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EXHIBIT 10.28
AGREEMENT
between
INTEL CORPORATION
and
XXXXXX COMMUNICATIONS, INC.
* Portions of this Exhibit have been
omitted (based upon a request for
confidential treatment) and have been
filed separately with the Securities and
Exchange Commission pursuant to Rule
24b-2.
DATE:
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INTEL CORPORATION PURCHASE AGREEMENT - SERVICES
Agreement #:_________________________
Effective Date:_________________________
Expiration Date:_________________________
CNDA #:_________________________
BUYER: Intel Corporation (and all Intel divisions and subsidiaries, hereinafter
"BUYER" or "INTEL").
________________________________________________________________________________
________________________________________________________________________________
SUPPLIER/CONTRACTOR: Xxxxxx Communications, Inc. (hereinafter "SUPPLIER")
________________________________________________________________________________
Terms and Conditions of Purchase
Agreement - Services
Addenda attached are shown here and [X] A Scope of Services, Prices/Rates
incorporated by this reference. [X] B Performance Standards
(Xxxx "X" where applicable.) [X] C Negotiated Changes
[X] D Protection of Buyer's Information
Assets
[X] E Alcohol and Drug-Free Workplace
Directive
[X] F Certificate of Originality;
Assignment of Intellectual
Property
[X] G Press Announcement
Buyer may purchase and Supplier shall provide the Services as described on
Addendum A at the prices provided there in accordance with the performance
standards of Addendum B and the terms and conditions of this Agreement. All
purchase orders issued to Supplier by Buyer during the term of this Agreement
shall be governed only by the terms and conditions of this Agreement
notwithstanding any preprinted terms and conditions on Supplier's acknowledgment
or Buyer's Purchase Order. Any additional or different terms in Supplier's
documents are deemed to be material alterations and notice of objection to and
rejection of them is hereby given.
INTEL CORPORATION SUPPLIER
By: /S/ Xxxxxxx XxXxxxxx By: /S/ Xxxxxx X. Xxxx
------------------------------ -------------------------------------
Signature Signature
Xxxxxxx XxXxxxxx Xxxxxx X. Xxxx
---------------------------------- -------------------------------------
Printed Name Printed Name
V.P./G.M. - New Business Investment President
---------------------------------- -------------------------------------
Title Title
August 4, 1998 July 22, 1998
-------------- -------------
Date Date
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TERMS AND CONDITIONS OF PURCHASE AGREEMENT - SERVICES
1. DEFINITIONS
A. "Service(s)" means the work to be performed as designated in Addendum A in
compliance with the Performance Standards of Addendum B.
B. "Development" means the specific design provided by Supplier incidental to
the Services.
C. "Purchase Order" is Buyer's document setting forth specific Services to be
rendered and Release information.
D. "Release" means Buyer's authorization for Supplier to provide the Services
defined in Addendum A. The Release is contained in the Purchase Order sent
to Supplier.
E. "Software" means the software or firmware provided by Supplier that is
required or normally provided for operation of the Development, in object
code form, as described and specified in Addendum A, including related
documentation, or environments, bug fixes, updates, enhancement and new
releases developed during the term of this Agreement.
2. TERM OF AGREEMENT
A. The term of this Agreement shall begin on the Effective Date and continue
through the Expiration Date.
3. PRICING AND AUDITS
A. Prices set forth on Addendum A shall remain fixed for the duration of this
Agreement except as provided herein. The parties may substitute a Revised
Addendum A at any time by each signing a dated copy which shall from such
date be the effective Addendum A.
B. The price charged Buyer for any incidental Deliverable or equivalent
Services shall always be Supplier's lowest net price charged any customer
for those Deliverable or Services regardless of any special terms,
conditions, rebates or allowances of any nature. If Supplier reduces its
prices to others for goods or services substantially equivalent to the
Deliverable and Services to be provided to Buyer hereunder, the price for
any Deliverable or Services not yet shipped, performed or invoiced shall
be adjusted to such lower prices.
C. Applicable taxes and other charges such as duties, customs, tariffs,
imposts and government imposed surcharges paid by Supplier shall be stated
separately on Supplier's invoice.
D. Additional costs, except those described on Addendum A, will not be
reimbursed without Buyer's prior written approval.
4. INVOICING AND PAYMENT
A. Prompt payment discounts will be computed from the latest of: (i) the date
of actual Service; or (ii) the date a properly filled out original invoice
is received. Payment is made when Buyer's check is mailed or EDI funds
transfer initiated. Buyer shall make payment within forty-five (45) days
of receipt of the proper original invoice.
B. Original invoices shall be submitted and shall include: Purchase Agreement
number from the Purchase Order, Purchase Order number, line Item number,
listing of and dates of Service provided, complete xxxx to address,
description of incidental Deliverable, quantities, unit price, extended
totals, and any applicable taxes or other charges. Buyer's payment shall
not constitute acceptance.
C. Supplier shall be responsible for and hold Buyer harmless for any and all
payments to its vendors or subcontractors utilized in the performance of
the Services.
D. Supplier agrees to invoice Buyer no later than one hundred eighty (180)
days after completion of Services or shipment of Deliverable. Buyer will
not be obligated to make payment against any invoices submitted after such
period.
E. Any money advanced by Buyer to Supplier for work contemplated pursuant to
this Agreement shall be used by Buyer solely for the work related to the
Deliverable and Services.
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5. TERMINATION FOR CONVENIENCE
This Agreement shall commence on the Effective Date and shall continue for
a period of three years thereafter.
This Agreement may be terminated for cause by one party for a material
breach by the other party. Should a party believe there has been a
material breach by the other party that party shall provide written notice
setting forth the breach to the other party. The other party shall have
sixty (60) days to cure the breach. If the breach is not cured by the end
of this period, the first party may provide written notice to the other
party terminating this Agreement for cause, ten (10) days after issuance
of the termination notice to the breaching party having failed to cure the
breach as set forth above.
Either party may terminate this Agreement for convenience, prior to
completion of the Demo units, upon sixty (60) days written notice to the
other party and payment of fees due at termination. However, should any of
the work product be utilized by Intel, then the licensing and royalty
provisions of Addendum C shall survive such termination.
6. 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 Services
are to be delayed by such contingencies, Supplier shall immediately notify
Buyer in writing and Buyer may either: (i) extend time of performance; or
(ii) terminate all or part of the uncompleted portion of the Purchase
Order at no cost to Buyer.
7. SCHEDULING AND RELEASES
Supplier shall promptly perform Services as scheduled or shall promptly
notify Buyer if unable to perform any scheduled Services and shall state
the reasons.
8. WARRANTY
Xxxxxx shall take all necessary steps so that the Development is designed
to comply with the safety standards established by UL at the time of
delivery of the Demo units. However, Xxxxxx shall not obtain UL approval
of the Demo units which are not intended for sale.
Xxxxxx warrants that the title to the Xxxxxx portion of the Development,
when conveyed to Intel, is good and free from any security interest or
encumbrance except as provided in Addendum C or as otherwise agreed upon
in writing, and that the Development and Demo units meet the requirements
of the PCD. The Demo units shall have no extended warranty other than to
perform per the PCD at delivery.
ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING,
EXCEPT AS TO TITLE, THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED OR ANY
AFFIRMATION OF FACT OR REPRESENTATION EXCEPT AS SET FORTH HEREIN WITH
RESPECT TO THE DEMO UNITS OR ANY PRODUCTION UNITS BASED ON THE
DEVELOPMENT. THERE IS NO WARRANTY OF MERCHANTABILITY. IN NO EVENT SHALL
XXXXXX BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
THE FOREGOING SHALL CONSTITUTE INTEL'S SOLE RIGHT AS REMEDY UNDER THIS
AGREEMENT WITH RESPECT TO THE PRODUCTS AND FUTURE PRODUCTS BASED ON THE
REFERENCE DESIGN.
If Xxxxxx is engaged to modify the Development to meet the specific
requirements of a licensee or sublicensee, and no other party modifies the
Development, then Xxxxxx shall provide such standard warranty of the
Development Design as is customary, if any is required.
9. CONFIDENTIALITY AND PUBLICITY
A. During the course of this Agreement, either party may have or may be
provided access to the other's confidential information and materials.
Additionally, Supplier may be engaged to develop new information for
Buyer, or may develop such information during the performance of Services,
which information will become, upon creation, Buyer's confidential
information unless otherwise agreed in writing. Provided information and
materials are marked in a manner reasonably intended to make the recipient
aware, or the recipient is sent written notice within thirty (30) days of
disclosure, that the information or materials are "Confidential", each
party agrees to maintain such information in accordance with the terms of
this Agreement and the CNDA referenced on the signature page
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of this Agreement and any other applicable separate nondisclosure
agreement between Buyer and Supplier. At a minimum each party agrees to
maintain such information in confidence and limit disclosure on a need to
know basis, to take all reasonable precautions to prevent unauthorized
disclosure or use, and to treat such information as it treats it's own
information of a similar nature for a period of three (3) years from the
date of disclosure. Supplier's employees who access Buyer's facilities may
be required to sign a separate access agreement prior to admittance to
Buyer's facilities. Furthermore, Supplier will furnish a copy of Addendum
D to each of its employees and subcontractors assigned to or contracted
for Buyer work and will take reasonable steps to assure Buyer that all
such have read and understood Addendum D. Supplier shall not use any of
the confidential information created for Buyer other than for Buyer.
B. Within no more than one week following the effective of this agreement,
the parties hereto shall issue a press release announcing the relationship
between Intel and Xxxxxx. The parties shall mutually agree upon the
content of such press release and of all subsequent announcements related
to this Agreement, as well as the contents and timing of each press
conference and similar function related thereto. Each such press release,
press conference or similar activity shall be subject to the consent of
each of the parties hereto. Xxxxxx intends to issue a single press release
about the existence of this Agreement as outlined in the "press release
draft" attached to this Agreement as Addendum G and Intel hereby
authorizes its release. The parties agree that neither will disclose the
existence of this Agreement, nor any of its details or the existence of
the relationship created by this Agreement, to any third party without the
specific, written consent of the other. If disclosure of this Agreement or
any of the terms hereof is required by applicable law, rule or regulation,
or is compelled by a court or governmental agency, authority or body: (i)
the parties shall use all legitimate and legal means available to minimize
the disclosure to third parties of the content of the Agreement, including
without limitation seeking a confidential treatment request or protective
order; (ii) the disclosing party shall inform the other party at least ten
(10) business days in advance of the disclosure; and (iii) the disclosing
party shall give the other party a reasonable opportunity to review and
comment upon the disclosure, and any request for confidential treatment or
a protective order pertaining thereto, prior to making such disclosure.
The parties may disclose this Agreement in confidence to their respective
legal counsel, accountants, bankers and financing sources as necessary in
connection with obtaining Services from such third parties. The
obligations stated in this section shall survive the expiration or
termination of this Agreement. Neither party may use the other party's
name or trademarks in advertisements, brochures, banners, letterhead,
business cards, reference lists or similar advertisements without the
other's written consent Xxxxxx may make such regulatory disclosures as
reasonably required concerning this Agreement and its progress.
10. HAZARDOUS MATERIALS
A. If Deliverable or any Services provided hereunder include hazardous
materials as defined by relevant local, state, and national law, Supplier
represents and warrants that Supplier and its personnel providing Services
to Buyer understand the nature of and hazards associated with the design
and/or service of Deliverable including handling, transportation, and use
of such hazardous materials, as applicable to Supplier. Prior to causing
hazardous materials to be on Buyer's property, Supplier shall obtain
written approval from Buyer's Site Environmental/Health/ Safety
organization. Supplier will indemnify Buyer from any liability resulting
from Supplier's actions in connection with: (i) providing such hazardous
materials to Buyer; and/or (ii) the use of such hazardous materials in
providing Services to Buyer.
B. Supplier will timely provide Buyer with material safety data sheets and
any other documentation reasonably necessary to enable Buyer to comply
with applicable laws and regulations.
C. Supplier hereby certifies that Deliverable supplied to Buyer do not
contain and are not manufactured with any ozone depleting substances, as
those terms are defined by law.
11. INSURANCE
A. Without limiting or qualifying Supplier's liabilities, obligations or
indemnities otherwise assumed by Supplier pursuant to this Agreement,
Supplier shall maintain, at its sole cost and expense, with companies
acceptable to Buyer, Commercial General Liability and Automobile Liability
Insurance with limits of liability not less than $1,000,000 per occurrence
and including liability coverage for bodily injury or property damage (1)
assumed in a contract or agreement pertaining to Supplier's business and
(2) arising out of Supplier's product, Services or work. Supplier's
insurance shall be primary, and any applicable insurance maintained by
Buyer shall be excess and non-contributing. The above coverages shall name
Buyer as additional insured.
B. Supplier shall also maintain statutory Workers' Compensation coverage,
including a Broad Form All States Endorsement in the amount required by
law, and Employers' Liability Insurance in the amount of $1,000,000 per
occurrence. Such insurance shall include an insurer's waiver of
subrogation in favor of Buyer.
C. Supplier shall provide Buyer with properly executed Certificate(s) of
Insurance prior to commencement of performance of this Agreement and shall
notify Buyer, no less than thirty (30) days in advance, of any reduction
or cancellation of the above coverages.
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12. COMPLIANCE WITH LAWS AND RULES
A. Supplier shall comply with all national, state and local laws and
regulations governing the manufacture, transportation, and/or sale of
Deliverable and/or the performance of Services in the course of this
Agreement. In the United States, these may include, but are not limited
to, Department of Commerce, Environmental Protection Agency and Department
of Transportation regulations applicable to hazardous materials and all
employment and labor laws governing Supplier's personnel providing
Services to Buyer.
B. Supplier agrees to abide by all Buyer's rules and regulations while on
Buyer's premises or performing Services including, but not limited to,
safety, health and hazardous material management rules, and rules
prohibiting misconduct on Buyer's premises such as use of physical
aggression against persons or property, harassment and theft. Supplier
will perform only those Services identified on Addendum A and will work
only in areas designated for such Services.
C. Supplier represents and agrees that it is in compliance with Executive
Order 11246 and implementing Equal Employment Opportunity regulations and
the Immigration Act of 1987, unless exempted or inapplicable.
13. INDEMNIFICATION
Xxxxxx shall save Intel, its agents and customers, harmless from all
costs, loss, damage and liability, except consequential damages, which may
be incurred on account of the infringement of any United States patent,
copyright, or misappropriation of a trade secret arising out of the sale
or use of products procured under this Agreement by Intel to the extent of
the Xxxxxx portion of the Development and subject to Intel providing the
licenses specified in Addendum A, and Xxxxxx shall, at its own expense,
defend all claims, suits or actions of infringement of patents, against
Intel, Intel's agents or customers, provided Xxxxxx is promptly notified
of such claims, suits and actions, given all evidence in Intel's
possession, reasonable assistance in defense of the claim, at Xxxxxx'
expense, sole control of the defense thereof and all negotiations for its
settlement or compromise. In the event of such a charge of infringement,
Xxxxxx' obligation under this Agreement shall be fulfilled if Xxxxxx:
A. Obtains a license for Intel, Intel's agents or its customers
to continue to use or sell the infringing product; or,
B. Refunds the purchase price paid to Xxxxxx by Intel for the
development hereof; or,
C. Replaces or modifies the infringing portion of the Development
Design so as to be substantially equal but non-infringing.
Xxxxxx shall not have any liability to Intel under any
provision of this Section if the patent infringement is based
upon the use of the Development Design in a manner for which
the Reference Design was not designed. The above states the
entire liability of Xxxxxx with respect to infringement of
patents.
14. INDEPENDENT CONTRACTOR
In performing Services under this Agreement, Supplier is an independent
contractor and its personnel and other representatives shall not act as
nor be agents or employees of Buyer. As an independent contractor,
Supplier will be solely responsible for determining the means and methods
for performing the required Services. Supplier shall have complete charge
and responsibility for personnel employed by Supplier; however, Buyer
reserves the right to instruct Supplier to remove from Buyer's premises
immediately any of Supplier's personnel who is in breach of Section 12 of
this Agreement. Such removal shall not relieve Supplier's obligation to
provide Services under this Agreement.
15. NEW DEVELOPMENTS
It is understood and agreed between the parties that the Development may
utilize certain proprietary core technology of Xxxxxx ("Xxxxxx
Technology") some of which is subject to pending patent applications.
Xxxxxx reserves the ownership and right to use the Xxxxxx Technology for
its own products and for products developed for other Xxxxxx customers.
Nothing herein shall impair such rights, title or interest of Xxxxxx to
the Xxxxxx Technology.
Xxxxxx acknowledges that all right, title and interest in and to the
Development, upon completion of development and subject to the payments
outlined herein, shall be the sole property of Intel, subject to Addendum
X. Xxxxxx agrees to assign to Intel the Development Design and take other
steps necessary or proper to assist Intel in perfecting its ownership in
the Development Design including obtaining patent or other protection. Use
of Xxxxxx technology shall require a license from Xxxxxx as described in
Addendum X.
Xxxxxx shall have the nonexclusive right to use the Development Design for
its own products, to develop and manufacture products using the
Development for others, or to market the Development Design to its
customers in accordance with terms specified by Intel from time to time,
but no less favorable than other comparable
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Development/Reference Design licensees of Intel or any other agents,
distributors, master licensees or marketers of the Development.
Notwithstanding, no license is granted by this Agreement to Xxxxxx for any
Intel intellectual property rights other than the rights in the
intellectual property rights which arise from the work performed by Xxxxxx
under this Agreement in the Development Design.
Xxxxxx is in the business of developing products and software for OEM
customers and nothing in this agreement shall preclude Xxxxxx from
developing digital recorders and other products for present or future
customers. However, in consideration of the payments outlined herein,
Xxxxxx agrees it will not develop a portable recorder for any other
customer featuring a combination of *************************************
for a period of three (3) years from the date hereof, without either (a)
the written permission of Intel or (b) having such customer license the
Development, in whole or in part.
16. MERGER, MODIFICATION, WAIVER, AND REMEDIES
A. This Agreement contains the entire understanding between Buyer and
Supplier with respect to the subject matter hereof and merges and
supersedes all prior and contemporaneous agreements, dealings and
negotiations. No modification, alteration or amendment shall be effective
unless made in writing, dated and signed by duly authorized
representatives of both parties.
B. No waiver of any breach hereof shall be held to be a waiver of any other
or subsequent breach.
C. Buyer's rights and remedies stated in this Agreement are in addition to
any other rights and remedies provided by law or in equity.
D. If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such determination
shall not affect the validity of the remaining provisions unless Buyer
determines in its discretion that the court's determination causes this
Agreement to fail in any of its essential purposes.
17. ASSIGNMENT
This Agreement is for personal Services and neither party may assign or
factor any rights in nor delegate any obligations under this Agreement or
any portion thereof without the written consent of the other provided,
however, an assignment by one party to a wholly or majority owned
subsidiary or to a successor company of that party shall be authorized.
The parties agree Buyer may cancel this Agreement for cause should
Supplier attempt to make an unauthorized assignment of any right or
obligation arising hereunder.
18. HEADINGS
The headings provided in this Agreement are for convenience only and shall
not be used in interpreting or construing this Agreement.
19. APPLICABLE LAW
This Agreement is to be construed and interpreted according to the laws of
the State where Services are provided.
20. SPECIFIC PERFORMANCE
Notwithstanding anything else contained in this Agreement, Buyer and
Supplier specifically agree that failure to perform certain obligations
undertaken in connection with this Agreement would cause irreparable
damage, and that monetary damages would not provide an adequate remedy in
such event. The parties further agree that Supplier's failure to complete
performance of the Services called for in this Agreement or on any project
Released under this Agreement or to deliver or effect delivery of Services
and/or materials as contracted are such certain obligations. Accordingly,
it is agreed that, in addition to any other remedy to which the
non-breaching party may be entitled, at law or in equity, the
non-breaching party shall be entitled to an order of specific performance
to compel performance of such obligations in any action instituted in any
court of the United States or any state thereof having subject matter
jurisdiction.
* This portion of the Exhibit has been omitted (based upon a
request for confidential treatment) and filed separately with
the Securities and Exchange Commission pursuant to Rule 24b-2.
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ADDENDUM A
SCOPE OF SERVICES, PRICES/RATES
Description of Services:
Xxxxxx shall perform so as to design, develop and assemble the ***********
*************************************************************************
****************************************
Intel will be responsible for and will obtain ****************************
************************************************** other required
technology provider ******************************************************
Intel shall also assist in expediting the delivery of developer software
and materials and hardware associated with such licenses as they apply to
the Development Design.
Intel shall be responsible for developing and providing the***************
that is required by the Demo units. Timely delivery to Xxxxxx of the
************************** is required to meet the schedule and properly
implement the development of the Demo units.
List of Deliverable to be furnished:
100 Demo Units
Prices for Services:
Payment for the work performed by Xxxxxx shall consist of Non-Recurring
Engineering ("NRE") fees as described below:
a. Thirty percent (30%) of the NRE for development of the
***************************************************** shall be paid
upon execution of this agreement. The balance of the NRE shall be
made in milestone payments as follows:
o Twenty percent (20%) upon************************ as follows:
- ***********************************************************
****************************
- ***********************************************************
***********************************************************
- ***********************************************************
o Twenty percent (20%) upon ************************************
**************************************************************
- **********************************************************
- ***********************************************************
- ***********************************************************
- ***********************************************************
o Twenty percent (20%) upon delivery of the first *************
*************** units.
o Ten percent (10%) upon delivery of the balance of ************
************* units.
Additional ******************** units can be purchased at a unit price of ******
* This portion of the Exhibit has been omitted
(based upon a request for confidential treatment)
and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2.
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ADDENDUM B
PERFORMANCE STANDARDS
MEASUREMENTS:
Xxxxxx' timely completion of the project is subject to and will require
********************************************** development milestones, (b)
timely completion of related ***************************************************
***************************************************************
SCHEDULE OF ENGINEERING MILESTONES
o *********************************************************
- ***********************************************************
***************************
- ***********************************************************
***************************
- ***********************************************************
Approximate due date for the above: ********************************************
o ***********************************************************
***************************************************
- ***********************************************************
- ***********************************************************
- ***********************************************************
- ***********************************************************
Approximate due date for the above: ********************************************
o Delivery of the first ****************************** units.
Approximate due date for the above: ********************************************
o Delivery of the balance of ********************* units.
Due Date is contingent on acceptance of the first 10 units.
* This portion of the Exhibit has been omitted
(based upon a request for confidential treatment)
and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2.
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ADDENDUM C
NEGOTIATED CHANGES
"Supplier Intellectual Property Rights" means all patents, copyrights, mask work
rights, trade secret rights and other intellectual property rights and
applications therefor in any country of the world, related to the Development,
which are owned by or licensed to Supplier during the term of this Agreement.
***********************************************************, the Supplier
Intellectual Property Rights ********* which will represent a prepaid royalty on
************************ of production and thereafter, a royalty fee of
******************************** shall be due to Supplier. Such license shall
include the right to ***********************************************************
**************************************************
* This portion of the Exhibit has been omitted
(based upon a request for confidential treatment)
and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2.
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ADDENDUM D
PROTECTION OF INTEL'S INFORMATION ASSETS
Supplier agrees to safeguard Intel's classified (i.e., Intel Confidential, Intel
Secret, Intel Restricted Secret and Intel Top Secret) and proprietary
information set out in the body of the parties' Agreement and relevant
Unescorted Access Application forms for badges. Supplier also agrees to use and
apply Intel's information protection methods stated below in this Addendum in
the performance of Supplier's work. Supplier agrees that this performance
standard applies to all Intel classified and proprietary information, regardless
of the medium (Intel's or Supplier's) in or on which it is retained or
communicated and to software that is licensed by Intel for its internal use.
Supplier is not automatically granted access to Intel classified and proprietary
information, networks or software. However, authorization to use or access Intel
information, software or telecommunications may be granted by the Intel
information owner if access is necessary and directly related to Supplier's
scope of work or duties. Unless specifically authorized, Supplier may not use or
access Intel classified or proprietary information that may be happened upon or
inadvertently discovered while performing work under this Agreement. Neither may
a Supplier or Supplier's employee control an Intranet web site at Intel.
Supplier shall not modify Intel classified or proprietary information, software,
hardware, or telecommunications without the explicit permission of the Intel
employee responsible for the resource, with the exception of contract-related
requirements or resources that allow for individual customization (e.g.,
Microsoft Windows user features). The Supplier's employees, agents, or
subcontractors may not disclose Intel classified or proprietary information to
their co-workers, except for disclosure to those similarly bound to protect
Intel's intellectual property with a need to know to fulfill this Agreement.
INTEL INFORMATION PROTECTION METHODS
This section outlines the Intel's minimum requirements for protection methods
for all Intel classified or proprietary information and software that the
Supplier's personnel may come in contact with. Intel recognizes that the correct
and proper protection of its information rests with its employees and Suppliers
who have been authorized access. FAILURE TO COMPLY WITH THESE REQUIREMENTS WILL
PROVIDE GROUNDS FOR IMMEDIATE TERMINATION OF THIS AGREEMENT BY INTEL. Periodic
updates to these protection methods can be found on Intel's internal web at:
URL XXXX://XXX-XXXXXXX.XX.XXXXX.XXX/XXXXXXXX/
Upon reaching the above web site, refer to Policies for Employees and Procedures
for Employees. These protection methods may also be obtained through your
purchasing representative.
For further information or questions, contact your Intel management sponsor.
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ADDENDUM "E"
ALCOHOL AND DRUG-FREE WORKPLACE DIRECTIVE
Intel is committed to fulfilling its legal and ethical responsibility to
maintain a safe and efficient working environment on Intel premises. Supplier's
drug and alcohol program shall be at least as stringent as Intel's. This means
that at a minimum: (i) all Supplier's employees ("Employees") assigned to Intel
premises shall pass a screen test (urine analysis) for drugs and alcohol within
seventy-two (72) hours of assignment at Intel; and (ii) Supplier shall perform
immediate drug and alcohol testing of any Employee so assigned if Supplier
("Employer") has a reasonable suspicion of drug or alcohol impairment.
"Reasonable suspicion" is present when an observation of a change in an
Employee's behavior or conduct indicates a noticeable performance impairment to
the observer.
When Intel has a reasonable suspicion that an Employee is under the influence of
alcohol or drugs in violation of Intel's standards, Intel may require Supplier
to perform drug and/or alcohol testing of its Employee or remove the Employee
from Intel premises.
If, after seventy-two (72) hours subsequent to assignment to Intel premises and
after a favorable test result has been received, an Employee voluntarily
requests professional counseling and rehabilitation before job performance is
affected or continued assignment to Intel is at risk, Intel will allow continued
access to its premises by such Employee only for so long as he/she abides by the
rehabilitation program of his/her Employer.
However, if an Employee fails to advise his/her Employer of a drug or alcohol
dependency and fails to seek his/her Employer's approval of a professional
counseling and rehabilitation program and Intel requested testing shows that the
tested Employee is under the influence of alcohol or illegal drugs, that
Employee will be denied access to Intel premises and Intel will require return
of that Employee's security badge immediately. In addition, a corporate-wide
"no-access" notation will be placed in the Intel corporate security database and
no Application for Waiver will be considered by Intel.
Also, Intel may, at its option, exercise its right to audit Supplier's personnel
records related to compliance with Intel's Drug and Alcohol standard to ensure
that federally certified laboratories are being used and appropriate procedures
are adhered to.
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ADDENDUM F
CERTIFICATE OF ORIGINALITY
This Certificate of Originality must be completed by Supplier when furnishing
software material (program product or offering and related documentation, or
other software material) for Intel.
One Certificate of Originality can cover one complete product, even if that
product includes multiple modules. However, a separate Certificate of
Originality must be completed for the code and another for its related
documentation (if any.)
Please leave no questions blank. Write "not applicable" or "N/A" if a question
is not relevant to the furnished software material.
1. Name of the software material (provide complete identification, including
version, release and modification numbers for programs and documentation):
***************************************************
2. Was the software material or any portion thereof written by any party
other than you, or your employees working within their job assignment?
Yes [ ] No [X]
If Yes, provide the following information:
(a) Indicate if the whole software material or only a portion
thereof was written by such party, and identify such portion:
________________________________________________________________________________
________________________________________________________________________________
(b) Specify for each involved party:
(i) Name:
________________________________________________________
(ii) Company:
________________________________________________________
* This portion of the Exhibit has been omitted
(based upon a request for confidential treatment)
and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2.
12
14
(iii) Address:
________________________________________________________
(iv) If the party is a company, how did it acquire title
to the software material (e.g., software material
was written by company's employees as part of their
job assignment)?
________________________________________________________
(v) If the party is an individual, did s/he create the
software material while employed by or under
contractual relationship with another party?
Yes [ ] No [ ]
If Yes, provide name and address of the other party
and explain the nature of the obligations:
________________________________________________________
________________________________________________________
(c) How did you acquire xxxxxx to the software material
written by the other party?
________________________________________________________
3. Was the software material or any portion thereof derived from any third
party's pre-existing material(s)?
Yes [ ] No [X]
If Yes, provide the following information for each of the
pre-existing materials:
(a) Name of the materials:
______________________________________________________________
(b) Owner:
______________________________________________________________
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15
(c) How did you get the right to use the pre-existing
material(s)?
______________________________________________________________
4. Identify below, or in an attachment, any other circumstances which might
affect Intel's ability to reproduce and market this software product,
including:
(a) Confidentiality or trade secrecy of pre-existing
materials:
Xxxxxx File System
(b) Known or possible royalty obligations to others:
______________________________________________________________
(c) Pre-existing material developed for another party or
customer (including government) where you may not have
retained full rights to the material:
______________________________________________________________
(d) Materials acquired from a person or company possibly not
having title to them:
______________________________________________________________
(e) Other circumstances:
______________________________________________________________
______________________________________________________________
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ASSIGNMENT OF INTELLECTUAL PROPERTY
In consideration of the disclosure of Intellectual Property and Confidential
Information of Intel and the compensation paid by Intel to _________________
("Assignor") under the Intel Corporation Purchase Agreement Services No._____,
effective ___________ ("Agreement") the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
********************************************************************
********************************************************************
********************************************************************
In this Agreement, "Work" means all works, including literary works, pictorial,
graphic and sculptural works, architectural works, works of visual art, mask
works, and any other work that may be the subject matter of copyright
protection; advertising and marketing concepts; information; data; formulas;
designs; models; drawings; computer programs; including all documentation,
related listings, design specifications, and flowcharts, trade secrets, and any
inventions including all processes, machines, manufactures and compositions of
matter, and any other invention that may be the subject of patent protection;
and all statutory protection obtained or obtainable thereon including those in
foreign countries.
*******************************************************************************
*******************************************************************************
***************************************************
*******************************************************************************
*******************************************************************************
***************************************************
*******************************************************************************
*******************************************************************************
***************************************************
*******************************************************************************
*******************************************************************************
***************************************************
ASSIGNOR
Signature:________________________________
Printed Name:_____________________________
Date:_____________________________________
* This portion of the Exhibit has been omitted
(based upon a request for confidential treatment)
and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2.
15
17
ADDENDUM G
DRAFT
FOR IMMEDIATE RELEASE
CONTACT: Xxxxxx Xxxxxx
000-000-0000
XXXXXX COMMUNICATIONS SIGNS DEVELOPMENT AGREEMENT TO
DEVELOP A DIGITAL VOICE RECORDER
(SAN DIEGO, CA - August 10, 1998) - Xxxxxx Communications, Inc. (OTC: NCII)
today announced that it has signed an agreement to design and develop a digital
voice recorder for Intel Corporation. Under the terms of the agreement, Intel
will provide one-time development funding for the design. Terms and conditions
for use of Xxxxxx' technology in a production product, or in derivatives of the
current development effort, have been established with Intel in the current
agreement. The Intel development payments to Xxxxxx do not represent any form of
equity investment.
Xxxx Xxxx, President and CEO stated "Xxxxxx pioneered the use of removable Intel
flash memory for portable digital voice recording. We were also the first in the
industry to interface portable digital recordings to the computer, providing
high speed downloading. Intel's decision to contract with Xxxxxx reflects our
position as a leader in the world of hand held digital recorder technology."
Xxxxxx Communications Inc. is a San Diego-based company specializing in
computer-compatible OEM products utilizing its proprietary MicroOS flash memory
management system. Xxxxxx is an innovator in utilizing flash memory for digital
voice, audio, image, video and data recording, storage, computer interface and
playback. Xxxxxx licenses its technology for use in OEM products and also offers
custom OEM development and manufacturing.
# # #
Safe Harbor statement under the Private Securities Litigation Reform Act of
1995: This press release contains forward-looking statements relating to
technology and product development that may impact on future results and the
future viability of the company. Actual results could differ materially from
those projected in the forward-looking statements as a result of risk factors
such as future products and results, technological shifts, potential technical
difficulties that could delay new products, competition, pricing pressures and
the uncertainty of market acceptance of new products by distributors and
end-user customers.
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