00000 XXX, hereinafter called the "Purchaser" and:
Microelectronics Technology Inc. (MTI)
with offices at:
0, Xxxxxxxxxx Xxxx II
Hsinchu Science Based Industrial Park
Hsinchu 000, Xxxxxx, X.X.X.
hereinafter called the "Manufacturer";
WITNESS:
WHEREAS, the Purchaser is engaged in the design and selling of electronic
and electromechanical products; and
WHEREAS, the Manufacturer is an independent business organization engaged
in the manufacturing and assembly of products similar to those designed and
sold by the Purchaser, and desires to manufacture products for the
Purchaser for sale.
WHEREAS, The Purchaser and Manufacturer have on March 17, 1997 executed a
Purchase Order Agreement in which Manufacturer agreed to manufacture
products for the purchaser and both parties contemplated the execution of
this manufacturing agreement.
NOW, THEREFORE, in order to provide for effective service to Purchaser from
Manufacturer for manufacture of products, and in consideration of the
mutual promises herein contained, it is agreed as follows:
1. PURPOSE
The purpose of this Agreement is to set forth the terms and conditions
applicable to purchases of Purchaser's Magnum, ClassicII and SpectrumII
products, hereinafter referred to as 'Products' and listed herein on
APPENDIX 'A', from Manufacturer by Purchaser. All documents issued by
Purchaser or Manufacturer must incorporate this Agreement by reference. Any
additional or different terms or conditions proposed by Purchaser or
Manufacturer are not applicable unless expressly approved and agreed to in
writing and signed by authorized representative of the other party.
Page 2
2. THE PURCHASER RELATIONSHIP
This Agreement does not constitute Manufacturer as an employee, agent, or
legal representative of Purchaser for any purpose whatsoever. Manufacturer
is not granted, nor shall it represent that it has been granted, any right
or authority to assume or create any obligation or responsibility,
expressed or implied, on behalf of, or in the name of, Purchaser, to incur
debts or make collections for Purchaser or to bind Purchaser in any manner
whatsoever. It being the intent of the parties hereto to create the
relationship on the part of the Manufacturer of an independent contractor,
for whose actions or failure to act, the Purchaser shall not be
responsible.
3. PRICE OF PRODUCTS TO PURCHASER
The prices for Products are in U.S. dollars as set forth in APPENDIX G to
this Agreement. The prices will be reviewed every [*] months and changed
as mutually agreed. It is agreed that such changes to the prices for the
subsequent [*] months will include a provision based upon exchange rate
fluctuations between the U.S. Dollar and the Taiwan Dollar assuming a [*]%
local Taiwan content and [*]% U.S. Dollar content. The base rate upon
contract signature is [*] Taiwan Dollar per U.S. Dollar.
Prices set forth in this Agreement are exclusive of any and all Federal,
State and local excise, sales, use or similar taxes. Where applicable such
taxes shall be included on the invoices submitted by Manufacturer and paid
by Purchaser. Purchaser shall in no event be liable for taxes levied on
Manufacturer based upon its income.
4. DELIVERY
All Purchase Orders issued by Purchaser will be shipped according to the
schedule provided in Purchaser's purchase order.
5. ORDERING
A. Each purchase order from the Purchaser shall include the following:
(1) Quantity of each type Product purchased
(2) Description of each type Product purchased
(3) Assembly Control Document identifying applicable Document
Revisions
(4) Unit price and Total Price for each item of Product
(5) Total Amount of Order
(6) Method of payment Invoice address and billing contact
(7) Resale Certificate number for each state to which a shipment is
being made
(8) Shipping Address
(9) Method of Shipment including if shipment is to be insured
(10) Desired delivery schedule
(11) Special instructions or markings
(12) A statement that the order is governed by this Agreement
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[*] OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. THE MATERIAL HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
B. Within ten (10) working days after the receipt of an order from
Purchaser, Manufacturer shall provide written acceptance or rejection of
the order as issued.
6. CANCELLATION OF ORDER
The Purchaser with a [*]-day notice may cancel orders issued by Purchaser
and received by Manufacturer in accordance with the terms and conditions of
this Agreement.
7. TERMS OF PAYMENT
Payment is due and payable [*] ([*]) days from the date of the invoice.
Purchaser agrees to make payments to Manufacturer in U.S. dollars through
the issuance of an Electronic Funds Transfer (EFT) on a US bank in
accordance with the terms of payment.
8. CLAIMS FOR SHIPMENT DAMAGE
Purchaser agrees to notify Manufacturer in writing of any shortages or
rejection within [*] ([*]) working days after receipt of Product and file
a claim with the carrier for any shortage of packages or obvious damage
caused by the carrier. If such shortage or rejection is due to the fault of
Manufacturer, the Product will be replaced or repaired by Manufacturer. If
Purchaser does not provide Manufacturer such notice within the [*] ([*])
working day period, the Product will be presumed to have been accepted.
9. WARRANTY
Manufacturer warrants all Products sold under this Agreement to be free
from defects in material and workmanship under normal and proper use for a
period of [*] months from the date of shipment to Purchaser. Material
defect warranty shall not apply to any material supplied to Manufacturer by
Purchaser.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESSED,
IMPLIED, OR STATUTORY, INCLUDING WARRANTY OF MERCHANTABILITY.
Within the stated warranty period, Manufacturer will repair or replace, at
its option, f.o.b. its plant, any Product which is returned to its plant,
shipping charges prepaid, provided inspection and examination discloses to
Manufacturer's satisfaction that (a) the reported defects are within the
warranty coverage, (b) the Product has not been tampered with, or (c) the
Product has not been damaged due to misuse, improper storage or
maintenance, negligence or accident. Manufacturer will return the warranty
repaired Product, shipping prepaid, via the same type of service used by
Purchaser to ship failed Product to the Manufacturer.
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[*] OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. THE MATERIAL HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
THE FOREGOING CONSTITUTES THE PURCHASER'S SOLE AND EXCLUSIVE REMEDY AND IS
IN LIEU OF ANY AND ALL REMEDIES WHICH MAY BE AVAILABLE TO THE PURCHASER.
10. TITLE TO GOODS, RISK OF LOSS, AND INSURANCE
Shipments are made Ex Works (Incoterms 1990) Manufacturer's Premises,
shipment, freight collect. Title passes to Purchaser and Purchaser assumes
risk of loss upon delivery to the carrier at the premises, the carrier
acting as purchaser's agent.
Purchaser shall own title to all NRE property and other property provided
to Manufacturer by Purchaser associated with this Agreement. Manufacturer
agrees to exercise reasonable care in the use and custody of such property.
Manufacturer shall maintain sufficient insurance to cover Purchaser's cost
of such property.
Proof of insurance for material and property shall be provided to Purchaser
at the first of each calendar quarter.
11. RESPONSIBILITIES OF PURCHASER
A. Purchaser shall provide Manufacturer drawings and documentation in an
acceptable format and in sufficient detail to permit Manufacturer to
perform the work covered by this Agreement.
B. Purchaser shall provide Manufacturer a non-binding rolling six-month
forecast for all Products listed in APPENDIX 'A'.
C. Purchaser shall assist Manufacturer in analyzing test results,
reviewing procedures and formulating plans to improve throughput,
yield, and quality for all Products.
D. Purchaser shall provide supplied material, as listed in APPENDIX 'B',
at a mutually agreed to schedule.
12. RESPONSIBILITIES OF MANUFACTURER
A. APPENDIX 'C' lists the Scope of Work for this Agreement.
B. Manufacturer shall provide Purchaser a list, with prices, of the top
20% highest cost components, subassemblies or labor items for each
Product upon request of Purchaser.
C. Manufacturer shall use Purchaser's Approved Vendor List (AVL) for all
material required to be purchased by Manufacturer under this
Agreement.
D. During the term of this Agreement, Manufacturer shall use commercially
reasonable efforts to enhance and cost reduce the manufacturing
process for the Products. Manufacturer shall report on cost reduction
efforts at the first of every quarter.
13. TERM
The term of this Agreement shall be [*] ([*]) from the effective date of
this Agreement, and will be automatically renewed for successive [*] terms
thereafter. This Agreement may otherwise be terminated as hereinafter
provided:
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[*] OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. THE MATERIAL HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
A. Manufacturer may immediately terminate this Agreement at any time, for
[*].
B. Purchaser may immediately terminate this agreement at any time, for
[*].
C. Either party hereto may terminate this Agreement, without cause upon
giving to the other [*] days prior written notice. The Manufacturer in
accordance with the Agreement will fulfill any outstanding orders
placed by Purchaser in place at the time of termination.
X. Xxxxxx of termination hereunder shall be sent by Certified or
Registered Mail, return receipt requested.
E. In the event of termination as herein provided, Manufacturer shall
return to Purchaser all Purchaser Product information, documentation,
software, firmware, drawings, test fixtures and test equipment
Purchaser may have supplied or paid for in connection with this
Agreement.
14. FORCE MAJEURE
Manufacturer will exercise every reasonable effort to meet any quoted or
agreed upon shipment date or dates. Manufacturer shall not, however, be
liable for any loss or damage, including consequential damages, due to
delays or failure to ship resulting from any cause beyond its reasonable
control, such as, but not limited to, securing necessary export licenses,
compliance with government law or regulation, acts of God, acts or
omissions of the Purchaser, acts of civil or military authority, judicial
action, defaults of subcontractors or vendors, labor disputes, failure or
delays in transportation, embargoes, wars or riots, or the inability of
carriers to make scheduled deliveries
15. ACCEPTANCE AND INSPECTION
The basic acceptance criteria for Products shall be [*]. Products shall
also conform to Manufacturer's [*].
Products, which fail to meet the acceptance criteria, will not be accepted
and be returned to Manufacturer for corrective action. All such Products
shall be tracked by Manufacturer's RMA system. Manufacturer shall provide
monthly reports on the status of all RMAs.
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[*] OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. THE MATERIAL HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
16. NO RIGHTS
Manufacturer agrees that it will not in any manner represent that it has
ownership of the trade name "Digital Microwave Corporation." or any other
trade name or trademark used by Purchaser to identify the Products or used
in connection with the Products. Manufacturer further agrees that it will
not register or attempt to register any such trade names or trademarks
under the laws of any jurisdiction, and will not at any time do, or cause
to be done, any act or thing contesting, or in any way impairing or tending
to impair, any part of Purchaser's right, title, and interest in such trade
names or trademarks, whether or not they are registered in the
jurisdictions in which Manufacturer is located or does business.
Nothing in this Agreement shall be construed as granting to Manufacturer or
conferring on Manufacturer any rights by license or otherwise to
Purchaser's patent, trademark, copyright know how or other proprietary or
confidential rights.
17. COMPUTER SOFTWARE
Any and all computer software delivered hereunder is and shall remain the
sole and exclusive property of Purchaser, or Purchaser's suppliers, and
shall be held in trust and confidence by the Manufacturer for Purchaser, or
Purchaser's suppliers. The Manufacturer shall have a non-exclusive license
to use such computer software solely in conjunction with the execution of
this Agreement. The Manufacturer's license to use such computer software
shall terminate upon termination of this Agreement. All copies of the
software shall be returned to Purchaser upon termination of this Agreement.
18. NO WAIVER AT RIGHTS
A failure by one of the parties to this Agreement to assert its rights for
or upon any breach of this Agreement shall not be deemed a waiver of such
rights, nor shall any such waiver be implied from the acceptance of any
payment. No waiver in writing by one of the parties hereto, with respect to
any right, shall extend to or affect any subsequent breach, either of like
or different kind, or impair any right consequent thereon.
19. INDEMNIFICATION
Manufacturer shall defend, indemnify and hold Purchaser harmless from
personal injury, expense or property damage, including attorney's fees
incurred by any employee, agent, invitee or licensee of Manufacturer, or
any other person, regardless of how caused if arising out of the
manufacture, assembly, test, use, or possession of the Products procured
hereunder unless such loss was caused solely by the gross negligence or
willful misconduct of Purchaser, its employees, or its authorized agents.
Page 7
20. TAXES
All price set forth in this agreement are exclusive of any sales, use,
excise, property or any other taxes imposed by any government applicable to
the sale, use or delivery of the products, including import duties on the
Equipment, now or hereafter enacted, all of which will be paid by purchaser
separately or added by Manufacturer to the invoice where Manufacturer is
required by law to collect the same, unless purchaser provides Manufacturer
with a proper tax exemption certificate.
21. LIMITATION OF LIABILITY
Neither Party or its suppliers shall be liable for any indirect,
incidental, special, or consequential damages, including but not limited
to, loss of profits or revenue, or cost of substituted facilities,
equipment or services which arise out of performance or failure to perform
any obligation contained within this agreement, whether the claim is in
contract, tort (including negligence), strict liability or otherwise, even
if such party has been advised of the possibility of such damages.
Manufacturer or its suppliers shall not be liable for indirect, incidental,
special, or consequential damages and in no event shall the liability of
the Manufacturer arising in connection with any Products purchased under
this Agreement exceed the actual amount paid by Purchaser to Manufacturer
for Products delivered.
22. NON COMPETE
Manufacturer agrees that it is not involved in any business as of the date
of this Agreement, nor will it enter into any business during the term of
this Agreement that involves the design or manufacture of microwave radios
for terrestrial applications of the nature and scope of the products which
are being produced under this Agreement.
23. PRODUCT CHANGES
Manufacturer understands and agrees that Purchaser from time to time may
make changes to the design and specifications on any Product involved with
this Agreement. Changes will be documented and provided to Manufacturer via
Engineering Change Orders (ECOs). Each ECO will specify an effective date
for the change.
Upon receipt of an ECO Manufacturer shall review it and provide a written
response to Purchaser within 5 working days stating any impact to schedule
or price. Manufacturer shall not implement any ECO which delays any
delivery schedule or increases price to the Purchaser without first
obtaining written authorization.
24. PROPRIETARY INFORMATION
APPENDIX 'E' 'Non-Disclosure Agreement' as signed by both parties is
attached and incorporated by reference.
Page 8
This Agreement and the existence of this Agreement shall be deemed to be
confidential and shall be controlled by the 'Non-Disclosure Agreement'.
25. ENTIRE AGREEMENT
This instrument including the referenced Purchase Order Agreement
Appendices constitutes the entire Agreement relative to the establishment
of the manufacturer relationship between Purchaser and Manufacturer.
Purchaser may use its standard forms to issue purchase orders, specify
quantities, authorize prices, change schedules, modify specifications and
documentation or provide other notices as provided for in this Agreement.
In the event of any conflict, discrepancy or inconsistency between this
Agreement and any other Purchaser document delivered to Manufacturer, the
terms and conditions of this Agreement shall prevail to the extent of such
conflict, discrepancy or inconsistency.
26. NON-ASSIGNABLE
This Agreement may not be transferred or assigned in whole or in part by
either party without the prior written consent of the other party.
27. NOTICES
All notices given pursuant to this Agreement shall be in the English
language. Notices shall be deemed effective on the day they are dispatched
by certified or registered mail, return receipt requested, addressed to the
other party at the address stated on the first page of this Agreement or at
any superseding address so notified hereunder.
28. SEVERABILITY OF PROVISIONS
The invalidity under applicable law, regulations, or other governmental
restrictions or prohibitions of any provisions of this Agreement shall not
affect the validity of any other provisions of this Agreement, and in the
event that any provision hereof be determined to be invalid or otherwise
illegal, this Agreement shall remain effective and shall be construed in
accordance with its terms as if the invalid or illegal provision were not
contained herein.
29. GOVERNING LAW
This Agreement is deemed entered into in San Jose, California, and shall in
all respects be governed by and construed under the laws of the state of
California as such laws are applied to agreements between California
residents entered into and performed entirely within California. Any
litigation or other dispute resolution between the parties relating to this
Agreement will take place in Santa Xxxxx County, California or as the case
may be, at any California State or Federal Courts generally serving the
Santa Xxxxx County area with respect to the subject matter of this
agreement.
Page 9
30. AUTHORITY
Purchaser and Manufacturer each represent to the other that it has due and
proper authority to make and perform all duties and obligations stipulated
herein and contemplated by this Agreement.
31. INTEGRATION
This Agreement embodies the entire understanding of the parties as it
relates to the subject matter hereof. This Agreement supersedes any prior
agreements or understandings between the parties as to this subject matter.
No amendment or modification of this Agreement shall be valid or binding
upon the parties unless in writing and signed by an officer of each party.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year showed below.
DIGITAL MICROWAVE CORP. MICROELECTRONICS TECHNOLOGY INC.
XXXX XXXX Xxxxx Xxx
Director of Product VP Sales & Special Assistants to
/ Technology Transfer Chairman of Executive Committee
/s/ Xxxx Xxxx /s/ Xxxxx Xxx
---------------------------- ---------------------------------
Signature Authorized Signature
1/20/98 2/6/98
---------------------------- ---------------------------------
Acceptance Date Acceptance Date
Page 10
LIST OF APPENDICES
APPENDIX A MANUFACTURER'S PRODUCTS
APPENDIX B PURCHASER SUPPLIED MATERIAL
APPENDIX C SCOPE OF WORK
APPENDIX D DMC QUALITY STANDARD
APPENDIX E NON-DISCLOSURE AGREEMENT
APPENDIX F PRODUCT TEST PROCEDURES
APPENDIX G PRICING
Page 11
APPENDIX A
AUTHORIZED PRODUCTS
This Appendix lists the Products covered by this Agreement.
MAGNUM
[*] Assembly Drawing [*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*] [*]
[*]
[*] [*]
[*]
CLASSICII
[*] [*]
[*] [*]
[*] [*]
SPECTRUMII
[*] [*]
[*]
[*]
[*]
[*]
[*]
Applicable Drawings
Applicable Documents
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[*] OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. THE MATERIAL HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
APPENDIX B
MATERIALS PROVIDED BY PURCHASER
This Appendix lists the Materials provided by Purchaser for each Product
Manufacturer is to produce.
B.1 Top Level Assembly Drawing Number: (Appendix A)
Material Provided (quantity provided as required to meet Purchaser's
schedule):
DESCRIPTION PART NUMBER ASSET NUMBER
----------- ----------- ------------
SpectrumII [*]ghz ODU
Test Fixtures
Test Equipment
Miscellaneous:
Shipping Box, Shipping Inserts, Config. Label, Manual
Page 13
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[*] OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. THE MATERIAL HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
APPENDIX C
SCOPE OF WORK
This Appendix lists the Scope of Work to be performed by the Manufacturer.
1. RECEIVING OF MATERIAL - [*]
2. INSPECTION OF MATERIAL - [*]
3. STORAGE OF COMPONENTS - [*]
4. KIT AND STAGE - [*]
5. BOARD LEVEL FUNCTIONAL TEST - [*]
6. PRODUCT ASSEMBLY - [*]
7. BURN-IN - [*]
8. UNIT LEVEL TEST - [*]
9. CERTIFICATE OF CONFORMANCE - [*]
10 PACKING - [*]
11. STORAGE - [*]
12. SHIPPING - [*]
Page 14
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[*] OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. THE MATERIAL HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
[*]
APPENDIX D
DMC QUALITY STANDARD
DMC QUALITY PLAN (PENDING)
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[*] OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. THE MATERIAL HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
APPENDIX E
NON-DISCLOSURE AGREEMENT
WHEREAS, Digital Microwave Corporation (DMC) ("Disclosing Party") has developed
unique and proprietary technology, business strategies and financial
information;
WHEREAS, Microelectronics Technology Inc. (MTI) ("Receiving Party") has
approached Disclosing Party concerning a relationship between the Disclosing
Party and the Receiving Party: and
WHEREAS, the Disclosing Party is interested in discussing the possibility of
such a relationship with the Receiving Party;
NOW, THEREFORE:
The Receiving Party understands that the Disclosing Party has disclosed or may
disclose information (including, without limitation, certain proprietary
technology, business strategies, code, algorithms, names and expertise of
employees and consultants, know-how, formulas, processes, ideas inventions
(whether patentable or not), schematics and other technical, business, financial
and product development plans, forecasts, strategies and information), which to
the extent previously, presently, or subsequently disclosed to the Receiving
Party is hereinafter referred to as "Proprietary Information" of the Disclosing
Party.
In consideration of the parties' discussions and any access the Receiving Party
may have to Proprietary Information of the Disclosing Party, the Receiving Party
hereby agrees as follows:
1. The Receiving Party agrees (i) to hold the Disclosing Party's
Proprietary Information in confidence as a fiduciary and to take all
necessary precautions to protect such Proprietary Information
(including, without limitation, all precautions the Receiving Party
employs with respect to its confidential materials, (ii) not to
divulge any such Proprietary Information or any information derived
therefrom to any third person, (iii) not to make any use whatsoever at
any time of such Proprietary Information except to evaluate internally
whether to enter into the currently contemplated business relationship
with the Disclosing Party, (iv) not to copy or reverse engineer,
reverse, compile or attempt to derive the composition or underlying
information of any such Proprietary Information. Any employee
affiliated with the Receiving Party given access to any such
Proprietary Information shall be
Page 16
similarly bound in writing. Without granting any right or license, the
Disclosing Party agrees that the foregoing shall not apply with
respect to information the Receiving Party can document (i) is in the
public domain (and is readily available without substantial effort) at
the time of disclosure or which thereafter enters the pubic domain
(and is readily available without substantial effort), through no
improper action or inaction by the Receiving Party or any affiliate,
agent or fellow employee, or (ii) is in its possession or known by it
other than by receipt from the Disclosing Party, or (iii) is
rightfully disclosed to it by another person without restriction, or
(iv) is independently developed without reference to the disclosed
information.
2. Immediately upon a request by the Disclosing Party at any time (which
will be effective if actually received or if mailed First class
postage prepaid to the Receiving Party's address herein), the
Receiving Party will turn over to the Disclosing Party all Proprietary
Information of the Disclosing Party and all documents or media
containing any such Proprietary Information and any and all copies or
extracts thereof. The Receiving Party understands that nothing herein
requires the Disclosing Party to proceed with any proposed transaction
or relationship in connection with which Proprietary Information may
be disclosed.
3. Except to the extent required by law, neither party shall disclose the
existence or subject matter of the negotiations or business
relationship contemplated by this Agreement.
4. The Receiving Party acknowledges and agrees that due to the unique
nature of the Disclosing Party's Proprietary Information, there can be
no adequate remedy at law for any breach of its obligations hereunder,
that any such breach may allow the Receiving Party or third parties to
unfairly compete with the Disclosing Party resulting in irreparable
harm to the Disclosing Party and therefore, that upon any such breach
or any threat thereof, the Disclosing Party shall be entitled to
appropriate equitable relief in addition to whatever remedies it might
have at law and to be indemnified by the Receiving Party from any loss
or harm, including, without limitation, attorney's fees, in connection
with any breach or enforcement of the Receiving Party's obligations
hereunder or the unauthorized use or release of any such Proprietary
Information. The Receiving Party will notify the Disclosing Party in
writing immediately upon the occurrence of any such unauthorized
release or other breach. In the event that any of the provisions of
this statement shall be held by a court order or other tribunal of
competent jurisdiction to be unenforceable, the remaining portions
hereof shall remain in full force and effect. This Agreement
supersedes all prior discussions and writings and constitutes the
entire agreement between the parties with respect to the
Page 17
subject matter hereof. No waiver or modification of this Agreement
will be binding upon either party unless made in writing and signed by
a duly authorized representative of such party or the Receiving Party
and no failure or delay in enforcing any right will be deemed a
waiver.
5. This Agreement shall be governed by the laws of the State of
California, without regard to conflicts of laws provisions thereof and
each party submits to the jurisdiction and venue of any California
State or federal Courts generally serving the Santa Xxxxx County area
with respect to the subject matter of the Agreement.
Digital Microwave Corporation, Microelectronics Technology Inc.
The Disclosing Party The Receiving Party
Xxxx Xxxx Xxxxx Xxx
Director of Product / Technology VP Sales & Special Assistants to
Transfer Chairman of Executive Committee
/s/ Xxxx Xxxx /s/ Xxxxx Xxx
------------------------------------- ----------------------------------
Signature Authorized Signature
1/20/98 2/6/98
------------------------------------- ----------------------------------
Acceptance Date Acceptance Date
Page 18
APPENDIX F
PRODUCT TEST PROCEDURES
Page 19
APPENDIX G
PRICING
--------------------------------- ----------------------------------
PRODUCT PER UNIT PRODUCT COST PER UNIT
COST COST
--------------------------------- ----------------------------------
M2 RF: PROT QPSK
------ ---------
M3:
---
N/P,SP, [*] 2X/4X [*]
RF
N/P,HP, [*] 8X/16X [*]
RF X
PROT,SP,RF [*]
PROT,HP,RF [*] TERMINAL PRICE:
---------------
N/P,SP,RF,4 [*]
E1
MDM QPSK M3: N/P,HP,RF,4 [*]
------------ E1
2X [*] PROT,SP,RF, [*]
4E1
4X [*] PROT,HP,RF [*]
,4E1
8X [*]
16X [*] N/P,SP,RF,16 [*]
E1
N/P,HP,RF,1 [*]
6E1
---------------------------------
PROT,SP,RF,16E1 [*]
PROT,HP,RF,16E1 [*]
--------------------------------- ----------------------------------
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[*] OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. THE MATERIAL HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
