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EXHIBIT 10.18
PRODUCT SUPPLY AGREEMENT
This Product Supply Agreement ("Agreement") is effective as of March 16,
1999, ("Effective Date"), by and between GlobeSpan Semiconductor Inc., a
Delaware corporation, with offices at 000 Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxxxx
00000 ("GSI"), and Paradyne Corporation, a Delaware corporation with offices at
0000 000xx Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000 ("Paradyne").
WHEREAS, the parties wish to enter into an agreement which will define the
terms and conditions under which GlobeSpan will sell and Paradyne will buy GSI
PRODUCTS.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
exchanged between the parties contained herein, which consideration GSI and
Paradyne acknowledge is sufficient, the parties hereby agree as follows:
ARTICLE I
SALE AND PURCHASE OF GSI PRODUCTS
From time to time, Paradyne may order and purchase GSI PRODUCTS from GSI.
Paradyne shall purchase GSI PRODUCTS in accordance with the TERMS AND CONDITIONS
OF SALE attached hereto as Exhibit A ("Terms and Conditions"). GSI shall accept
all purchase orders for quantities of GSI PRODUCTS that are reasonably
consistent with past ordering practices and known product availability, provide
written acknowledgment of each Paradyne purchase order by fax, EDI or e-mail
within two (2) days after receipt and shall provide written confirmation of the
GSI PRODUCTS' shipment dates by fax, EDI or e-mail within four (4) days. GSI
will use diligent efforts to fill any order for GSI PRODUCTS by the desired
delivery date. GSI may allocate the supply of GSI PRODUCTS to meet the
requirements of multiple customers, provided that Paradyne receives priority for
its orders at least as good as any other similarly situated customer, but in no
case shall Paradyne receive priority less than the priority GSI gives to its
most highly preferred customers. It is the intention of the parties that this
Agreement and the Terms and Conditions be controlling over additional or
different terms of any order, confirmation, invoice or similar document, even if
accepted in writing by both parties, and that waivers and amendments shall be
effective only if made by non-preprinted agreements clearly understood by both
parties to be an amendment or waiver. If there are any conflicts between the
Terms and Conditions and this Agreement, this Agreement shall control.
ARTICLE II
SUPPORT
GSI shall, at no cost to Paradyne, provide commercially reasonable
telephone, facsimile and e-mail support and technical assistance to assist
Paradyne in the use of GSI PRODUCTS and their incorporation into Paradyne
products. GSI shall also make available to Paradyne all additional technical,
development, user and other types of support and upgrade
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services that GSI makes generally available to any third party. Paradyne shall
pay to GSI the current standard rates, plus expenses, for such support services;
provided, however, that GSI will charge Paradyne no more than GSI charges any
other customer for such services.
ARTICLE III
PRICING
GSI shall charge Paradyne[+]. If such audit determines that price
adjustments of more than 5% of the total value of orders during the period
audited are required GSI shall reimburse Paradyne for its costs related to such
audit. In the event that GSI announces the discontinuation of a GSI PRODUCT, and
after such discontinuation GSI increases the prices charged for such GSI
PRODUCT, then Paradyne shall pay[+].
ARTICLE IV
DISCLOSED TECHNICAL INFORMATION
GSI hereby grants to Paradyne immunity under all of its IP RIGHTS with
respect to any of Paradyne's products which incorporate GSI PRODUCTS. Paradyne
may extend and shall be deemed to have extended such immunity to its customers
and users in connection with the sale of Paradyne products which incorporate the
GSI PRODUCTS.
[+] Confidential treatment has been requested for certain portions which have
been blacked out in the copy of the exhibit filed with the Securities and
Exchange Commission. The omitted information has been filed separately with
the Securities and Exchange Commission pursuant to the application for
confidential treatment.
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ARTICLE V
CONFIDENTIALITY
Each party agrees that all CONFIDENTIAL INFORMATION it obtains from the
other party is the confidential property of the disclosing party. Except as
expressly and unambiguously allowed herein, the receiving party will hold in
confidence and not use or disclose any CONFIDENTIAL INFORMATION of the
disclosing party and shall similarly bind its employees in writing. The
receiving party shall not be obligated under this Article V with respect to
information the receiving party can document:
(i) is or has become readily publicly available without restriction
through no fault of the receiving party or its employees or agents; or
(ii) is received without restriction from a third party lawfully in
possession of such information and lawfully empowered to disclose such
information; or
(iii) was rightfully in the possession of the receiving party without
restriction prior to its disclosure by the other party; or
(iv) was independently developed by employees or consultants of the
receiving party without access to such CONFIDENTIAL INFORMATION.
ARTICLE VI
TERM
This Agreement will commence on the Effective Date and will continue until
the fourth anniversary of the Effective Date and shall continue there after
until such time as either party shall give one year's advance written notice of
intent to terminate.
ARTICLE VII
TERMINATION
1. Either party will have the right to terminate this Agreement upon thirty
(30) days written notice if: (i) the other party is in material breach of this
Agreement and fails to cure that breach within the notice period; or (ii) the
other party ceases to do business, commences voluntary insolvency or bankruptcy
proceedings, or such proceedings are initiated involuntarily and not dismissed
within sixty (60) days of commencement.
2. Upon any termination of this Agreement, each party immediately will
deliver to the other party in its possession and will destroy all documents or
electronic media which contain CONFIDENTIAL INFORMATION of the other party;
provided, however, that Paradyne and its customers shall continue to be allowed
to retain copies such rights granted by GSI in connection with their purchase
and use of GSI PRODUCTS.
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3. Any unfilled purchase orders for GSI PRODUCTS at the time of termination
of this Agreement shall remain in effect until completed unless the party
terminating the Agreement provides written notice to the other party that such
unfilled purchase orders are also terminated, or unless the parties mutually
agree to terminate such unfilled purchase orders.
4. All outstanding rights to payment shall survive termination of this
Agreement for any reason. Articles V, and VII through XVIII shall survive the
termination of this Agreement.
ARTICLE VIII
LIMITATION OF LIABILITY
EXCEPT FOR BODILY INJURY, OR IN CONNECTION WITH ARTICLE V, NEITHER PARTY
WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR
ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS FOR
COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
ARTICLE IX
FORCE MAJEURE
EXCEPT FOR THE REQUIREMENT TO MAKE ANY PAYMENTS HEREUNDER, NEITHER PARTY
WILL BE DEEMED IN DEFAULT OF THIS AGREEMENT TO THE EXTENT THAT PERFORMANCE OF
ITS OBLIGATIONS OR ATTEMPTS TO CURE ANY BREACH ARE DELAYED OR PREVENTED BY
REASON OF ANY ACT OF GOD, FIRE, NATURAL DISASTER, ACCIDENT, ACT OF GOVERNMENT,
STRIKES, SHORTAGES OF MATERIAL OR SUPPLIES OR ANY OTHER CAUSE BEYOND THE
REASONABLE CONTROL OF SUCH PARTY ("FORCE MAJEURE"), PROVIDED THAT SUCH PARTY
GIVES THE OTHER PARTY WRITTEN NOTICE THEREOF PROMPTLY AND, IN ANY EVENT, WITHIN
FIFTEEN (15) DAYS OF DISCOVERY THEREOF AND USES GOOD FAITH EFFORTS TO SO PERFORM
OR CURE.
ARTICLE X
PUBLICITY
Without the prior written consent of the other party, neither party may use
any trademarks, service marks, trade names, logos or other commercial or product
designations of the other party, including, but not limited to, in connection
with any press releases, promotions, advertisements or exhibitions.
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ARTICLE XI
ASSIGNMENT
1. The rights and liabilities of the parties under this Agreement will bind
and inure to the benefit of the parties' respective successors permitted
pursuant to this Article XII.
2. Neither party may assign or delegate its obligations under this
Agreement, either in whole or in part, without the prior written consent of the
other party, and any such attempted assignment or delegation shall be void and
without effect; provided, however, that a party may assign this Agreement as
part of a merger, re-organization, consolidation, acquisition of all of the
assets of such party, or other event in which securities possessing more than
fifty percent (50%) of the total combined voting power of such party are
transferred to persons different from the persons holding those securities
immediately prior to such event ("Change of Control Event"), subject to Section
11.3, below.
3. Notwithstanding Section 11.2, and as an exception thereto, if a party
assigns this Agreement (including, but not limited to, taking part in a Change
of Control Event) to a direct competitor of the other party, then: (i) the
assigning party shall give the other party prompt written notice of the
occurrence of such assignment; and, (ii) the non-assigning party shall have the
right to terminate this Agreement by providing written notice to the assigning
party within thirty (30) days of receiving notice of the assignment or Change of
Control Event.
ARTICLE XII
NOTICES
All notices, reports, requests, acceptances and other communications
required or permitted under this Agreement will be in writing. They will be
deemed given:
(a) when delivered personally;
(b) when sent by confirmed fax or telex;
(c) five days after having been sent by commercial overnight courier
with written verification of receipt; or
(d) two weeks after having been sent by registered or certified
airmail, return receipt requested, postage prepaid, or upon actual receipt
thereof, whichever first occurs.
To GSI:
GlobeSpan Semiconductors, Inc.
000 Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: President
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To Paradyne:
Paradyne Corporation
0000 000xx Xxx. X.
Xxxxx, Xxxxxxx 00000
Attention: President
ARTICLE XIII
GOVERNING LAW
This Agreement shall in all respect be governed by and construed under the
laws of the State of Florida without regard to its conflict of laws provisions
or the UN Convention on the International Sale of Goods).
ARTICLE XIV
ARBITRATION
Except for a breach of the provisions of Article V which may be addressed
pursuant to Article XVI, all disputes between the parties arising out of or
relating to this Agreement, or the breach or alleged breach hereof, shall be
submitted to binding arbitration. The arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). Each party shall bear its own expenses; the parties will
mutually share the AAA administrative fees and the arbitrator's expenses. A
single arbitrator shall be selected by the parties in accordance with the AAA
selection rules. The arbitrator shall determine issues of arbitrability but may
not limit, expand or otherwise modify the terms of this Agreement. The
arbitration shall be conducted in English, in Atlanta, Georgia, or in some other
location that is mutually agreed to by the parties. The arbitrator shall have no
authority to award punitive damages. Judgment upon an award may be entered in
any court having competent jurisdiction. All transcripts, documents, things and
other information produced and the testimony given in or attendant to the
arbitration proceeding(s) shall be used only for purposes of the arbitration
proceeding(s). If an arbitration action is commenced for breach of this
Agreement, the prevailing party shall be entitled to its attorneys' fees and
costs.
ARTICLE XV
AMENDMENTS, MODIFICATIONS, WAIVERS, UNENFORCEABILTY
No delay or failure by either party to exercise or enforce at any time any
right or provision of this Agreement will be considered a waiver thereof or of
such party's right thereafter to exercise or enforce each and every right and
provision of this Agreement. No single waiver will constitute a continuing or
subsequent waiver. No waiver, modification or amendment or any provision of this
Agreement will be effective unless it is in writing and signed by the parties,
but it need not be supported by consideration. In the event that any provision
of this Agreement shall be determined to be illegal or unenforceable, that
provision will be limited
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or eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable.
ARTICLE XVI
EQUITABLE RELIEF
Because each party will have access to and become acquainted with
CONFIDENTIAL INFORMATION of the other, the unauthorized use or disclosure of
which would cause irreparable harm and significant injury which would be
difficult to ascertain and which would not be compensable by damages alone, each
party agrees that the other party will have the right to enforce this Agreement
and any of its provisions by injunction, specific performance or other equitable
relief without prejudice to any other rights and remedies that it may have for
breach of this Agreement.
ARTICLE XVII
ENTIRE AGREEMENT
1. The terms and conditions of this Agreement shall prevail in the event of
any conflicting terms or legends which appear in any purchase order for GSI
PRODUCTS.
2. This Agreement is the entire agreement between the parties with respect
to the subject matter hereof. This Agreement supersedes all prior agreements,
proposals or understandings between the parties, whether oral or in writing,
with respect to the subject matter hereof. This Agreement specifically
supersedes the Cooperative Development Agreement and the Rider, which are hereby
terminated, along with all licenses granted therein. The parties shall arrange a
mutually acceptable procedure and schedule for the return of all documents,
leased equipment, CONFIDENTIAL INFORMATION, and other materials of a party that
are in the possession of the other party by virtue of the Cooperative
Development Agreement or the Rider.
ARTICLE XVIII
NONSOLICITATION
Unless otherwise mutually agreed to, each party agrees not to
solicit the employment of any employee of the other party during the term of
this Agreement and for a period of twelve (12) consecutive months thereafter.
This Article shall not apply to general public solicitations made by a party
that do not target particular employees of the other party.
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ARTICLE XIX
DEFINITIONS
Any term in capital letters used in this Agreement shall have the meaning
specified below:
GSI PRODUCT means any product on GSI's current generally available product
and price list. GSI shall notify Paradyne of changes to the product and price
list as soon as reasonably possible, and in no case later than any other
customer.
CONFIDENTIAL INFORMATION means any informative technical material, software
and firmware (including all copies derived from material furnished hereunder)
provided by a party to the other that is marked as, or otherwise reasonably
understood by the receiving party to be, confidential or proprietary. All IP
RIGHTS of a party is hereby deemed to be CONFIDENTIAL INFORMATION of that party.
IP RIGHTS means all patent, copyright, trade secret and other proprietary
rights that GSI owns or which it has the right to license hereunder without the
payment of royalties and which are reasonably essential for the use of GSI
PRODUCTS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates set forth below.
GLOBESPAN SEMICONDUCTOR INC. PARADYNE CORPORATION
By: By:
----------------------------- -----------------------------
Its: Its:
----------------------------- -----------------------------
Date: Date:
---------------------------- ----------------------------
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EXHIBIT A
TERMS AND CONDITIONS OF SALE
1. DELIVERY, TITLE, AND RISK OF LOSS - Shipment will be made in a manner
determined by GSI. Title (except as provided in Section 7, ("RIGHTS IN
INTELLECTUAL PROPERTY") and risk of loss or damage to the product shall pass to
Paradyne at the time GSI delivers possession of the product to a carrier at
GSI's plant or warehouse or other facility from which shipment is made without
regard to notification of shipment or selection of carrier. Product held by GSI
at Paradyne's request beyond the scheduled delivery date shall be at Paradyne's
risk and expense.
2. ORDER RESCHEDULE/CANCELLATION POLICY - The following terms and
conditions apply for rescheduling ship dates on purchase orders, or canceling
purchase orders after acceptance by GSI.
----------------------------------------- -------------------------------------------------
Time period in calendar days before Paradyne Reschedule Option
scheduled ship date
----------------------------------------- -------------------------------------------------
More than 90 days No limit on number of reschedules; no penalty
----------------------------------------- -------------------------------------------------
30 days to 90 days Reschedule one time (by not more than _________
days) without penalty
----------------------------------------- -------------------------------------------------
Less than 30 days 100% of value of cancelled shipment
----------------------------------------- -------------------------------------------------
3. PAYMENT TERMS - Paradyne shall pay to GSI for orders of GSI product at
prices in effect at the applicable order date for such products. Ally payments
for Product shall be made in US dollars, and will be due within thirty (30) days
of the date of GSI's invoice to Paradyne for such orders. GSI may ship partial
orders provided GSI notifies Paradyne and Paradyne agrees prior to shipment,
which consent shall not be unreasonably withheld. GSI shall ship according to
the carrier, means of transportation and routing, and instructions specified in
Paradyne's purchase order, or, in the absence of specified deliver means and
instructions, by a commercially reasonable means. In addition to the price,
Paradyne will pay all charges, including without limitation transportation
charges, insurance premiums, and shall be responsible for all taxes (except
GSI's U.S. income taxes), duties, costs of compliance with export and import
controls and regulations, and other governmental assessments. GSI may exercise
an option to assess an interest charge of up to one and one-half percent
(1-1/2%) per month on all amounts which are not timely paid (but not to exceed
the maximum lawful rate). Paradyne hereby grants to GSI a purchase money
security interest in the product to secure the purchase price of the product
until the purchase price is paid in full. Paradyne agrees to execute and deliver
all documents requested by GSI to perfect and maintain GSI's security interest.
Each shipment shall constitute an independent transaction and Paradyne shall pay
for same in accordance with the specified payment terms.
4. TAXES - Any tax or related charge that GSI shall be required to pay to
or collect for any government upon or with respect to services rendered or the
sale, use, or delivery of products shall be billed too Paradyne as a separate
item and paid by Paradyne, unless a valid exemption certificate is furnished by
Paradyne to GSI.
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5. PRODUCT CHANGES - GSI may at any time make changes in the products (i)
that do not materially affect physical or functional interchangeability or (ii)
when required for purposes of safety.
6. WARRANTY - GSI warrants that each Product that is in general commercial
production, but not related services or prototypes of any such Products, to be
free from material defects in material and workmanship and to be in conformance
in form, fit and function with the written specification, if any, and referenced
in an order accepted by GSI. If any defect in material or workmanship or failure
to conform to such specification ("Defect") is suspected in any such Products,
Paradyne, after obtaining a Returned Material Authorization number from GSI,
shall ship suspected defective samples of the Products to GSI, following GSI's
instructions regarding the return. No product will be accepted for repair,
replacement, credit, or refund without the written authorization of and in
accordance with GSI's instructions. GSI shall analyze the failures, making use,
when appropriate, of technical information provided by Paradyne relating to the
circumstances surrounding the failures. GSI will verify whether any Defect
appears in the products. If GSI determines that the returned products are not
defective, Paradyne shall pay GSI all costs of handling, inspection, repairs,
and transportation at GSI's then prevailing rates. GSI shall, at GSI's option,
either credit or refund without charge at GSI's manufacturing or repair facility
the purchase price, repair, or replace the defective product with the same or
equivalent product provided: (i) Paradyne notifies GSI in writing of the claimed
Defect within thirty (30) days after Paradyne knows or reasonably should know of
the claimed Defect, (ii) GSI's examination of the Products discloses that the
claimed Defect actually exists, and (iii) the defect appears within one (1) year
from the date of shipment of the product. In the event of a replacement, GSI
shall ship the replacing Products FOB point of origin, freight prepaid to
Paradyne's destination. Any replaced Product shall become GSI's property. The
method of disposition of any replaced Products will be as mutually agreed by
both parties in writing. In no event shall GSI be responsible for deinstallation
or reinstallation of any Product or for the expenses thereof. Repairs and
replacements covered by the above warranty are warranted to be free from defects
as set forth above. Inspection and acceptance of Products by Paradyne and/or
payment therefor shall not relieve GSI of responsibilities hereunder.
The above warranty does not apply to, and GSI makes no warranties with
respect to products that: are software programs, experimental products or
prototypes (all of which are provided "AS IS"), or to Products which have been
subjected to misuse, neglect, accident or abuse, or operating or environmental
conditions that deviate from the parameters established in applicable
specifications; or have been improperly installed, stored, maintained, repaired,
or altered by anyone other than GSI; or have had their serial numbers or month
and year of manufacture or shipment removed, defected, or altered. This warranty
does not extend to any system into which a product is incorporated. No other
warranty, including warranties of merchantability or fitness for a particular
purpose is given with respect to such service or any other service provided by
GSI under this Agreement. This warranty applies only to Paradyne and may not be
assigned or extended by Paradyne to any of its customers or other users of the
Products. GSI will not accept any returns from Paradyne's customers or users of
Paradyne's products.
EXCEPT AS STATED IN THE SECTION ENTITLED WARANTY, GSI, ITS SUBSIDIARIES AND
AFFILIATES, SUBCONTRACTORS, AND SUPPLIERS MAKE NO
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WARRANTIES, EXPRESSED OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER'S SOLE AND EXCLUSIVE
REMEDY SHALL BE GSI'S OBLIGATION TO REPAIR OR REPLACE OR CREDIT RO REFUND AS SET
FORTH ABOVE.
7. RIGHTS IN INTELLECTUAL PROPERTY - GSI exclusively shall own all right,
title, and interest in and to any inventions, discoveries, improvements,
methods, ideas, computer, and other apparatus programs and related
documentation, other works of authorship fixed in any tangible medium of
expression, mask works or other forms of intellectual property, whether or not
patentable, copyrightable, or subject to mask work rights or other forms of
protection, which are made, created, developed, written, conceived, or first
reduced to practice by GSI solely, jointly or on its behalf, in the course of,
arising out of or as a result of work done under this Agreement.
No title or other ownership rights in any intellectual property or licensed
products or any copies thereof shall pass to Paradyne under this Agreement or
any performance hereunder.
Paradyne agrees that it will not alter any notices on, prepare derivative
works based on, or reproduce, reverse engineer, disassemble or decompile any
software embodied in licensed products or recorded in the purchased products
furnished under this agreement.
Subject to and conditional on the terms and conditions of, and only for a
period of five years from the date of this Agreement, GSI grants to Paradyne a
non-sublicensable, non-transferable and non-exclusive: (a) right and license to
use any technical information supplied to Paradyne by GSI solely for the
development, manufacture, sale, support, and use by Paradyne in its products,
and (b) immunity under certain patents owned by Lucent Technologies Inc.
("Lucent"), where Lucent has given GSI the royalty-free right to grant such
immunity; provided that, and only to the extent that such patents are essential
to, and used for, the manufacture of, and are used specifically in conjunction
with the product sold hereunder but only for board and system level Paradyne
products incorporating the technical information or products supplied by GSI.
INTELLECTUAL PROPERTY INDEMNITY - GSI shall hold Paradyne and its officers,
directors, agents and employees harmless from liability resulting from
infringement by the product of any US patent or copyright, provided GSI is
promptly notified of any, and all threats, claims and proceedings related
thereto and given reasonable assistance and the opportunity to assume sole
control over the defense and all negotiations for a settlement or compromise.
GSI will not be responsible for any settlement it does not approve in writing.
The foregoing obligation of GSI does not apply with respect to product or
portions or components: (i) not supplied by GSI, (ii) made in whole or in party
in accordance to Paradyne specifications or requests, (iii) which are modified
after shipment, if the alleged infringement relates to such modification, (iv)
combined, processed or sued with other products, processes or materials where
the alleged infringement relates to such combination, process or use, (v) where
Paradyne continues allegedly infringing activity after being notified thereof or
after being informed of modifications that would have avoided the alleged
infringement, (vi) where the infringement is incident to use of the product but
does not result primarily from the product and its intended
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application, or (vii) where GSI has required the return of the product or
component and has offered to refund the purchase price. Paradyne will indemnify
GSI and its officers, directors, agents and employees from all damages,
settlements, attorneys' fees and expenses: (i) related to a claim of
infringement or misappropriation excluded from GSI's indemnity obligation by the
immediately preceding sentence or (ii) in connection with Paradyne's activities
regarding the product or its failure to effectively pass on to its direct or
indirect customers GSI's liability and warranty limitations and disclaimers.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDY AND OBLIGATION OF THE
PARTIES HERETO FOR INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY
RIGHTS ARISING OUT OF THIS AGREEMENT AND IS IN LIEU OF ALL WARRANTIES,
EXPRESSED, IMPLIED, OR STATUTORY, IN REGARD THERETO.
8. FCPA AND EXPORT CONTROL - Paradyne shall comply with the U.S. Foreign
Corrupt Practices Act (regarding, among other things, payments to government
officials) and all export laws and restrictions and regulations of the
Department of Commerce, the United States Department of Treasury Office of
Foreign Assets Control ("OFAC"), or other United States or foreign agency or
authority, and not export, or allow the export or re-export of any product (or
any product incorporating such product) to destinations in Country Group E,
Embargoed countries, specified in the then-current Supplement No. 1 to Section
740 of the U.S. Export Administration Regulations, (or any successor supplement
or regulations), or in violation of any such restrictions, laws or regulations.
Paradyne shall obtain and bear all expenses relating to any necessary licenses
and/or exemptions with respect to the export from the U.S. of all product to any
location and shall demonstrate to GSI compliance with all applicable laws and
regulations prior to delivery thereof by GSI.
9. EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY
FOR PURPOSES OF THE EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY SET
FORTH IN THIS SECTION 9, GSI SHALL BE DEEMED TO INCLUDE ITS SUBSIDIARIES AND
AFFILIATES, AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES,
SUBCONTRACTORS, AND SUPPLIERS OF EACH OF THEM; AND "DAMAGES" SHALL BE DEEMED TO
REFER COLLECTIVELY TO ALL INJURY, DAMAGE, LOSS, OR EXPENSE INCURRED.
EXCEPT FOR INFRINGEMENT, FOR WHICH THE REMEDIES SET FORTH IN THE SECTION
ENTITLED INTELLECTUAL PROPERTY INDEMNITY SHALL CONTROL, GSI'S ENTIRE LIABILITY
AND PARADYNE'S EXCLUSIVE REMEDIES AGAINST GSI FOR ANY DAMAGES CAUSED BY A NY
PRODUCT DEFECT OR FAILURE, OR ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF
ANY WORK, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT INCLUDING
NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES
THAT ARE PROVEN, IN AN AMOUNT NOT TO EXCEED THE AMOUNTS PAID FOR PRODUCTS
HEREUNDER.
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NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY SHALL
BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
OR FOR LOST PROFITS, SAVINGS, OR REVENUE OF ANY KIND, WHETHER OR NOT SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL
SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
10. NON-WAIVER - No course or dealing of failure of either party to
strictly enforce any term, right, or condition of this Agreement shall be
construed as a waiver of such term, right, or condition.
11. EXCUSE OF PERFORMANCE - Except with respect to Paradyne's obligation to
make timely payments when due, neither party shall be held responsible for any
delay or failure in performance of any part of this Agreement to the extent such
delay or failure is caused by fire, flood, explosion, war, strike, embargo,
government requirement, civil or military authority, act of God, nature or the
public enemy, inability to secure material or transportation facilities,
inadequate yield of products despite GSI's reasonable efforts, act or omission
of carriers or any other causes beyond its reasonable control. GSI may, in the
event of any such circumstance, allocate in a fair and reasonable manner taking
into account GSI's contractual commitments, its available production output
among itself and its other customers, including at GSI's option those not under
contract.
12. CHOICE OF LAW - The construction, interpretation, and performance of
this Agreement shall be governed by the substantive laws, but not the conflicts
of the law, of the State of New York. The U.N. Convention on the International
Sales of Goods shall not apply to the sale of product hereunder.
13. INDENTIFICATION - Neither GSI nor Paradyne shall use any identification
of, or reference to, any code, drawing, specification, trade name, trademark,
trade device, insignia, service xxxx, symbol, or any abbreviation, contraction,
or simulation thereof, of the other party in any advertising or promotional
efforts without such other party's prior approval.
CONFIDENTIAL INFORMATION means any informative technical material, software
and firmware (including all copies derived from material furnished hereunder)
provided by a party to the other that is marked as, or otherwise reasonably
understood by the receiving party to be, confidential or proprietary. ALL IP
RIGHTS of a party is hereby deemed to be CONFIDENTIAL INFORMATION of that party.
IP RIGHTS means all patent, copyright, trade secret and other proprietary
rights that GSI owns or which is has the right to license hereunder without the
payment of royalties and which are reasonably essential for the use of GSI
PRODUCTS.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates set forth below.
CLOBESPAN SEMICONDUCTOR INC. PARADYNE CORPORATION
By: By:
------------------------ ------------------------
Its: CEO Its: S.V.P.
------------------------ ------------------------
Date: 3/16/99 Date: 3/16/99
------------------------ ------------------------
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