EXHIBIT 10(x)
AGREEMENT
Between
EIP MICROWAVE, INC.
And
SRI INTERNATIONAL
Dated as of September 11, 1995
EXHIBIT 10(x)
AGREEMENT
THIS AGREEMENT made as of this 11th day of September, 1995.
BETWEEN: EIP MICROWAVE, INC.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: President
SRI INTERNATIONAL
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: Office of Technology Commercialization
WITNESSETH
WHEREAS, SRI International, a California nonprofit public benefit
corporation ("SRI"), designs, manufacturers (or has manufactured for it) and
sells VXI-based Multipurpose Data Modulators (also known as Simcards) and the
other products identified on Schedule 1 hereto (collectively, the "PRODUCTS"),
and desires to supply the Products pursuant to the terms hereof;
WHEREAS, SRI has developed the Product-related software and circuitware
identified on Schedule 2 hereto (the "SOFTWARE/CIRCUITWARE") and has developed
the Product-related and Software/Circuitware-related documentation identified on
Schedule 3 hereto (the "DOCUMENTATION"), and desires to license the
Software/Circuitware and Documentation pursuant to the terms hereof;
WHEREAS, EIP Microwave, Inc., a Delaware corporation ("EIP"), desires to
purchase quantities of the Products from time to time pursuant to the terms
hereof for resale throughout the world (the "TERRITORY"), either as individual
products or as component parts of other products of EIP;
WHEREAS, EIP desires to license the Software/Circuitware and Documentation
for reproduction and sublicensing to EIP's direct and indirect customers
throughout the Territory; and
WHEREAS, SRI and EIP each believes that resale of the Products and
sublicensing of the Software/Circuitware and the Documentation throughout the
Territory can best be accomplished through the efforts of EIP on an exclusive
basis, subject to the exceptions set forth herein with respect to certain SRI
customers;
NOW, THEREFORE, the parties hereto covenant and agree as follows:
RIGHT TO PURCHASE PRODUCTS
1. SRI hereby grants to EIP the exclusive (subject to Article 4) right to
purchase the Products for its own use and for resale throughout the Territory,
either as individual products or as component parts of other products of EIP.
SOFTWARE/CIRCUITWARE LICENSE
2. Subject to payment of the transfer prices pursuant to Article 7(b) and
8(b), SRI hereby grants to EIP an exclusive (subject to Article 4),
worldwide license
a. to use, reproduce and sublicense the Software/Circuitware provided to
EIP in object code form; and
b. to use and modify the source code identified as Item 1 of Schedule 2.
SRI will promptly deliver to EIP the items identified on Schedule 2.
DOCUMENTATION LICENSE
3. SRI hereby grants to EIP an exclusive (subject to Article 4), royalty-free,
worldwide license to use, modify, reproduce and sublicense the
Documentation. SRI will promptly deliver the Documentation to EIP upon
execution of this Agreement.
EXCEPTIONS TO EXCLUSIVITY
4. a. Notwithstanding the exclusive rights granted to EIP in Articles 1, 2
and 3, SRI shall retain the right to sell the Products and sublicense the
Software/Circuitware and the Documentation directly to the customers
identified on Schedule 4 hereto (the "SRI CUSTOMERS") for their own use and
not for resale. EIP shall have the right to sell the Products and
sublicense the Software/Circuitware and the Documentation to the SRI
Customers on a nonexclusive basis.
b. SRI shall not sell or otherwise transfer the Products and shall not
license or otherwise transfer the Software/Circuitware or the Documentation
to any third party, other than sales of the Products and licenses of the
Software/Circuitware or the Documentation (i) to SRI Customers for their
own use and (ii) to EIP for its own use and for resale and sublicense by
EIP. Except as set forth in this Article, SRI will not independently or in
association with others, sell, license or otherwise transfer, or assist in
the sale, license or other transfer, of any new or used products, software,
circuitware or documentation which are improvements to or competitive with
the Products, Software/Circuitware or Documentation (the "SRI
IMPROVEMENTS"). SRI shall refer to EIP all inquiries related to the
Products, Software/Circuitware or Documentation, other than inquiries from
SRI Customers.
c. In addition, SRI reserves the right to incorporate the Products as
component parts of systems sold by SRI to customers of its existing systems
development and integration services for their own use and not for resale,
PROVIDED that the Products are packaged in a unique manner so that they
cannot be identified by such customers or other third parties as SimCards
or other Products identified on Schedule 1 and that the Products
incorporated by SRI into such systems are only ancillary (rather than
fundamental) components of such systems.
IMPROVEMENTS
5. a. If SRI designs or develops SRI improvements, then such SRI
Improvements shall be deemed to be Product, Software/Circuitware and
Documentation, as applicable, subject to this Agreement, and SRI will
prepare and submit to EIP a revised Schedule 1, Schedule 2 or Schedule 3,
as applicable, which identifies such SRI Improvements. Such SRI
Improvements shall be the sole property of SRI, subject to the terms of
this Agreement. For purposes of this Agreement, "IMPROVEMENT" includes any
change which makes the Products, Software/Circuitware or Documentation more
effective or more useful or more valuable or in any way makes them
preferable articles of commerce.
b. If EIP designs or develops any product, software, circuitware or
documentation (including any additional version of the Products, the
Software/Circuitware or the Documentation) which is an improvement to, or
is competitive with the Products, the Software/Circuitware or the
Documentation (the "EIP IMPROVEMENTS"), the EIP Improvements shall be the
sole property of EIP, provided that SRI shall have the option to license
the right to use such EIP Improvements on such terms and conditions as the
parties mutually agree.
c. Without SRI's prior written consent, EIP shall not reverse engineer,
decompile or disassemble the Products or the Software/Circuitware for the
purpose of manufacturing, or subcontracting the manufacture of, the
Products or Software/Circuitware in contravention of this Agreement,
PROVIDED that reverse engineering, decompiling and disassembly of the
Products or the Software/Circuitware for the purpose of designing or
developing EIP Improvements shall not be deemed to contravene this
Agreement.
PRODUCT ORDERS
6. a. SRI shall fill with all reasonable dispatch all orders for Products
submitted by EIP under this Agreement. All Products shall be fully tested
by SRI prior to shipment to EIP. Products shall be supplied without logos
and without the SimCard designation.
b. All Products will be sold upon EIP's terms and conditions of purchase
in force at the date of acceptance of the relevant order, subject only to
the provisions of this Agreement which shall prevail in the event of any
inconsistency between this Agreement and those terms and conditions. The
terms and conditions currently in force are attached hereto as Schedule 5.
EIP shall give SRI prompt written notice of any change to Schedule 5.
c. EIP may request a specific and reasonable time of shipment for any
Products ordered.
PRODUCT PRICES AND SOFTWARE/CIRCUITWARE TRANSFER PRICES
7. a. The transfer prices for Products sold by SRI to EIP are indicated on
Schedule 1 hereto; provided that if any third party manufacturer to whom
SRI subcontracts the manufacture of any such Product increases or decreases
the cost to SRI for such manufacture, then the transfer price for such
Product shall be adjusted by a corresponding dollar amount. SRI shall
promptly deliver to EIP a revised Schedule 1 reflecting any such adjustment
in transfer prices. Any such adjustment shall be effective for orders
submitted more than 30 days after SRI delivers the revised Schedule 1 to
EIP. In addition, SRI agrees to negotiate reduced transfer prices to EIP
for each order of more than ten (10) units of any Product. EIP shall
reimburse SRI for any additional costs incurred by SRI if orders are
changed or canceled by EIP after acceptance by SRI.
b. EIP shall pay to SRI a transfer price per title in the amount set
forth on Schedule 2 hereto for each Software/Circuitware title sublicensed
by EIP to third parties.
PAYMENTS
8. a. Upon delivery of Products, SRI shall invoice EIP for the applicable
transfer price. EIP shall make all payments due under this Agreement by
check received within 30 days from the date of invoice.
b. EIP shall furnish SRI, within 30 days after each calendar quarter, a
written report setting forth (i) the quantity of each Software/Circuitware
title sublicensed by EIP to third parties during such calendar quarter and
(ii) the total transfer price payment due SRI with respect to the
Software/Circuitware titles sublicensed by EIP during such calendar
quarter. Each report shall be accompanied by a check payable to SRI in the
amount of such total transfer price payment.
DELIVERY, TITLE, AND RISK
9. All shipments of Products by SRI shall be C.I.P., EIP'S premises in
Milpitas, California . EIP shall take title to Products when delivered and
accepted at EIP's premises and all risks of loss and expenses incurred
prior thereto shall rest upon SRI, including without limitation, all risks
and expenses incurred in the transportation of the Products, and all
insurance, fees, charges, taxes and governmental charges. EIP shall have
ten days after delivery to accept or reject Products. Thereafter, EIP will
be deemed to have accepted such Products whether or not such acceptance is
conveyed to SRI.
OBLIGATIONS OF EIP
10. As an inducement to SRI to enter into this Agreement, EIP shall
a. use all reasonable efforts and diligence to promote and expand the use
and sale of Products and associated Software/Circuitware and
Documentation (a Product and one or more titles of
Software/Circuitware and the related Documentation are collectively
referred to as a "SYSTEM");
b. sell and sublicense at least twenty (20) Systems prior to the first
anniversary of this Agreement and at least twenty-five (25) Systems
per year each year thereafter;
c. maintain competent sales personnel and/or distributors to solicit
orders for the sale of the Products;
d. pay all costs associated with the promotion and sale of the Products,
including but not limited to, the cost of printing and distributing
brochures, exhibiting the Products at trade shows and conferences,
sales commissions for units sold through EIP and any other related
activity that EIP in its sole discretion may conduct; and
e. comply with all applicable laws and regulations in the Territory.
Unless EIP conforms with the above, EIP agrees that SRI may terminate this
Agreement only in accordance with the notice, cure periods and other provisions
of Article 18.b.
LIMITED WARRANTY
11. a. NOTHING IN THE AGREEMENT SHALL BE CONSTRUED AS A REPRESENTATION MADE
OR WARRANTY GIVEN BY SRI THAT THE USE OF ANY PRODUCT,
SOFTWARE/CIRCUITWARE, AND/OR DOCUMENTATION WILL NOT INFRINGE THE
PATENT OR PROPRIETARY RIGHTS OF ANY OTHER PERSON. FURTHERMORE BUT FOR
THE LIMITED WARRANTY BELOW, SRI MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT,
SOFTWARE/CIRCUITWARE, AND/OR DOCUMENTATION, INCLUDING WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
b. SRI warrants each Product sold and delivered to EIP hereunder shall be
free from defects in materials and workmanship under normal service
and use, and shall conform to the specifications set forth in the
Documentation, and shall meet or exceed the performance standards set
forth in the Documentation, in each case, for a period beginning on
the date of delivery and ending the earlier of twelve (12) months
after delivery by EIP to its customers or fourteen (14) months after
delivery by SRI to EIP.
c. If EIP gives SRI notice during the warranty period referred to in
Paragraph 11.b that any Product or part thereof is defective or
nonconforming, SRI shall repair or replace, at SRI'S sole option, such
defective or nonconforming Product or part thereof free of charge.
All transportation and other costs incurred in connection with the
return of any defective or nonconforming Product or part thereof will
be reimbursed by SRI, and the reshipment of such repaired Product or
part thereof or replacement thereof will be paid by SRI. If the
Product is not defective or nonconforming (following testing by SRI),
EIP will be responsible for all such transportation costs. Products
which have been changed or altered in any manner from their original
design in a manner not authorized by SRI or EIP, or which are
improperly or defectively installed, serviced or used are not covered
by this warranty.
d. This warranty is provided to EIP only. Third parties purchasing
Products from EIP are not entitled to present warranty claims directly
to SRI and EIP will so instruct such third parties. No warranties
made by EIP in connection with Products, Software/Circuitware and/or
Documentation shall expressly or implicitly obligate SRI in any manner
whatsoever.
LIMITATION OF LIABILITY
12. IN NO EVENT SHALL SRI OR EIP BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR
ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR WITH RESPECT TO ANY CLAIM, DEMAND, ACTION OR OTHER PROCEEDING
RELATING TO THIS AGREEMENT HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE) AND WHETHER OR NOT SRI HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SRI'S OR EIP'S LIABILITY OWING
TO THE OTHER OR ANY THIRD PARTY WITH RESPECT TO ANY CLAIM, DEMAND, ACTION OR
OTHER PROCEEDING RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY
PAID SRI UNDER THIS AGREEMENT.
TRADEMARKS
13. a. EIP has the right to attach its own trademarks, service marks and
trade names to the Products, Software/Circuitware and Documentation
and to use such marks and names in all labels, packaging, advertising
and literature related thereto.
b. This Agreement does not include any license or right in favor of EIP
to use SRI'S trademarks, service marks, or trade names in EIP's
business name or in connection with the business of EIP, except as
contained in labels, packaging, advertising or literature related to
Products, Software/Circuitware and Documentation.
INFRINGEMENT INDEMNIFICATION
14. a. Subject to Article 12, SRI shall indemnify and hold EIP, its officers,
employees and agents harmless from and against any and all liability,
loss, expense (including reasonable attorneys' fees), resulting from
any claim, demand, action or other proceeding alleging that the
Products, Software/Circuitware and/or Documentation infringe any
patent, copyright, trade secret, or other intellectual property right,
provided EIP promptly notifies SRI of any and all claims, demands and
proceedings related thereto and provides reasonable assistance and
gives SRI the opportunity to assume sole control over the defense and
all negotiations for a settlement or compromise.
b. The indemnification obligation in this paragraph 14 shall be effective
only if: (1) EIP is not substantially in default of its payment
obligations; (2) EIP has given prompt notice of the claim and
permitted SRI to defend; (3) EIP has reasonably cooperated in the
defense of the claim; and/or (4) the Products, Software/Circuitware
and/or Documentation are used in an authorized manner and such
authorized use is alleged to constitute the infringement. SRI shall
have no obligation to EIP to defend or satisfy any claims made against
EIP that arise from (i) the use of the Products, Software/Circuitware
and/or Documentation as only an element in a combination with other
products, software, circuitware or documentation not purchased or
licensed from SRI where the combination is alleged to constitute the
infringement, or (ii) the use, marketing, licensing, or disposition of
the Products, Software/Circuitware and/or Documentation by EIP other
than in an authorized manner and such unauthorized use is alleged to
constitute the infringement.
c. If such claim has occurrred or in SRI's opinion is likely to occur,
EIP agrees to accept noninfringing replacement Products,
Software/Circuitware and/or Documentation from SRI, if available, or,
if not, to return the Products, Software/Circuitware and/or
Documentation in its possession on written request from SRI. EIP will
be entitled to a full refund for the transfer prices previously paid
by EIP for all such returned Products, Software/Circuitware and
Documentation. EIP, however, will remain responsible for payment of
transfer prices for Products, Software/Circuitware and Documentation
not returned.
d. Subject to Article 12, EIP shall indemnify and hold SRI, its officers,
employees and agents harmless from and against any and all liability,
loss, expense (including reasonable attorneys' fees), or claims for
injury or damages arising out of the performance of this Agreement to
the extent such liability, loss, expense, attorneys' fees, or claims
for injury or dmages are caused by or results from the negligent or
intentional acts or omissions of EIP, its officers, agents or
employees.
CONFIDENTIALITY
15. Each party will treat as confidential and appropriately safeguard during
the term of this Agreement and thereafter until such time as the
information properly comes into the public domain, without fault of the
other party, technical information relating to the Products,
Software/Circuitware and Documentation and all other information pertaining
to the other party or any part of the other party's pricing, business or
assets which are received at any time from the other party.
TECHNICAL ASSISTANCE
16. SRI agrees to provide to three (3) EIP employees, at no charge, five (5)
days of applications training at its Menlo Park facility from a course
outline provided by EIP to SRI at least four (4) weeks in advance of the
requested training date. The course outline must be approved by SRI (which
approval will not be unreasonably withheld). SRI further agrees to supply
to EIP, at no charge, reasonable applications support until the first
anniversary of the date hereof. For special software or circuitware
modulation or simulation requirements beyond those listed on Schedule 2
hereto, for consultation with EIP's customers and for design changes
requested by EIP customers, SRI agrees to provide consulting engineering to
EIP at a rate not to exceed $125 per hour. SRI shall provide or arrange
for additional training, applications support, service and other technical
assistance with respect to Products, Software/Circuitware and Documentation
upon such reasonable terms, conditions and prices as the parties mutually
agree.
OPTION TO ACQUIRE MANUFACTURING AND TECHNOLOGY RIGHTS
17. a. SRI and EIP have discussed the possibility of SRI granting to EIP an
option to manufacture any or all Products (and/or to have any or all
Products manufactured for it). However, no such option is granted by
this Agreement, and any such future option shall be subject to mutual
agreement of SRI and EIP. All terms and conditions relating to any
such future option will be negotiated by the parties in good faith.
Upon exercise of any such future option, SRI would deliver to EIP only
that portion of the Technology (as defined below) which SRI deems
necessary to manufacture any such Product, and SRI would further
cooperate with EIP and would take such further action reasonably
requested by EIP to assist in the transfer to EIP of responsibility
for manufacturing any such Product. In exchange for such delivery and
assistance, EIP would pay to SRI a per unit transfer price (to be
mutually agreed) for each Product manufactured by or for EIP and sold
by EIP. Such transfer prices would be payable within 30 days after
each calendar quarter with respect to all such Products sold by EIP in
such calendar quarter.
b. If SRI desires to sell, license or otherwise transfer all or any
portion of the Technology (as defined below), SRI will give EIP notice
thereof. Upon receipt of such notice, SRI and EIP will negotiate in
good faith the terms of a sale, license or other transfer. If EIP and
SRI fail to reach agreement on such terms within 60 days, SRI shall
deliver to EIP its written offer of the terms upon which it is willing
to sell, license or otherwise transfer the Technology and EIP shall
have the right, exercisable within 30 days after receipt of such
written offer, to purchase, license or otherwise acquire such
Technology from SRI on the terms of such written offer. If EIP fails
to exercise such right, then SRI has the right to sell, license or
otherwise transfer such Technology to a third party, subject to the
terms of this Agreement, within 120 days thereafter on the same terms
as such written offer. If SRI fails to consummate such sale, license
or other transfer within such 120 day period, any such sale, license
or other transfer will again be subject to EIP's right of first
refusal set forth in this Article. For purposes of this Agreement,
"TECHNOLOGY" means all confidential or proprietary information,
designs, drawings, plans, schematics, reports, memoranda, blueprints,
patents, copyrights, trade secrets, know-how and other intellectual
property relating to the Products, Software/Circuitware and
Documentation.
TERMINATION
18. a. Unless terminated sooner pursuant to Article 18(b) hereof, this
Agreement will continue until the second anniversary of the date
hereof, and thereafter until terminated by either party giving to the
other at least six (6) months' notice in writing.
b. Notwithstanding Article 18(a) hereof, either party may terminate this
Agreement (i) by written notice effective immediately if the other
party makes a general assignment for the benefit of creditors or
commences any action seeking to have an order for relief entered on
its behalf as debtor or to adjudicate it insolvent, or seeking
reorganization of it or its debts under any law relating to
bankruptcy, or (ii) by written notice effective 90 days after delivery
of such notice if the other party fails to comply with any material
obligation hereunder and such failure is not cured within such 90-day
period.
c. Upon termination of this Agreement in any manner, the following
provisions will take effect:
(i) All rights granted to EIP under or pursuant to this Agreement
shall cease, and where appropriate, revert to the SRI; PROVIDED,
that EIP shall have the right to resell and sublicense in an
orderly manner all Products, Software/Circuitware and
Documentation in its possession on the effective date of such
termination.
(II) THE FOLLOWING PROVISIONS OF THIS AGREEMENT SHALL SURVIVE ANY
TERMINATION:
(A) EIP's obligation to make the payments referred to in Article
8;
(B) Any cause of action or claim of EIP or SRI, accrued or to
accrue, because of any breach or default by the other party;
and
(C) The provisions of Articles 11, 12, 14 and 15. (/INITIALED/
TWW, INA)
EXPENSES, TAXES AND OTHER CHARGES
19. All of the expenses incurred by EIP relating to the sale of the Products
and the sublicense of the Software/Circuitware and the Documentation and
the provision of related services will be borne by EIP, except as otherwise
expressly provided herein or by written instrument signed by SRI.
Notwithstanding any provision in this Agreement to the contrary, after
passage of title, EIP shall in all cases be responsible for the payment of
all shipping, handling, insurance, brokerages, taxes, customs and other
governmental charges however designated imposed in the Territory.
FORCE MAJEURE
20. Neither party shall be liable to the other party for any loss, damage,
delay or failure of performance resulting directly or indirectly from any
cause beyond its reasonable control, including force majeure, strikes, or
the laws, regulations, acts, or failure to act of any governmental
authority.
WAIVER OF BREACH
21. No waiver of breach of any of the provisions of this Agreement shall be
construed to be a waiver of any succeeding breach of the same or any other
provision.
NO AGENCY CREATED
22. The relationship of the parties under this Agreement shall be and at all
times remain one of independent contractors, and EIP is neither an employee
nor an agent of SRI. Neither party shall have any authority to assume or
create obligations on the other's behalf with respect to the Products,
Software/Circuitware or Documentation, or otherwise, and will not take any
action which has the effect of creating the appearance of its having such
authority.
ARBITRATION
23. Any controversy or claim arising out of or relating to the Agreement, or
the breach thereof, or any failure to agree where agreement of the parties
is necessary pursuant hereto, including the determination of the scope of
this agreement to arbitrate, shall be resolved by the following procedures:
a. The parties shall use all reasonable efforts to amicably resolve the
dispute through direct discussions. The senior management of each
party commits itself to respond promptly to any such dispute. Either
party may send written notice to the other party identifying the
matter in dispute and invoking the procedures of this article. Within
ten (10) days after such written notice is received, unless a delay is
agreed to by both parties or the parties agree to confer by telephone,
one or more principals of each party shall meet in San Francisco to
attempt to amicably resolve the dispute by written agreement. If said
dispute cannot be settled through direct discussions, the parties
agree to first endeavor to settle the dispute in an amicable manner by
mediation in San Francisco and administered by the American
Arbitration Association ("AAA"), 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000-0000, pursuant to the Commercial Mediation Rules of
the AAA at the time of submission prior to resorting to binding
arbitration.
If after ninety (90) days from the first written notice of dispute,
the parties fail to resolve the dispute by written agreement or
mediation, either party may submit the dispute to final and binding
arbitration administered by the AAA, pursuant to the Commercial
Arbitration Rules of the AAA at the time of submission. California
Arbitration Law shall govern except in the event a stay is sought
pursuant to the California Code of Civil Procedure Section 1281.2(c),
in which event the parties agree that the issue shall be resolved
under the United States Arbitration Act. The arbitration shall be
held in San Francisco, California before a single neutral,
independent, and impartial arbitrator (the "Arbitrator"). The
language of the arbitration shall be English, provided however that an
interpreter may be provided for any witness that desires an
interpreter; the costs of such interpretation shall be borne by the
party requesting the interpreter, subject to being awarded by the
Arbitrator as a cost of arbitration.
c. Unless the parties have agreed upon the selection of the Arbitrator
before then, the AAA shall appoint the Arbitrator as soon as
practicable, but in any event within thirty (30) days after the
submission to AAA for binding arbitration. The arbitration hearings
shall commence within forty-five (45) days after the selection of the
Arbitrator. Unless the Arbitrator otherwise directs, each party shall
be limited to one pre-hearing deposition lasting no longer than 6
hours. The parties shall exchange documents to be used at the hearing
no later than ten (10) days prior to the hearing date. Unless the
Arbitrator otherwise directs, each party shall have no longer than ten
(10) hours to present its position, the entire proceedings before the
Arbitrator shall be on no more than three (3)
hearing days within a two week period. At the close of evidence, each
side shall submit a proposed award to the Arbitrator, one of which
shall be selected by the Arbitrator. The award shall be made no more
than thirty (30) days following the close of the proceeding. Under no
circumstances should any time limit on the arbitration hearings be
applied so as to render any award subject to vacation under California
Code of Civil Procedure Section 1286.2. Accordingly, the Arbitrator
shall have authority to alter any time period believed necessary to
avoid vacatur under Section 1286.2. The Arbitrator's award shall be a
final and binding determination of the dispute and shall be fully
enforceable as an arbitration award by the California courts in
accordance with the California Arbitration Law. The prevailing party
shall be entitled to recover its reasonable attorneys' fees and
expenses, including arbitration administration fees, incurred in
connection with such proceeding. Neither party nor the Arbitrator may
disclose the existence, content, or results of any arbitration
hereunder without the prior written consent of both parties.
APPLICABLE LAW
24. This Agreement, including the decision to arbitrate and any decision by an
arbitrator pursuant to Section 23, shall be governed by and construed in
accordance with the laws of the State of California, without regard to the
conflicts of law principles thereof, and shall not be governed by the
United Nations Convention on Contracts for the International Sale of
Goods.
NOTICES
25. a. Any notice, demand, acknowledgment, or other communication permitted
or required under the terms of this Agreement or otherwise shall,
unless specifically otherwise provided in this Agreement, be in
writing and shall be given or made by facsimile transmission,
telegram, telex, or similar communication, by overnight express
delivery or by certified or registered mail addressed to the
respective party at its address in the introduction of this Agreement,
or such other address as such party will designate by notice pursuant
to this Article.
b. Any notices, demands, acknowledgments, or other communication
permitted or required under this Agreement will be deemed effective
(a) when delivered in person or by facsimile transmission, or (b) one
business day after deposited with an overnight express delivery
service or five calendar days after deposited in the mails by
certified mail, in either case, postage prepaid and properly
addressed.
U.S. EXPORT LAWS AND REGULATIONS
26. Each party hereby acknowledges that the rights and obligations of the
Agreement are subject to the laws and regulations of the United States
relating to the export of products and technical information. Without
limitation, each party shall comply with all such laws and regulations.
NO OTHER RIGHTS
27. The Agreement shall not be construed to grant any license or other rights
to EIP in any patent rights, know-how or other technology of SRI, except as
expressly provided in the Agreement.
AGREEMENT INCLUSIVE
28. This Agreement covers all contracts and agreements between the parties
relating to the subject matter hereof. In order to be binding upon SRI or
EIP, any amendment, modification supplementation, extension, renewal,
ratification, rescission, discharge, abandonment or waiver of this
Agreement, or any of the provisions hereof, must be in writing signed by
both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth.
SRI INTERNATIONAL,
a California nonprofit public benefit
corporation
By: /S/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxx
Division Vice President,
System Technology Division
EIP MICROWAVE, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
-----------------------
Name: Xxxx X. Xxxxxx
Title: Vice President Marketing
SCHEDULE 1
PRODUCTS AND TRANSFER PRICES
* * * Confidential; this information has been omitted pursuant to 17 C.F.R.
Reg. Section 240.24b-2 and filed separately with the Securities and
Exchange Commission.
SCHEDULE 2
SOFTWARE/CIRCUITWARE
* * * Confidential; this information has been omitted pursuant to 17 C.F.R.
Reg. Section 240.24b-2 and filed separately with the Securities and
Exchange Commission.
SCHEDULE 3
DOCUMENTATION
Full operating manual for the Products and Software/Circuitware in Microsoft
Word version 6.0 format.
SCHEDULE 4
SRI CUSTOMERS
SRI retains the right to sell Products and to sublicense Software/Circuitware
and Documentation to the following customers for their own internal use and not
for resale.
1. Chicago Board of Trade
2. Chicago Mercantile Exchange
3. All other financial trading institutions
4. SRI International
5. Existing classified clients with respect to existing
classified programs only
/INITIALED/ INA, 10/4/95 - TWW, 9/25/95
SCHEDULE 5
TERM AND CONDITIONS OF PRODUCT PURCHASES
1. RELEASES
If this is a blanket order, EIP shall only be liable for quantities
released referencing this blanket purchase order.
2. DELIVERY
Seller shall promptly notify EIP if it is unable to make timely delivery
and state the reasons. Such notification shall not affect EIP's
termination rights under Article 11.
3. ACCEPTANCE
Acceptance of this order shall only be to the terms and conditions stated
herein. Modifications hereof or additions hereto, to be effective, must be
made in writing and be signed by Buyer. These terms and conditions,
together with such modifications and with such data relating to price and
delivery as are accepted in writing by Buyer, constitute the entire
agreement between the parties.
4. PRICING
A. If Seller decreases prices for items furnished hereunder, the price of
all unshipped items shall be adjusted to the lower prices.
B. Applicable taxes and other charges such as duties, customs, tariffs,
imposts and government imposed surcharges shall be stated separately on
Seller's invoice.
5. SCHEDULING
A. Seller shall not deliver items earlier than five (5) business days
prior to agreed scheduled delivery dates and Buyer may return early or
excess shipments at Seller's risk and expense.
B. Upon fifteen (15) days written notice to Seller, Buyer may reschedule
any Release in whole or in part at no additional charge.
C. Buyer may place any portion of an order on hold by notice which shall
take effect immediately upon receipt. Orders placed on hold will be
rescheduled within a reasonable time.
6. PACKING AND SHIPMENT
F.O.B. point is Buyer's dock unless otherwise specified in this Agreement.
All items shall be prepared for shipment in a manner which (i) follows good
commercial practice, (ii) is acceptable to common carriers for shipment at
the lowest rate, and (iii) is adequate to insure safe arrival. Seller
shall xxxx all containers with necessary lifting, handling and shipping
information, purchase order number, date of shipment and the names of Buyer
and Seller. Buyer shall notify Seller of the method of shipment. If no
instructions are given, Seller shall select the least expensive carrier.
7. INSPECTION
A. All items shall be subject to inspection and test by the Buyer, and
where the order is issued under a Government contract to the extent
practicable at all pLaces and times, including the period of manufacture
and in any event prior to acceptance.
B. Buyer shall have the right to reject or require the correction of any
item found to be defective, which item shall be promptly replaced or
corrected by Seller.
8. WARRANTY
Seller warrants that all material ordered hereunder will conform in all
respects with the specifications, drawings, sample or other description
furnished or specified by the Buyer, and will be merchantable and free from
any defects in material and workmanship, and Seller further warrants that
all material purchased hereunder that is manufactured in accordance with
the Seller's specifications shall be fit and sufficient for the purposes
for which it was designed. Seller agrees that the foregoing warranty shall
survive acceptance of and payment for the materials, and shall save Buyer
harmless from any loss, damage or expense, whatsoever, including attorneys'
fees, that Buyer may incur as a result of any breach of such warranties.
9. INVOICING AND PAYMENT
A. Invoices shall be in duplicate and shall include purchase agreement
number, purchase order number, part number, description of items, quantity,
unit price and extended totals. Payment shall not constitute acceptance.
B. Prompt payment discounts will be computed from the latest of (i) the
scheduled delivery date, (ii) the date of actual delivery, or (iii) the
date an acceptable invoice is received. Payment is made when Buyer's check
is mailed.
10. CHANGES
Buyer may at any time, by written notice and without notice to sureties or
assignees, make changes within the general scope of this order in any one
or more of the following (i) drawings, designs or specifications, (ii)
method of shipping or packing, (iii) place of inspection, acceptance or
point of delivery, (iv) delivery schedule. Should any such change increase
or decrease the cost of, or the time required for, performance of this
order, any equitable adjustment will be requested by Seller or Buyer, in
the price, delivery schedule or both. No claim by Seller for such
adjustment will be valid unless submitted to Buyer within thirty (30) days
from date of such change. The claim should be accompanied by an estimate
of charges for redundant material, work in process, or both. Nothing
contained in this clause shall relieve Seller from proceeding without delay
in the performance of this order as changed.
11. TERMINATION FOR DEFAULT
A. Buyer may, by notice, terminate this Agreement in whole or in part if
the Seller fails to (i) deliver items on agreed delivery schedules, (ii)
replace or correct defective items under warranty, or (iii) perform any
other obligations, or if Seller becomes insolvent.
B. Seller shall continue to supply any portion of this Agreement not
terminated.
C. Upon termination of this Agreement, at Buyer's request Seller will
transfer title and deliver to Buyer (i) any completed items, and (ii) any
partially completed items and all unique materials. Prices for partially
completed items and unique materials so accepted shall be negotiated.
However, such prices shall not exceed the agreement price per item.
D. Buyer's rights and remedies herein are in addition to any other rights
and remedies provided at law or in equity.
12. TERMINATION FOR CONVENIENCE
A. Buyer may terminate this Agreement in whole or in part at any time and
for any reason upon written notice to Seller. Seller shall stop work
immediately upon receipt of said notice.
B. There shall be no charges for canceling orders for standard items.
Only Paragraphs C through E of this Article 12 shall govern Buyer's
liability for canceling orders for non-standard items.
C. Any claim for cancellation charges for non-standard items must be
submitted to Buyer in writing within thirty (30) days after receipt of
Buyer's termination notice.
D. Seller's claim may include (i) the cost of unique work in process, (ii)
the cost of paying claims to Seller's vendors for work directly allocable
to items cancelled and which cannot be diverted to other customers of
Seller's vendors. Seller shall wherever possible place such work in
process in inventory and sell it to other customers. In no event shall
such claim exceed the total price for the items cancelled. Upon payment of
Seller's claim, Buyer shall be entitled to all work and materials paid for.
E. Buyer reserves the right to inspect Seller's work in process and to
audit all relevant documents prior to paying Seller's claim.
13. INSOLVENCY, LOSS OF PROFITS, DAMAGES
The insolvency or adjudication of bankruptcy of, or the filing of a
voluntary petition in bankruptcy, or the making of an assignment for the
benefit of creditors, by either party, shall be a material breach hereof.
In no event shall Seller be entitled to anticipatory profits or to special
or consequential damages.
14. PATENTS, COPYRIGHTS, TRADE SECRETS AND TRADEMARKS
Seller shall indemnify Buyer and its cutomers against any costs, expenses
(including attorneys' fees), losses, damages or liability incurred because
of actual or alleged infringement of any patent, copyright, trade secret or
trademark arising out of the use or sale by Buyer or use by Buyer's
customers of items. Buyer shall notify Seller of such claim or demand and
shall permit Seller to participate in the defense thereof. If an
injunction issues as a result of any such claim, Seller agrees at its
expense to either: (i) procure for Buyer the right to continue using items,
(ii) replace them with non-infringing items, (iii) modify them so they
become non-infringing or (iv) at Buyer's option refund to Buyer the amount
paid. Such indemnification shall not apply where items are manufactured to
Buyer's detailed design.
15. BUYER'S PROTECTION IN CONNECTION WITH WORK DONE AT ITS PLANT
The Seller shall take such steps as may be reasonably necessary to prevent
injury or property damage during any work hereunder that may be performed
by employees or agents or subcontractors of the Seller at the Buyer's
plant, and the Seller shall indemnify and hold harmless the Buyer from and
against all loss, liability, and damages arising from or caused solely by
any act or omission of such agents, employees or subcontractors of the
Seller, and Seller shall maintain such insurance against public liability
and property damages, and such Employee's Liability and Compensation
Insurance as will protect the Buyer against the aforementioned risks and
against any claims under any Workmen's Compensation and Occupational
Disease Acts.
16. COMPLIANCE WITH LAWS
Seller shall comply with all federal, state and local laws and regulations
governing the manufacture or sale of items or the performance of services
covered by this Agreement.
17. TOOLING, CONFIDENTIAL MATTER AND PUBLICITY
A. Any specifications, drawing, schematics, technical information, data,
tools, dies, patterns, masks, gauges, test equipment and other material
furnished or paid for by Buyer shall (i) be kept confidential, (ii) remain
and/or become Buyer's property, (iii) be used by Seller exclusively for
Buyer's orders, (iv) be clearly marked as Buyer's property and segregated
when not in use, (v) be kept in good working condition at Seller's expense,
and (vi) be shipped to Buyer promptly on demand.
B. Seller shall insure Buyer's property and be liable for loss or damage
while Seller's possession or control, ordinary wear and tear excepted.
C. Neither party may use the other party's name in advertisements nor
otherwise disclose the existence of content or this Agreement without the
other's prior written consent.
18. ASSIGNMENT
Neither party may assign any rights in nor delegate any obligations under
this Agreement or any portion thereof without the written consent of the
other.
19. CONTINGENCIES
Neither party shall be responsible for its failure to perform due to causes
beyond its reasonable control such as acts of God, fire, theft, war, riot,
embargoes or acts of civil or military authorities. If delivery is to be
delayed by such contingencies, Seller shall immediately notify Buyer in
writing and Buyer may either (i) extend time of performance, or (ii)
terminate the uncompleted portion of the order at no cost to Buyer.
20. APPLICABLE LAW
This Purchase Order shall be construed in accordance with the laws of the
State of California.
