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EXHIBIT 10.1
GENERAL CO-OPERATION AND DEVELOPMENT AGREEMENT
between
ERICSSON RADIO SYSTEMS AB
and
XX.XXX
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TABLE OF CONTENTS
1 BACKGROUND.............................................................. 3
2 DEFINITIONS............................................................. 3
3 COOPERATION OBJECTIVES.................................................. 4
4 OWNERSHIP, LICENSES AND MARKET RIGHTS.................................. 4
5 MARKETING AND BRANDING.................................................. 7
6 DEVELOPMENT AND TEST OF A SOLUTION...................................... 7
7 DEVELOPMENT CONDITIONS.................................................. 7
8 INFRINGEMENTS.......................................................... 13
9 DAMAGE TO PERSON OR PROPERTY........................................... 13
10 DUTY OF NOTIFICATION................................................... 13
11 TERMINATION............................................................ 14
12 INSURANCE.............................................................. 15
13 ASSIGNMENT............................................................. 15
14 ACCESS TO INFORMATION.................................................. 16
15 USE AND CONFIDENTIALITY................................................ 16
16 TRAINING, INSTALLATION, MAINTENANCE AND SUPPORT........................ 17
17 ANNOUNCEMENTS.......................................................... 17
18 TERM................................................................... 17
19 GENERAL PROVISIONS..................................................... 18
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This General Co-operation and Development Agreement is made
between
Ericsson Radio Systems AB ("Ericsson"), registration number
556251-3258, a limited liability company duly incorporated under
the laws of Sweden and having its principal place of business at
Xxxxxxxxxxxxxx 00, XX-000 00 Xxxxxxxxx, Xxxxxx,
And
XX.XXX ("OZ"), U.S. tax identification number 00-0000000, a
corporation duly incorporated under the laws of California and
having its principal place of business at Xxxxxxxxxxx 00, XX-000
Xxxxxxxxx, Xxxxxxx.
Ericsson and OZ are hereinafter also referred to as individually
the "Party" or collectively the "Parties".
1 BACKGROUND
1.1 On February 4, 1999 OZ and Ericsson Telecom AB concluded a
General Co-operation and Development Agreement ("Old GCDA") and
at the same date the sama parties concluded a Specific
Co-operation and Development Agreement ("SPCDA ONE"). Both the
Old GCDA and SPCDA ONE referred to above were amended through
Amendment Number 1 on October 2, 1999.
1.2 On [insert date] the rights and obligations set out in SPCDA ONE
where transferred from Ericsson Telecom AB to Ericsson Radio
Systems AB.
1.3 The objective of this Agreement is to replace the Old GCDA, but
not to change the rights and obligations for either Party as set
out in SPCDA ONE.
1.4 The Parties have agreed to create a long-term strategic
partnership and to co-operate in the area of Internet based
technologies, applications and services including but not
limited to development, testing, integration, marketing, sales,
distribution, support and maintenance of solutions based on
relevant technologies and services such as publishing or
knowledge transfer from each Party. The Old GCDA set forth the
general terms and conditions for such co-operation. The Parties
intend to further strengthen their relationship by this
Agreement. Ericsson support OZ in its activities of continuing
expanding its business and securing other customers.
2 DEFINITIONS
2.1 "Agreement" shall mean this General Co-operation and Development
Agreement.
2.2 "Development Work" means any development undertaking or any
other project executed by OZ for Ericsson under any Specific
Co-operation and Development Agreement.
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2.3 "LINK" means a client-server application as set out in Appendix
1.
2.4 "OZ Application Technology" means such OZ and third-party
proprietary technology as is further defined in Appendix 1.
2.5 "Purchase Order" means a written request for Development Work.
2.6 "Solution(s)" means the products and/or services that result
from a Development Work.
2.7 iPulse means the computer software, both in client and server
version, set out in Appendix 1.
3 COOPERATION OBJECTIVES
3.1 This General Co-operation and Development Agreement sets forth
the general terms and conditions that will be applicable to the
future co-operation between the Parties in the area of Internet
based technologies and applications, unless otherwise agreed in
writing.
3.2 When the Parties agree to co-operate in the design, programming,
development, production, marketing, sales and distribution of
specific products and/or services under the general terms of
this Agreement, the specific terms and conditions therefor shall
be set out in a Specific Co-operation and Development Agreement.
3.3 A Specific Co-operation and Development Agreement and a Purchase
Order may include, but not be limited to, the following specific
terms and conditions:
a) Detailed description of the targeted Solution and
objectives
b) Each Party's contribution and responsibility
c) Project team members and contact persons
d) Time table
e) Technical specification and documentation
f) Business model
g) Fees and other compensation
h) Distribution of costs, expenses and revenues
i) Support and services
j) Marketing and advertising
k) Warranties
l) Term
m) Any other relevant provision
3.4 In case of any discrepancy between this Agreement and a Specific
Co-operation and Development Agreement the terms of the latter
shall prevail.
4 OWNERSHIP, LICENSES AND MARKET RIGHTS
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Ownership to Background IPA
4.1 Each Party will remain the owner of any know-how, patent,
copyright, design rights, right to circuit patterns in
semiconductor products, technical document and any other
industrial and intellectual property rights owned by that Party
prior to the signing of this Agreement, unless otherwise agreed.
License of OZ Application Technology
4.2 OZ will under Specific Co-operation and Development Agreements
perform Development Work for the purpose of creating Solutions.
The Solutions will or may include the OZ Application Technology,
which shall be provided to Ericsson in object code form unless
otherwise agreed. OZ hereby grants to Ericsson a fully paid-up,
perpetual, non-exclusive, world-wide license to
a) use, modify (or have modified) and make extracts from
the OZ Application Technology for the purpose of use,
maintenance, sale and other distribution of the
Solutions;
b) incorporate of merge the OZ Application Technology or
modifications thereof or extracts therefrom into any
equipment or other software for the purpose set out in
a) above;
c) sublicense the OZ Application Technology as part of
Solutions to customers;
d) make as many copies of the OZ Application Technology as
are required for exercise of the licenses granted in
this Subarticle 4.2; and
e) sublicense the above in c) and d) stated rights to
Ericsson market channels (whether in the form of agents,
distributor or similar entity) designated by Ericsson to
be a market channel for Solutions.
4.3 Right of First Refusal
During the term of this Agreement or as long as Ericsson owns
shares of OZ's preferred and/or common stock representing five
percent (5%) or more in the aggregate of the issued and
outstanding shares of OZ, whichever is longer or until OZ
completes an IPO, OZ shall give written notice to Ericsson of
all the relevant terms and conditions of any proposal to enter
into any transaction involving a sale or license (exclusive or
non-exclusive) of any OZ Application Technology in the areas of
LINK and Communities with any prime competitor of Ericsson. If
OZ gives such a notice to Ericsson, then for thirty (30) days
following receipt of the notice, Ericsson shall have the option
to enter into the proposed transaction on the terms and
conditions set forth in the notice. In the event Ericsson elects
to enter into the proposed transaction, Ericsson shall give
written notice to OZ of its decision. In the event Ericsson does
not elect to enter into the proposed transaction or fails to
give notice of its decision within the specified period,
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OZ may enter into the proposed transaction in accordance with
the terms and conditions set forth in the notice. This process
shall be repeated if OZ proposes to enter into the proposed
transaction on terms more favourable to the third party than
those first offered to Ericsson hereunder, except that the
subsequent option period(s) shall then be only fifteen (15)
days.
License to LINK
4.4 Subject to payment by Ericsson to OZ of the license fee set out
below an exclusive, non-restricted, perpetual, non-revocable,
world-wide license to test, use, modify, make extract from,
sub-license and otherwise distribute, in whatever form or media,
LINK (as defined in Appendix 1), shall be granted to Ericsson as
from the execution of this GCDA.
(a) USD 1.000.000 already paid
(b) USD 500.000 when Ericsson has received binding orders
equivalent to 100.000 end-user licensees of iPulse
4.5 OZ may also, on a case-by-case basis and on terms to be agreed
upon in separate License Agreement(s), grant to Ericsson the
rights set out in 4.2 above regarding the OZ Application
Technology for the purpose of developing (or having developed)
Ericsson branded applications and products that are not
competing with current or planned OZ products.
4.6 All rights granted to Ericsson above in Subarticles 4.2 and 4.4
are also granted any other Ericsson company (whether wholly or
majority owned or controlled by Ericsson or the parent company
of Ericsson, Telefonaktiebolaget LM Ericsson).
4.7 Ownership of results from Development Work
Subject to its obligation to make the payments set forth in
Subarticle 7.16, as soon as they appear, Ericsson shall be
entitled to the full right of ownership (and right to use) all
the results of the Development Work, and eventually the
Solutions, whatever form they have. The ownership of results
include the right to industrial and intellectual property rights
including any patent rights, copyrights, rights to photographs,
design rights, rights to circuit patterns in semiconductor
products, technical documentation and any other industrial and
intellectual property rights included therein that have been
produced by OZ (or its subcontractors) for Ericsson, or have
been acquired on Ericsson's behalf in connection with the
Development Work.
4.8 Assistance in Registration of Industrial and Intellectual
Property Rights
OZ undertakes to assist in preparing and signing such documents
as may be necessary to enable Ericsson's parent company,
Telefonaktiebolaget LM Ericsson, to be registered as holder of
patents or other industrial and intellectual property rights.
Reasonable compensation shall be paid for such assistance.
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As regards inventions and innovations that have come into
existence as part of the Development Work, OZ undertakes to
enter into such agreements with its employees - or other
personnel that OZ has hired for the Development Work - as are
necessary to allow patents or other industrial and intellectual
property rights to be assigned to Ericsson or to
Telefonaktiebolaget LM Ericsson without other compensation that
stipulated and agreed in relation to the Development Work except
for the bonus to the inventing employee according to Ericsson or
OZ patent reward program - whichever is more favourable to the
employee.
4.9 Modification and Assignment
Ericsson may not modify photographs or artistic works in such
way as to infringe the literary or artistic integrity of the
artist or photographer.
OZ undertakes to ensure that the artist or photographer waives
all rights to be mentioned as creator or photographer or be
mentioned as source, and OZ furthermore undertakes to have
entered into such agreements with its employees, or other
personnel that OZ has hired for the Development Work - as are
necessary to allow Ericsson to acquire the rights that are
mentioned in this Subarticle.
5 MARKETING AND BRANDING
5.1 Unless otherwise agreed in writing, sales of Solutions will only
be made through Ericsson sales channels.
5.2 Both the Ericsson and OZ brand identifications shall be included
in Solutions and marketing material where both Parties'
technologies are significantly included.
6 DEVELOPMENT AND TEST OF A SOLUTION
6.1 The Parties shall to the extent agreed in the Specific
Co-operation and Development Agreement actively work to design,
develop, improve and test a Solution including the integration
aspects thereof.
6.2 Each Party shall as soon as reasonably possible inform the other
Party if any of its present products or services are changed in
such a way that it may affect a Solution.
7 DEVELOPMENT CONDITIONS
The conditions specified below shall apply to any Development
Work executed by OZ for Ericsson, unless otherwise agreed in
writing in a Specific Co-operation and Development Agreement
7.1 Documentation
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Ericsson shall, to the extent agreed upon, provide OZ with the
necessary documentation, e.g. specifications. If it is agreed
that Ericsson shall provide any special resources, such as
tools, documents or other assistance, for the Development Work,
this shall be specified in the Specific Co-operation and
Development Agreement, including when such special resource is
to be provided by Ericsson.
Any special resource provided by Ericsson shall, however, be
returned on completion of the Development Work, or when the
Development Work has been terminated or cancelled.
7.2 Implementation plan
An implementation plan shall be set up and specified in the
Specific Co-operation and Development Agreement. Any alteration
to such implementation plan shall be confirmed in writing by the
Parties.
7.3 Contact persons
Each Party shall appoint contact persons with responsibility for
technical and commercial matters.
7.4 Personnel
If OZ's personnel perform any work on Ericsson's premises, such
personnel shall comply with the instructions to be observed by
Ericsson's personnel, namely instructions issued by Ericsson.
Ericsson shall contribute with personnel for the Development
Work as specified in the Specific Co-operation and Development
Agreement, including details of how such personnel are to be
used.
7.5 Subcontractors
If OZ hires subcontractors for the Development Work or part
thereof, each such subcontractor shall agree to be bound by the
relevant terms of this Agreement and OZ shall assume the same
responsibility for the work, acts or omissions of a
subcontractor as for its own.
7.6 Documentation Standards
All documentation produced for Ericsson with regard to the
Development Work, e.g., descriptions, drawings, models, tables,
photographs, videos, discs or other media, shall be prepared and
marked in accordance with Ericsson's written standards in place
and delivered to OZ prior to the execution of the Specific
Co-operation and Development Agreement to which such standards
are to be applied. If OZ has not been notified thereof, it may
apply its own standards in conformity with accepted technical
practice.
7.7 Amendments and additions to the Development Work
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Amendments or additions to the Development Work must be in
writing and duly executed by the Parties to be valid and may
result in increases in the costs of Development Work, as the
Parties may agree. OZ undertakes to propose such alterations in
the Development Work that it considers will improve the result
with respect to technical feature, costs or otherwise.
7.8 Computer security
If the Development Work is in any way connected with Ericsson's
information and data processing systems or if such systems are
used for the Development Work, OZ shall undertake to comply with
Ericsson's written security regulations, which shall be
delivered to OZ prior to execution of any Specific Co-operation
and Development Agreement under the terms of which Development
Work is anticipated to be connected with Ericsson's information
and date processing systems. OZ shall furthermore ensure that
its personnel and subcontractors comply with the said
regulations. Ericsson, its personnel and subcontractors shall
likewise undertake to comply with OZ's written security
regulations if the Development Work is in any way connected with
OZ's information and data processing systems.
7.9 Quality assurance system
OZ undertakes to commit reasonable commercial efforts to
establish and maintain a quality assurance system conforming
with the requirements set out in ISO (International Organisation
for Standardisation) 9000 and any other applicable quality
assurance system within Ericsson for the relevant Development
Work, if not otherwise agreed to in a Specific Co-operation and
development Agreement.
7.10 Deliveries
Development Work shall be performed in accordance with the
timetable specified in the Specific Co-operation and Development
Agreement. In the case the Development Work is subdivided in
specific phases according to an implementation plan, OZ shall
obtain permission to continue its work before starting on a new
phase. The Parties will endeavour to implement processes that
will permit OZ to maintain project momentum and to efficiently
utilise its development staff without undue delays pending
permission to continue its work.
7.11 Development Work reports
When the Development Work has been completed, of if approval is
to be given after a specific phase in accordance with an
implementation plan, a report of the final result of the interim
result of each phase in question shall be submitted to Ericsson
for approval.
7.12 Approval
7.12.1 Approval procedure
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Ericsson shall as soon as possible, but not later than fifteen
(15) working days following receipt of the report on the final
or interim result, as set forth in Subarticle 8.11, approve or
reject the result in writing, in which case Ericsson shall
notify OZ of any deviations from the specifications given in the
Specific Co-operation and Development Agreement which have
caused rejection.
If Ericsson has not rejected the result in a written notice to
OZ within fifteen (15) working days following receipt of the
relevant report in accordance with Subarticle 8.11, the result
shall be considered as approved.
At Ericsson's request OZ shall assist with demonstration of the
result on-site, or at Ericsson's expense (including travel
expenses), at a location other than the development location.
7.12.2 Deviations from specifications
In the event there are deviations from specifications in
accordance with Subarticle 8.12.1 above, the responsible Party
shall be obliged to undertake the necessary corrective measures
immediately and at its own risk and expense. In case the
deviation has caused rejection of reported final or interim
results, OZ shall without undue delay submit a report on the
final or interim result to Ericsson for anew evaluation and
possible approval in accordance with Subarticle 8.12.1. Minor
deviations from the specification may not be a cause for
rejection of the result.
7.13 Delays in delivery
Ericsson shall, in the event of a delay in delivery under
Ericsson's control promptly and as soon as the delay is
identified, notify OZ thereof and provide OZ with a revised
timetable including a list of any and all actions to remedy the
delay. When a delay in delivery has been caused by Ericsson,
Ericsson shall pay to OZ all actual project-related damages
caused by the delay up to a maximum amount of two (2) month's
cost of the relevant Development Work. OZ shall use its best
efforts to mitigate the project-related damages caused by the
delay.
OZ shall, in the event of a delay in delivery under OZ's
control, promptly and as soon as the delay is identified, notify
Ericsson thereof and provide Ericsson with a revised timetable
including a list of any and all actions to remedy the delay.
When a delay in delivery has been caused entirely by OZ and has
continued for eight (8) weeks, Ericsson shall be entitled,
regardless of the time-limit referred to in Article 8.23, to
cancel the Development Work, wholly or in part, in which case
the Development Work report and related documents shall be
handed over in accordance with Article 8.23 above.
7.14 Guarantees
OZ guarantees that its contribution to the Development Work will
be executed with a high degree of care and in a professional
manner. To the extent defects or shortcomings are the result of
OZ's conduct, OZ under-
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takes, at its own expense and without delay, to rectify any
defects or shortcomings in the results of the Development Work
in relation to the agreed specifications and defects or
shortcomings in documents produced upon such Development Work.
OZ's liability in this respect shall, however, only extend to
defects of which notification is given within twelve (12) months
from first customer commercial installation.
7.15 Remuneration
7.15.1 Revenues and costs from the sales and licensing of Solutions
incorporating OZ Application Technology will be shared as
defined in each Specific Co-operation and Development Agreement.
7.15.2 Instead of or in addition to the revenue sharing set out in
Subarticle 8.15.1 above, Development Work may be paid for based
on fixed prices or on a current account. The Specific
Co-operation and Development Agreement shall specify whether the
Development Work is to be executed at a fixed price or on a
current account.
7.15.3 If the Development Work is delayed due to non-provision of a
resource which Ericsson is under a contractual obligation
provide, and if this is not rectified following a written demand
to that effect by OZ, OZ shall be entitled to compensation for
extra expenses. OZ shall, however, take the necessary steps to
keep such expenses to a minimum.
7.15.4 If Ericsson is obliged by law or regulation or by order from
relevant authority to pay taxes, social security and/or other
expense in relation to an agreed or executed payment, such
payments shall be reduced by the amount of expense which
Ericsson is obliged to pay in relation thereto. OZ shall be
obliged to repay the amount of executed payments corresponding
to such reductions immediately on demand.
7.15.5 Fixed prices
Payment to OZ at a fixed price shall represent the total price,
including any fees, travelling expenses, allowances,
disbursements etc, and the fixed price shall be specified in the
Purchase Order.
7.15.6 Current accounts
When payments to OZ shall be made on a current account, the
price and costs for fees, travelling expenses, allowances and
disbursements shall be specified and agreed in advance.
Any Development Work payable on a current account shall be
limited by Ericsson in the Specific Co-operation and Development
Agreement to maximum amount ("Maximum Amount"), which must not
be exceeded without Ericsson's prior written permission. The
Maximum Amount shall include all payments to OZ in accordance
with Subarticle 8.15.7 through 8.15.9 below except addition
overtime requested by Ericsson and unexpected travel expenses.
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OZ shall be able to confirm the reported hours of its work by
means of time records and unexpected travel expenses in an
adequate manner.
7.15.7 Fees
Fees shall be specified as fixed daily or hourly fees.
OZ's fees shall include salaries and salary-related costs,
taxes, overtime, allowances and travelling expenses to the place
where the Development Work is mainly to be executed. However,
where an agreement has been concluded to that effect, overtime
compensation shall be payable for overtime work explicitly
requested by Ericsson.
7.15.8 Travelling Expenses and Allowances
For travelling to places other than the place where the
Development Work is mainly to be executed, travelling expenses
and allowances shall, if approved in writing by Ericsson, be
payable in accordance with the travelling compensation
regulations of Ericsson. Ericsson shall provide OZ with such
regulations at the commencement of the Development Work and they
shall be subject to change during the balance of the term of
this Agreement. Such changes will effective upon receipt by OZ
of notice thereof. Compensation for travelling time shall,
however, not be payable.
7.15.9 Compensation for other expenses
OZ shall receive compensation for verified disbursements agreed
to in advance.
7.16 Invoicing and payment
7.16.1 Fixed price invoices
Development Work at a fixed price shall be invoiced as agreed in
a payment plan. If no such payment plan has been agreed upon, an
invoice may be forwarded earliest on submission for approval of
the report on the final or interim result.
Invoices shall contain the following particulars:
- reference to a Specific Co-operation and Development
Agreement;
- OZ's name/company and address;
- Specification of the work performed;
- Time consumed (hours/days) and hourly or daily fee in
respect of each of OZ's personnel taking part n
Development Work.
7.16.2 Payments
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Payment shall be made not later than sixty (60) days after
receipt of each invoice. Invoicing shall be made according to
the Specific Co-operation and Development Agreement.
8 INFRINGEMENTS
8.1 OZ represents and warrants that it has all rights and licenses
necessary to grant the rights and licenses set out herein and in
any Specific Co-operation and Development Agreement and that the
use of the results developed, procured or supplied in the
Development Work for Ericsson shall not constitute an
infringement of any patents or another industrial and
intellectual property rights belonging to OZ or any third party.
8.2 OZ shall indemnify and hold Ericsson harmless with respect to
all liabilities or losses, including, without limitation,
reasonable attorneys' fees arising out of any proved claim,
lawsuit or judgement from third parties in respect of any breach
of the representation and warranty in Subarticle 9.1.
8.3 Ericsson shall indemnify, defend and hold OZ harmless with
respect to all liabilities or losses, including, without
limitation, reasonable attorneys' fees arising out of any proved
claim, lawsuit or judgement from third parties based on a claim
that the specifications provided by Ericsson (as opposed to the
manner of implementation) of any product developed under this
Agreement or any Specific Co-operation and Development Agreement
infringes the patents or any other industrial or intellectual
property right belonging to any third party.
8.4 Each Party shall notify the other Party without delay if such a
claim is made and, provided that the other Party agrees to
reimburse the notifying Party for any reasonable costs and
expenses arising as a direct result thereof, fully co-operate in
the defence of such claim. All settlements between the defending
Party and third parties concerning such claims shall be approved
by the other Party where such approval may not be reasonably
withheld.
9 DAMAGE TO PERSON OR PROPERTY
Each Party will be liable for any damage to person or property
caused to the other by wilfulness or gross negligence during the
Development Work.
If damage for which compensation is payable has occurred, the
damaged Party shall take steps to limit the damage, provided
always that such steps do not involve unreasonable expense or
are unreasonably burdensome.
10 DUTY OF NOTIFICATION
OZ shall notify Ericsson without delay and in writing if any of
the following events is likely to occur, or has already
occurred:
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- material changes in the conditions of ownership with
respect to OZ or that part of OZ's business which is
engaged in the Development Work;
- OZ's bankruptcy, suspension of payments, composition
proceedings or liquidation;
- Infringements of a third party's rights; or
- Defects or shortcomings in a specification.
This duty of notification does not entail any discharge from
liability from any other effects herein described.
11 TERMINATION
11.1 Ericsson shall be entitled to terminate this Agreement and/or
any Specific Co-operation and Development Agreement forthwith
if:
a) if any agreement is concluded under which OZ's business,
or part thereof, is transferred to a company that is in
competition with Ericsson where OZ loses its ability to
control or fulfil its obligations under this Agreement
and or any Specific Co-operation and Development
Agreement. The parties acknowledge and agree that a
provider of hosting services comparable to the mPresence
service is not considered a competitor of Ericsson for
the purpose of this subsection;
b) timely completion of the Development Work is essentially
prevented due to a circumstance referred to in
Subarticle 21.2 (Force Majeure) for a period exceeding
three (3)months; or
c) OZ becomes insolvent or a petition under any laws of or
relating to bankruptcy, insolvency, reorganisation or
relief of debtors will be filed by OZ or if OZ executed
an assignment for the benefit of creditors, or if a
receive, custodian, liquidator or trustee is appointed
for OZ, or if OZ seeks or requests any such appointment,
or if OZ takes any corporate action to authorise any of
the foregoing actions, or if any case, proceeding or
other action against OZ is commenced and not dismissed
within ninety (90) days seeking to have an order entered
against it as a debtor under any law of or relating to
bankruptcy, insolvency, reorganisation or relief of
debtors or seeking appointment of a receiver, trustee,
custodian or similar official for it or for any
substantial part of its property.
If Ericsson terminates a Specific Co-operation and Development
Agreement for the reasons stipulated in Subarticle 12.1 c)
above, OZ shall still be entitled to receive royalties and/or
profit sharing payments in proportion to the value added by OZ
to the Development Work prior to termination. The Parties agree
that such value added shall be calculated as follows: (A)
one-third of the agreed upon royalty or profit sharing
percentage, plus (B) (x) two-thirds of the agreed upon royalty
or profit sharing percentage times
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(y) a fraction, the numerator of which is the aggregate amount
of payments made or due up to and including the date of
termination and the denominator of which is the Maximum Amount
in the case of a current account Development Work or the agreed
fixed price.
11.2 OZ shall be entitled to terminate a Specific Co-operation and
Development Agreement forthwith if Ericsson develops a product
directly competing with the Solution defined under the said
agreement.
If OZ terminates a Specific Co-operation and Development
Agreement for this reason or Ericsson terminates a Specific
Co-operation and Development Agreement for any reason than
stated in 12.1 and 12.3, OZ shall, at its option, (i) be
entitled to payment of all amounts due up to and including the
date of termination, provided Ericsson receives all results of
the Development Work or (ii) retain all rights in the industrial
and intellectual property rights n connection with the
Development Work under such agreement.
11.3 Either Party shall be entitled to cancel any agreement concluded
hereunder, wholly or in part, if the other Party commits a
material breach of such agreement and neglect to remedy the same
within thirty (30) days of receipt of a written demand to that
effect (including a description of the alleged breach of
agreement).
11.4 If OZ terminates any agreement concluded hereunder for the
reason stated in Subarticle 12.3, OZ shall, at its option, (i)
be entitled to payment of all amounts due up to and including
the date of termination, provided that Ericsson receives all
results of the Development Work or (ii) retain all rights n the
industrial and intellectual property rights in connection with
the Development Work under such agreement.
11.5 If Ericsson terminates any agreement concluded hereunder for the
reason stated in Subarticle 12.3, payment shall be made of all
amounts due up to and including the date of termination and OZ
shall be obliged, immediately and without further compensation,
to report on the Development Work to which the cancellation
relates and to deliver to Ericsson all the documents prepared in
connection with the Development Work.
12 INSURANCE
OZ shall maintain sufficient insurance for any liability arising
out of the Development Work and out of acts or omissions for
which OZ is responsible hereunder. The minimum amount for such
insurance shall be ten million (10.000.000) SEK.
OZ shall upon request by Ericsson be able to present a
certificate of insurance.
13 ASSIGNMENT
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Neither Party shall be entitled without the written consent of
the other Party to assign its rights or obligations under this
Agreement, which consent shall not be unreasonably withheld.
Ericsson shall, however, be entitled to assign its rights to
another company within the Ericsson group of companies; and OZ
may assign its rights hereunder to any company with which it
merges, acquires or is acquired by, so long as such party is not
a primary competitor of Ericsson, i.e., Nokia or Motorola or
similar companies.
14 ACCESS TO INFORMATION
During the term of this Agreement, each Party will upon request
furnish the other Party with such information and material as is
reasonably necessary for the purpose of evaluating whether to
enter into or review a project or contract.
All such information and material received by a Party from the
other will be subject to the provisions concerning use and
confidentiality as set forth in Article 16 below, and will be
promptly returned if the parties do not enter into the
contemplated agreement.
15 USE AND CONFIDENTIALITY
15.1 All information and material disclosed by one Party to the other
during the term of this Agreement, including the terms and
conditions of this Agreement and all further discussions between
the Parties with respect hereto (hereinafter the "Confidential
Information"), shall be used solely for the purposes of this
Agreement and will be treated on a confidential basis, subject
to appropriate disclosure as may be required by applicable law
or judicial process.
15.2 Confidential Information received by a Party shall not be
disclosed directly or indirectly to any other person,
corporation or entity for any purpose whatsoever, nor shall it
be used or copied except for the purposes of this Agreement.
Confidential Information may, however, be disclosed to such
employees, subcontractors and professional advisors of the
receiving Party who reasonably require the information for a
purpose permitted herein and who have a secrecy obligation to
the receiving Party not less strict than set out in this Article
16.
15.3 The obligations under Subarticles 16.1 and 16.2 shall not apply
to such information that the receiving party can prove, with
substantial evidence:
(a) is now or which (through no act of failure on the part
of the receiving Party) becomes generally available to
the public;
(b) is supplied by a third party who the receiving Party in
good faith believes is free to make such disclosure
without restriction;
17
(c) is disclosed by the disclosing Party to third parties
generally without restriction on disclosure: or
(d) is independently developed by the receiving Party
without use of any confidential information from the
other Party.
15.4 The obligations of this Article 16 shall survive the expiration
or termination of this Agreement for a period of five (5) years.
16 TRAINING, INSTALLATION, MAINTENANCE AND SUPPORT
Ericsson will use its existing support channels and maintenance
procedures for first and second line support and maintenance. OZ
will establish its own third line support complying with written
Ericsson support and maintenance standards and processes.
OZ shall provide Ericsson with training as specified in each
SCDA.
17 ANNOUNCEMENTS
All announcements to news media or third parties pertaining to
this Agreement or any Specific Co-operation and Development
Agreement will be subject to review and approval of Ericsson
before any public disclosure. If either Party believes on advice
of counsel that the making of a statement, public announcement
or disclosure in Securities and Exchange Commission filings is
necessary to comply with the requirements of any law,
governmental order or regulation, it shall give the other Party
prior notice of such advice and its intention to make such
statement, public announcement or disclosure, and a text of such
statement or announcement. Notwithstanding any other provision
of this Agreement, if either party determines that any agreement
between the Parties is sufficiently material to such party as to
require inclusion as an exhibit to Securities and Exchange
Commission filings, such Party (a) shall notify the other Party
of such determination, (b) shall consult with the other Party as
to those terms and provisions deemed to be particularly
confidential or sensitive, (c) shall use all reasonable efforts
to obtain confidential treatment of these confidential or
sensitive terms and provisions and (d) may include such
agreement or agreements as an exhibit to such filings, redacting
such portions thereof as to which confidential treatment is
obtained.
18 TERM
18.1 This Agreement shall be effective from the date of its execution
until December 31, 2003. Unless terminated by either Party's
written notice, the term of the Agreement shall be extended one
(1) year at the time. Notwithstanding the aforementioned, the
terms and condition of this Agreement shall remain in force as
long as a Specific Co-operation and Development Agreement is in
force between the Parties.
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18.2 In the event of termination, the Parties shall co-operate in an
orderly fashion with a view toward protecting any proprietary or
confidential information they may have exchanged as well as to
dissolve any projects that may have to be discontinued due to
termination of this Agreement.
19 GENERAL PROVISIONS
19.1 Relationship between Parties
19.2 The relationship of the Parties is that of independent
contractors. Neither Party may act as an agent for or make a
commitment on behalf of the other.
19.3 Force Majeure
If fulfilment of either of the Parties' obligations under this
Agreement or any Specific Co-operation and Development Agreement
is prevented by unforeseen circumstances beyond their control,
such as fire, explosion, acts of God, war, embargo, intervention
of any governmental authority, major industrial disputes,
mobilisation, requisitions, currency restrictions, rebellions or
riots, shortage of motor fuel, general shortage of means of
transport commodities and energy, or defects and delays in
deliveries from a supplier due to any of the aforementioned
circumstances, this shall constitute a ground for discharge from
liability for delays in approval or delivery and for relevant
liquidated damages and other damages, provided that the Party
suffering the delay immediately notifies the other Party of such
delay.
19.4 Expenses
Each Party agrees to execute, deliver and/or file any and all
further instruments that the other Party may reasonably deem
necessary to carry out the purposes of this Agreement.
19.5 Notices
All notices between the Parties shall be in writing and given by
mail, telefax, e-mail or express courier service to the
recipient Party's address set forth below, until a Party
provides written notice of a change of such address. Notices
shall be deemed received in the ordinary course of the method of
transmittal.
Ericsson OZ
Name: Name: Xxxxxx Xxxxxxxxxx
Title: Title: General Counsel
Address: Address: Xxxxxxxxxxx 00
XX-000 Xxxxxxxxx, Xxxxxxx
Fax: Fax: x000 000 0000
19
E-mail: E-mail: xxxxxxxx@xx.xxx
19.6 Governing Law
This Agreement shall be governed by and interpreted under the
substantive laws of Sweden, excluding its rules on conflicts of
law.
19.7 Arbitration
Any dispute arising under this Agreement, which the Parties
cannot resolve through the efforts of their good officers
working together, shall be finally settled by arbitration by a
panel of three (3) arbitrators in accordance with the Rules of
Arbitration of the Stockholm Chamber of Commerce then in effect.
The place of arbitration shall be Stockholm but the Parties
agree to request the arbitrators to consider alternating
hearings between Stockholm, Sweden and Reykjavik, Iceland. The
language of the proceedings shall be English.
Any court of authority of competent jurisdiction may enforce the
resulting award.
19.8 Mutual Efforts
The Agreement has been prepared and drafted through the mutual
efforts of the Parties.
19.9 Amendments
This Agreement may be modified or amended only by a written
instrument duly signed by the Parties.
19.10 Entire Agreement
This Agreement, together with any applicable Specific
Co-operation and Development Agreement, is the complete and
exclusive agreement of the Parties regarding its subject matter,
and shall supersede any previous communications,
representations, negotiations, or agreements between the
Parties, whether oral or written.
19.11 Severability
If any provision of this Agreement is held illegal or
unenforceable by any court of competent jurisdiction, such
provision shall be deemed separable from the remaining
provisions of this Agreement and shall not affect of impair the
validity of enforceability of the remaining provisions of this
Agreement.
19.12 Language
All correspondence under this Agreement shall be given or made
in the English language unless the Parties agree otherwise.
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19.13 Non-Waiver
A waiver by either Party of any breach of any provision of this
Agreement by the other Party shall not be construed as a
continuing waiver of other breaches of the same or other
provisions hereof by such other Party.
19.14 Warranties
OZ warrants that it has sufficient right and interest to grant
the rights and licenses granted in this Agreement and in any
Specific Co-operation and Development Agreement.
19.15 General Limitation of Liability
Notwithstanding anything contained in this Agreement to the
contrary, neither Party shall be liable to the other on account
of a breach of any provision of this Agreement for any loss of
revenue, profits of business opportunity or similar
consequential or indirect damages.
19.16 Headings
The headings of the Articles are for convenience only and shall
not affect their interpretation.
The Parties have caused this Agreement to be executed in two (2)
identical originals as of the date written below
ERICSSON RADIO SYSTEMS AB XX.XXX
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx Xxxxxxxx
----------------------------- -----------------------------
Date and place Date and place
2000/11/01 Xxxxxxxxx 0000/00/00 Xxxxxxxxx
