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Exhibit 10.4
CONFIDENTIAL TREATMENT REQUESTED
DEVELOPMENT AND PRODUCT SUPPLY AGREEMENT
THIS DEVELOPMENT AND PRODUCT SUPPLY AGREEMENT ("Agreement") is made as of
July 19, 2000 (the "Effective Date") by and between S3 Incorporated, a Delaware
corporation having offices at 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 ("S3"), and Intellon Corporation, a Florida corporation having
offices at 0000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000
("Intellon").
RECITALS
A. S3 and Intellon desire to enter into a collaborative technical
and commercial relationship pursuant to which Intellon will
develop and manufacture powerline networking chipsets which
may be used with S3's products; and
B. In furtherance of this effort, S3 will purchase from Intellon
certain Chipsets as more particularly set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Definitions and Interpretation. As used in this Agreement, the
following terms shall have the following meanings:
1.1 "Chipsets" means the INT5130 powerline networking chipset developed
under this Agreement that includes the INT5130 MII Integrated Powerline MAC/PHY
Transceiver IC, INT1000 Integrated Analog Conversion (ADC/DAC) IC, and which
complies with the HomePlug V1.0 specification.
1.2 "Development" means any development work undertaken according to
the Development Plan and in accordance with this Agreement.
1.3 "Development Plan" means a mutually agreed writing setting forth,
among other things: (i) the Specifications for the Chipset, and (ii) project
timelines for the Development effort. Once mutually agreed and reduced to
writing, a Development Plan may be modified only by the parties' written, mutual
agreement. A copy of the Development Plan is attached hereto as Exhibit A.
1.4 "First Production Date" means the date on which any such Product is
made available commercially to any third party (not including samples provided
for pre-market testing).
1.5 "HPA" means the HomePlug Powerline Alliance, a not for profit
organization incorporated in California.
1.6 "Home Plug 1.X Specification" means the specification adopted by
the HPA for the purpose of offering home powerline products. Copies of the Home
Plug 1.X Specifications are available from HomePlug.
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Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
406.
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CONFIDENTIAL TREATMENT REQUESTED
1.7 "Intellectual Property" shall mean any and all confidential or
proprietary technologies, procedures, processes, designs, inventions,
discoveries, know-how, methods, show-how, works of authorship and other
information and materials, including without limitation, documentation, and all
patents and patent applications, copyrights, trade secrets, mask work rights and
other proprietary rights therein or relating thereto.
1.8 "Intellon Technology" means the Intellectual Property owned or
licensed by, or conceived, developed or invented by or for Intellon, including
without limitation Intellectual Property developed by Intellon pursuant to this
Agreement.
1.9 "Product" means production version of the Chipset and meeting the
Specifications developed by the parties.
1.10 "Purchase Order" or "P.O." shall mean an offer from S3 received by
Intellon, whether in written or other form, or in electronic form, to purchase
or schedule delivery of a specified amount of Products that complies with the
requirements set forth in this Agreement.
1.11 "S3 Technology" means any and all Intellectual Property owned or
licensed by, or conceived, developed or invented, by or for S3, other than
Intellon Technology, including, without limitation, those items listed on
Exhibit A.
1.12 "S3 Xxxx" means a trademark, tradename, service name, service xxxx
or logo of S3.
1.13 "S3 Products" means any product, process or Intellectual Property
that carries an S3 Xxxx.
1.14 "Specifications" means the mutually agreed upon manufacturing,
performance and functional requirements for the Chipset as more fully specified
in the Development Plan, which may be modified from time to time by the mutual
consent of both parties, and which shall be modified at the completion of the
Development to more specifically describe the then current Chipset that is
approved by S3. The Specifications shall be defined in terms of (i) the
Chipset's manufacturing and performance specifications and (ii) such other
criteria or specifics as may be agreed upon in the Development Plan.
2. Development.
2.1 Intellon will develop the Chipset, test boards, device drivers,
evaluation test software, and other mutually agreed upon items. The Chipset will
comply with the HomePlug V1.0 specification.
2.2 Intellon will develop a Chipset meeting the Specifications in
accordance with the Development Plan set forth on Exhibit A attached hereto.
2.3 Intellon shall be responsible for the development, testing and
manufacture of the Chipsets, including all costs and expenses related thereto.
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Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
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CONFIDENTIAL TREATMENT REQUESTED
2.4 S3 will provide S3 Technology and assistance with the Development,
at S3's sole discretion, and conditioned on the parties entering into an
appropriate licensing and non-disclosure agreement.
2.5 Intellon will provide S3 with updated system and data sheets,
reference schematics and engineering samples (ES5130 chipset) at or before
agreed upon development milestones,********** and in any event, promptly upon
S3's request, to the extent it is available.
2.6 Intellon will provide S3 with information relating to the
development of the Specifications and/or Chipset from time to time during the
Development, **********and in any event, promptly upon S3's request to the
extent available.
2.7 Each month Intellon will deliver to S3 progress reports (orally,
followed up promptly with a written summary) describing actual project status
with respect to the Development to be performed under this Agreement, including
progress on the project plan, test results from simulations or physical devices,
and significant achievements or risks. These reports will be initiated from the
first month of the Development and will continue until the completion of the
Development
2.8 Intellon shall maintain records, in sufficient detail and in good
scientific manner appropriate for patent purposes, which shall be complete and
accurate and shall fully and properly reflect all work done and results achieved
in the performance of the Development (including all data in the form required
under all applicable laws and regulations). Such records shall include books,
records, reports, notes, charts, graphs, comments, computations, analyses,
recordings, photographs, computer programs and documentation thereof, computer
information storage means, and other graphic or written data generated in
connection with the Development including any data required to be maintained
pursuant to all requirements of applicable laws and regulations.
2.9 Intellon agrees to maintain all its facilities and equipment in
good working condition and in compliance with any or all regulatory
requirements.
2.10 Intellon agrees to comply with all applicable laws in its
performance of this Agreement.
3. Test/Acceptance.
3.1 Intellon will provide S3 with a number of samples of the Chipset as
reasonably needed by S3 (or its contractors) for Development purposes at the
Prices set forth in Exhibit B.
3.2 Upon receipt of the samples, S3 shall evaluate and test whether the
Product conforms to the Specification pursuant to the Development Plan.
3.3 If, as a result of any of the tests performed pursuant to Section
3.2, any part of the Product fails to conform to its Specification, Intellon
shall modify the Product or provide an
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Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
406.
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CONFIDENTIAL TREATMENT REQUESTED
alternative remedy to ensure compliance so that it meets its Specifications
within a reasonable amount of time not to exceed two months after receiving
notice from S3 of such failure.
4. S3 Obligations. S3 will designate S3 employees to develop an S3
product (or product family) using the Chipset.
5. **********
6. License Royalties.
6.1 At S3's discretion, S3 may license Intellon's patent claims that
are necessary to implement chipsets complying with the HomePlug 1.X
Specifications **********. In addition, S3 may license Intellon's Technology
embodied in the Chipset that is licensable at no additional cost to Intellon for
a specific field of use **********. Nothing in this Agreement will limit S3 from
developing, licensing or manufacturing its own chipsets.
7. Product Purchases.
7.1 General. During the term of this Agreement, Intellon agrees to
supply and S3 agrees to purchase minimum quantities of the Product under the
terms and conditions of this Agreement. Notwithstanding anything in this
Agreement to the contrary, there shall be no limitations, whatsoever, on S3's
use of Products purchased from Intellon. All Purchase Orders are subject to
Intellon's acceptance, however, so long as such Purchase Orders are in
compliance with this Agreement, Intellon agrees to accept the Purchase Order.
The purchase and supply of Products between Intellon and S3 shall be governed
solely and exclusively by this Agreement, which shall supersede the terms and
conditions contained in any Purchase Order, acknowledgment or other document
related to the purchase and supply of Products, all of which terms and
conditions are hereby expressly waived. This Agreement shall not be modified,
supplemented or interpreted by any trade usage or prior course of dealing not
made a part of this Agreement by its express terms.
7.2 **********. Intellon agrees to provide S3 with ********** Product
quantities during the term of this Agreement **********.
7.3 Minimum Quantity. S3 hereby will order ********** of Product under
this Agreement to be delivered during the first 24 months from the First
Production Date. A **********units of Product ********** will be scheduled for
delivery during the **********after the First Production Date. S3's purchase
obligations for the Minimum Quantity are as follows: (a) The **********of the
units or Product ordered by S3 during the **********after the First Production
Date will be non-cancelable; and (b) the **********of Product ordered by S3
during the ********** after the First Production Date may be canceled, subject
to a cancellation fee equal ********** the purchase price, upon written notice
to Intellon at least **********. Unless otherwise specified, unit orders beyond
the Minimum Quantity will be cancelable without penalty, if written notice is
provided to Intellon at least **********
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Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
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CONFIDENTIAL TREATMENT REQUESTED
7.4 Alternate Supplier: If Intellon misses delivery of ********** as
defined in Exhibit A by at least **********, S3 can apply all HomePlug chipset
purchased from Alternate Suppliers from that date until *********** after
Intellon's **********of Qualified Production Chipsets, **********, against the
********** in Section 7.3.
7.5 Forecasts. Commencing six (6) months prior to the First Production
Date, and thereafter on a monthly basis on or before the 15th day of each month,
S3 (or S3's third party manufacturer) will submit to Intellon a Purchase Order
covering the next three (3) calendar months and a non-binding rolling forecast
of its requirement for the Product to be shipped for the nine (9) months after
the last period covered by the PO.
7.6 Purchase Orders. The following requirements shall apply to all
purchase orders:
- All Purchase Orders will be **********.
- Intellon shall accept (subject to the PO complying with
this Agreement and not exceeding the forecast) and
acknowledge in writing each Purchase Order submitted by S3
within fourteen (14) business days after receipt thereof,
and will deliver the ordered Products on the delivery date
set forth in the Purchase Order.
- S3 reserves the right to refuse delivery and return freight
collect any quantity of Products in excess of that
specified in the Purchase Order and/or any delivery made
more than fifteen (15) days in advance of, or after, the
delivery date designated by S3 in the applicable Purchase
Order.
- Intellon shall only be obligated to use reasonable
commercial efforts under the current then current
circumstances to fill Purchase Orders for Product in excess
of the applicable forecast.
- All Purchase Orders will identify the quantity of Product
required, the part number, the price per unit of completed
Product and the revision number for the Specifications that
are to be used for the Product ordered.
When acknowledgement of receipt and acceptance of the Purchase Order is made by
Intellon (either by written Notice or as otherwise stated in this Agreement),
the Purchase Order shall be deemed a commitment to purchase and sell the
Products pursuant to the terms of this Agreement.
7.7 Shipment Rescheduling. Except as provided in Section 7.3 of this
Agreement, S3 may reschedule shipments of Product in accordance with the
following table by providing Intellon a written order ("Order") for such
reschedule. The time periods specified in the following table are the number of
days after receipt by Intellon of the Order for rescheduling that the Products
were originally scheduled to be shipped. Intellon shall ship and invoice for
Product on the delivery dates specified by S3, in accordance with the forecast,
unless cancelled or rescheduled as permitted herein.
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Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
406.
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CONFIDENTIAL TREATMENT REQUESTED
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TIME RESCHEDULE
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********** **********
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********** **********
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********** **********
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********** **********
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7.8 Manufacturing Cost Reduction. Intellon agrees to consider, and where
appropriate, seek ways to reduce the cost of manufacturing Products by methods
such as elimination of components, obtaining alternate sources of materials,
negotiations with suppliers for favorable volume business terms and conditions
and improved assembly or test methods.
7.9 Manufacturing Location. Intellon shall notify S3 in writing at
least thirty (30) days prior to any change in the manufacturing location for
the Product.
7.10 Notification of Shipment. Upon shipment, Intellon shall deliver to
S3 (or a third party designated by S3) by electronic transmission through
interface provided by S3 and by facsimile transmission, a "Shipping Alert"
verifying shipment of the product. The Shipping Alert will contain the
following information:
- S3 name and shipping address;
- quantity, part number, and version number of the Product
shipped;
- shipment method and carrier;
- waybill number; and
- Purchase Order number and, if appropriate, release number.
7.11 Export. Intellon will be responsible for adhering to any export
control regulations applicable with respect to delivery of the Products to the
destinations indicated in Purchase Order(s); however, Intellon shall not be
required to bear unreasonable expenses in seeking or obtaining any license or
other permission required for any export of Products outside of the United
States. S3 will be responsible for adhering to any export regulations applicable
with respect to S3's shipment of the Products. The parties acknowledge that S3
may be shipping the Products on a world-wide basis, and Intellon shall provide
assistance and information to S3 from time to time as necessary for S3 to
determine whether the Products are subject to any export control regulations
under U.S. or any applicable foreign law. In the event that S3 intends to
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Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
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CONFIDENTIAL TREATMENT REQUESTED
export the Products that are subject to an export control restriction,
Intellon will assist S3, at S3's expense, to obtain any necessary export
licenses or other permission required for any export of Products outside the
United States.
7.12 Risk of Loss or Damage. Delivery of Product will be, and title and
risk of loss shall pass, FOB point of shipment by IntellonUnless Intellon
receives specific shipping instructions from S3 within**********, Intellon may
exercise its own discretion in selecting the method of shipment. S3 will bear
the risk of loss with respect to any Products rejected by S3 until delivered by
S3 to the common carrier reasonably acceptable to Intellon for delivery to
Intellon.
7.13 Product Acceptance. All Products will be subject to final inspection
and acceptance by S3 within **********. S3 may only reject Products if the
Products shipped by Intellon do not materially conform to the Specifications at
the time of receipt by S3. In any event, use of the Products by S3, or the
failure by S3 to return the Products within ********** shall constitute
acceptance by S3. Any Products properly rejected will be returned to Intellon in
accordance with the return procedures set forth in Section 7.15.
7.14 Invoicing. Intellon shall invoice S3 no earlier than the date that
the Product has been shipped to S3. Invoices from Intellon to S3 in respect of
Product shall contain the Purchase Order number; the part number for the Product
(which includes the Revision Number); the invoice number; the Product quantities
shipped; the Product per unit prices (per Exhibit B) and extensions; and other
information as mutually agreed.
7.15 Enclosures. Intellon shall enclose the following documents with all
shipments of Product: packing slip; commercial invoice, if applicable; and
export permit, if applicable.
7.16 Return Material Authorization Process. In the event of a defective
Product or Product that is deemed unacceptable, the return material
authorization (RMA) process will be followed. Intellon shall issue a Return
Material Authorization ("RMA") within three (3) business day after S3's request.
Any additional terms of the RMA procedure shall be mutually agreed to between
the parties. S3 shall return all such defective/unacceptable Products to
Intellon within ********** of such Products, at Intellon's expense including all
shipping and insurance costs.
8. Product Pricing. S3 agrees to pay Intellon for the purchases of
Product as set forth in Exhibit B to this Agreement, which shall be subject to
modification pursuant to Section 5 of this Agreement.
9. Payment Procedures. All payments due, if any, under this Agreement
shall be made in accordance with the following procedures:
9.1 Payment Terms. All payments made under this Agreement will be in U.S.
Dollars. Any amount not paid when due shall be subject to interest at a rate
that is ********** or the highest rate permitted by law.
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Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
406.
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CONFIDENTIAL TREATMENT REQUESTED
9.2 Payment for Purchases. Within **********, S3 shall pay Intellon the
amount properly invoiced for Products purchased by S3, less any credits or
offsets.
10. Ownership.
10.1 All right, title and interest in and to the S3 Technology shall be
and remain the property of S3, and, other than as set forth in this Agreement,
Intellon shall not acquire any rights therein.
10.2 All right, title and interest in and to the Intellon Technology
shall be and remain the property of Intellon, and, other than as set forth in
this Agreement, S3 shall not acquire any rights therein.
11. Patent Prosecution.
11.1 Intellon shall control the prosecution of any patent application
with respect to Intellon Technology, including but not limited to the decision
whether to prosecute such patent application, and such prosecution shall be at
Intellon's expense. Intellon shall be the owner of all patent applications and
patents with respect to Intellon Technology. In the event that Intellon decides
not to prosecute any patent application with respect to Intellon Technology
developed by Intellon pursuant to this Agreement, Intellon shall provide written
notice to S3 of such decision within 20 days of such a decision, S3 shall have
the right, but not the obligation, to prosecute such patent application on its
own account and at its own expense. In such case, the patent shall be assigned
to S3, provided that S3 shall grant to Intellon a royalty-free, worldwide,
paid-up, nonexclusive, perpetual, irrevocable license to make, have made, use,
sell, offer for sale, import, and distribute products covered by such patent
applications or any patents that may issue thereon. Each party shall execute and
deliver such forms of assignment, power of attorney, and other documents that
are necessary to give effect to the provisions hereof.
11.2 Without the prior written consent of the S3 (such consent not to be
unreasonably withheld or delayed) Intellon shall not abandon or otherwise cause
or allow to be forfeited any patent or part of any patent or registration with
respect to the Intellon Technology developed by Intellon pursuant to this
Agreement.
11.3 Intellon shall ensure that all employees, consultants and third
parties who perform any portion of the obligations under this Agreement (A) have
entered into written agreements with Intellon whereby such employee, consultant
or third party assigns to Intellon all ownership rights in any inventions or
discoveries made or developed by such employee, consultant or third party in the
course of such work, and (B) agree to comply with Section 14 of this Agreement.
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Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
406.
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CONFIDENTIAL TREATMENT REQUESTED
12. Representations, Warranties, Limitation on Damages.
12.1 Each party represents and warrants that it is a corporation duly
organized, existing and in good standing under the laws of the State of its
incorporation, with full right, power and authority to enter into and perform
this Agreement and to grant all of the rights, powers and authorities herein and
therein granted.
12.2 Each party represents and warrants that, to the best of its
knowledge, the Intellectual Property that such party licenses to the other under
this Agreement and/or any products it sells to the other under this Agreement
will not infringe any existing and valid patents, copyrights, trade secrets,
trademarks or other intellectual property rights of any third party. The patents
described in the prior sentence are limited to patents that are valid in
Australia, Canada, the United States, the European Union, Japan, Norway, Korea
or Malaysia.
12.3 Intellon warrants that each Product delivered will, under normal use
and conditions, substantially conform to the applicable Specifications for a
period of ********** after the specific Product has been received by S3. Should
any product fail to substantially conform to the applicable Specifications,
Intellon will, at its sole discretion, repair or replace such Product.
12.4 THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS, IMPLIED OR STATUTORY INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY
DISCLAIMED.
13. Indemnity.
13.1 Intellon will defend, indemnify and hold S3 harmless against any
claim, suit, demand, action, proceeding, liabilities, losses and expenses
(including but not limited to any related attorneys' fees and costs) incurred by
S3 arising out of, related to or based on: (i) an allegation that the Intellon
Technology or Product, or any portion thereof, infringes the Intellectual
Property rights of any third party, provided, however, that Intellon shall not
be responsible for any Claim of infringement to the extent the Claim arises from
the combination of the Product or any portion thereof with systems, materials,
or other items not furnished by Intellon, or (ii) any breach of Intellon's
representations or warranties made in Section 14.
13.2 S3 shall give to Intellon immediate written notice of any Claim.
Intellon shall have sole control of the defense and all negotiations of any
settlement or compromises with respect to a Claim. S3 agrees to furnish
Intellon, at Intellon's request, with necessary information and non-monetary
assistance in the defense of any such Claim, provided that Intellon will
reimburse S3's reasonable out-of-pocket costs incurred in providing such
assistance.
13.3 If the Intellon Technology or the Product or any portion thereof, is
found to be infringing, then, ********** and without the loss of any feature or
functionality, Intellon may modify the infringing portions so as to be
non-infringing or replace the infringing components with non-infringing
components, and if neither of the foregoing alternatives is available on terms
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Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
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CONFIDENTIAL TREATMENT REQUESTED
that are commercially reasonable, S3 will return the infringing components on
written request by Intellon, and Intellon shall pay to S3 **********.
Notwithstanding anything in this Agreement, Intellon shall not be responsible
for any Claim of infringement to the extent the Claim arises from the
combination of the Product or any portion thereof with systems, materials, or
other items not furnished by Intellon.
13.4 S3 will defend, indemnify and hold Intellon harmless against any
claim, suit, demand, action, proceeding, liabilities, losses and expenses
(including but not limited to any related attorneys' fees and costs) incurred by
Intellon arising out of, related to or based on any breach of S3's
representations or warranties made in Section 14.
14. Confidentiality.
14.1 Each party shall maintain in confidence and use only for purposes of
the exercising its rights or performing its obligations pursuant to this
Agreement, any confidential data and information supplied by the other party
(the "disclosing party") and marked as confidential ("Confidential
Information"). Confidential Information shall also include the terms and
conditions and existence of this Agreement. Confidential Information includes
any and all technical and non-technical information owned by or licensed to the
disclosing party and disclosed or supplied to the receiving party and includes
without limitation trade secret and proprietary and/or confidential information,
business information, algorithms, artwork, audio-visual works, computer programs
(source code, object code and listings), concepts, data, designs, developments,
diagrams, discoveries, documentation, ideas, inventions, know-how, methods,
procedures, specifications, and techniques related to past, current, future and
proposed products, services, and business activities and plans, and includes,
without limitation, each party's respective information concerning research,
engineering, financial information, procurement requirements, purchasing,
manufacturing, business forecasts, sales and merchandising and marketing plans
and information.
14.2 The obligations of confidentiality set forth in this Section 14
shall not apply to information that:
(a) is known to the receiving party prior to its first receipt from the
disclosing party;
(b) is independently developed by employees of the receiving party
without use of or reference to the disclosing party's Confidential Information;
(c) has become publicly available other than as a result of any default
or wrongful or negligent act or failure to act of the receiving party;
(d) is ordered disclosed in judicial or administrative government
proceedings pursuant to applicable federal, state or local law, regulation,
court order or other legal process, provided that prior to such disclosure the
receiving party shall give notice to the
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the Commission pursuant to an application for confidential treatment under Rule
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disclosing party so that the disclosing party may take reasonable steps to
oppose or limit such disclosure and that the receiving party does not disclose
any more information than necessary to comport with such order.
14.3 Each party agrees that it will disclose or make available the other
party's Confidential Information only to those of its employees, agents,
consultants and independent contractors with a reasonable "need to know" in
order to accomplish the purposes and intent of this Agreement and who have
agreed to receive such Confidential Information under terms at least as
restrictive as those specified in this Agreement.
14.4 Each party will protect the other party's Confidential Information
by using the same degree of care as it uses to protect its own confidential
information of a comparable nature, but never less than reasonable care. The
receiving party will promptly notify the disclosing party of any unauthorized
use or disclosure of the disclosing party's Confidential Information that
becomes known to the receiving party. Notwithstanding any other provision in
this Agreement to the contrary, the obligations set forth in this Section 14
will survive for five (5) years from the date of any termination or expiration
of this Agreement
14.5 Within thirty (30) days of termination of this Agreement, the
receiving party shall return to the disclosing party or destroy all the
disclosing party's Confidential Information provided under this Agreement,
unless such Confidential Information has been licensed to the receiving party
under this Agreement. All documents, memoranda, notes, and other tangible
embodiments, in electronic or nonelectronic form, prepared by the receiving
party based on or which include the disclosing party's Confidential Information
required to be destroyed or returned under this Section 14.5 shall be destroyed
to the extent necessary to remove all such Confidential Information. Upon the
disclosing party's written request, a duly authorized officer of the receiving
party shall certify in writing that this Section 14.5 has been complied with by
the recipient.
15. Duration and Termination.
15.1 Term. This Agreement shall be effective and in full force for two
(2) years from the Effective Date, and shall automatically renew for subsequent
one (1) year periods thereafter unless terminated earlier pursuant to this
Section 15.
15.2 Except for obligations set forth in Section 7.3 of this Agreement,
this Agreement may be terminated at any time with or without cause by S3 in its
sole discretion immediately upon ninety (90) days written notice to Intellon.
15.3 If either party materially breaches or defaults in the performance
or observance of this Agreement, and such breach or default is not cured to the
other party's reasonable satisfaction within thirty (30) days after the giving
of written notice by such party specifying such breach or default, such party
shall have the right, to terminate this Agreement, effective immediately upon
notice to the breaching party.
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the Commission pursuant to an application for confidential treatment under Rule
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15.4 Upon the termination of this Agreement for any reason, each party
shall retain ownership of its respective Intellectual Property.
15.5 If Intellon terminates this Agreement for cause, then, Intellon may
elect to (i) continue to supply Products to S3 under Purchase Orders that
Intellon accepted prior to the effective date of termination and S3 agrees to
pay Intellon the purchase price for such Products or (ii) cancel all such
Purchase Orders and Intellon will have no liability for such cancellation or for
any other matter except for the terms of this Agreement which survive
termination.
15.6 If S3 terminates this Agreement for cause, then S3 may elect either
(i) to have Intellon supply the Products under Purchase Orders that Intellon
accepted prior to the effective date of termination and S3 agrees to pay
Intellon the purchase price for such Products or (ii) to cancel such Purchase
Orders in accordance with the terms of this Agreement and S3 will have no
liability for such cancellation or for any other matter except for the terms of
this Agreement which survive termination.
15.7 If S3 terminates this Agreement without cause, then Intellon will
supply the Products under Purchase Orders that Intellon accepted prior to the
effective date of termination and S3 agrees to pay Intellon the purchase price
for such Products.
15.8 Neither Intellon nor S3 shall be liable to the other for
compensation, reimbursement or damages for the loss of prospective profits,
anticipated sales or goodwill as a result of the termination of this Agreement
in accordance with the terms of this Section 15.
15.9 The parties' rights and obligations under Sections 7.3, 10, 14,
15.4, 15.5, 15.6, 15.7, 16, and 17 of this Agreement shall survive expiration or
termination of this Agreement for any reason and shall remain in effect.
16. EXPORT COMPLIANCE. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY
AND ALL TREATIES, LAWS, REGULATIONS, RULES, ORDERS OR OTHER RESTRICTIONS ON THE
EXPORT FROM THE UNITED STATES OF AMERICA (OR THE RE-EXPORT AFTER SUCH SHIPMENT)
WHICH MAY BE IMPOSED FROM TIME TO TIME. EACH PARTY WILL COMPLY WITH ALL
APPLICABLE LAWS AND REGULATIONS OF ALL APPLICABLE COUNTRIES REGULATING OR
AFFECTING THE CREATION, USE, EXPORT, IMPORT OR LICENSING OF TECHNICAL
INFORMATION AND/OR DATA RELATED TO THIS AGREEMENT. NOTWITHSTANDING ANYTHING
CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NEITHER S3 NOR INTELLON SHALL
EXPORT OR RE-EXPORT, DIRECTLY OR INDIRECTLY, ANY TECHNICAL INFORMATION AND/OR
DATA, AND/OR ANY PRODUCT EMBODYING SUCH TECHNICAL INFORMATION OR DATA RELATED TO
THIS AGREEMENT TO ANY COUNTRY OR DESTINATION FOR WHICH SUCH GOVERNMENT OR ANY
AGENCY THEREOF REQUIRES AN EXPORT LICENSE OR OTHER GOVERNMENTAL APPROVAL AT THE
TIME OF EXPORT, RE-EXPORT OR TRANSSHIPMENT WITHOUT FIRST OBTAINING SUCH LICENSE
OR APPROVAL. THE PARTY SHIPPING THE PRODUCTS OR INFORMATION SHALL BE RESPONSIBLE
12
Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
406.
13
CONFIDENTIAL TREATMENT REQUESTED
FOR COMPLIANCE WITH EXPORT TREATIES, LAWS, REGULATIONS, RULES, ORDERS OR OTHER
RESTRICTIONS.
17. General.
17.1 This Agreement is made for the benefit of S3 and Intellon, and not
for the benefit of any other parties. The parties are independent contractors
under this Agreement. Neither party nor its employees, consultants, contractors
or agents are agents, employees or joint venturers of the other, nor do they
have any authority to bind the other by contract or otherwise to any obligation.
17.2 NEITHER PARTY SHALL BE RESPONSIBLE FOR, AND EACH PARTY SPECIFICALLY
DISCLAIMS LIABILITY FOR, ANY SPECIAL, INCIDENTAL, INDIRECT, RELIANCE, OR
CONSEQUENTIAL DAMAGES OF THE OTHER PARTY WITH RESPECT TO OR ARISING OUT OF THIS
AGREEMENT, THE PERFORMANCE OF SERVICES OR OBLIGATIONS HEREUNDER, OR ANY PURCHASE
ORDER OR ANY BREACH OR DEFAULT HEREUNDER OR THEREUNDER, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL INTELLON BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING
FROM INTELLON'S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER OR THE FURNISHING,
PERFORMANCE, OR USE OF ANY PRODUCT SOLD PURSUANT HERETO.**********.
17.3 This Agreement and any applicable Purchase Order, and all rights and
obligations hereunder and thereunder, are personal to the parties hereto and
shall not be assigned by either party to any third party without the prior
written consent thereto by the other party except in connection with the
transfer (whether by purchase, merger, reorganization or otherwise") to a
purchaser of all or substantially all of the party's assets or a majority of
such party's voting stock. Any attempted assignment or subcontract in violation
of the provisions of this Section 17.3 will be void.
17.4 No term or condition of this Agreement or any portion thereof shall
be deemed waived unless such waiver is in a writing executed by the party
against whom the waiver is sought to be enforced. Failure or delay in the
exercise of any right, power or privilege hereunder shall not operate as a
waiver thereof or of any subsequent failure or delay.
17.5 The formation, validity, construction and the performance of this
Agreement are governed by the laws of the United States and the State of
California as applied to agreements entered into and to be performed entirely
within California between California residents. The parties hereby consent and
submit to the exclusive jurisdiction of the State and Federal courts located in
the State of New York, in any litigation arising out of this Agreement.
17.6 The English language is the official language of this Agreement, and
in the event of inconsistency, the English language version will prevail over
any translation into another language. All communications and notices under or
in connection with this Agreement shall also be in the English language.
13
Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
406.
14
CONFIDENTIAL TREATMENT REQUESTED
17.7 Any provision of this Agreement which is invalid, illegal or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability, without
affecting in any way the remaining provisions hereof in such jurisdiction or
rendering that or any other provision of this Agreement invalid, illegal or
unenforceable in any other jurisdiction. If any provision of this Agreement
shall be declared so broad as to be invalid or unenforceable, such provision
shall be interpreted to be only so broad as is necessary for it to be valid or
enforceable.
17.8 All notices required or permitted under this Agreement and the s
will be in writing and will be deemed given when: (a) delivered personally; (b)
when sent by confirmed telex or facsimile; (c) upon the date of delivery after
having been sent by registered or certified mail, return receipt requested,
postage prepaid; or (d) on the date of delivery after deposit with a commercial
deliver service, with written verification of receipt. All communications will
be sent to the addresses set forth below to or to another address designated by
written notice:
To Intellon:
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Address: same as first written above
Attention: ___________________
To S3:
Fax No.: (000) 000-0000
Telephone No.: (000) 000-0000
Address: same as first written above
Attention: ___________________
A party may, if it so desires, designate different address(es) for notices under
this Agreement.
17.9 The captions and headings used in this Agreement are intended for
convenience only, and shall not affect the construction or interpretation of any
section or provision of this Agreement. For purposes of this Agreement, the
singular shall include the plural and vice-versa.
17.10 This Agreement and each has been negotiated by the respective
parties hereto and shall not be construed for or against any party.
17.11 This Agreement, including all exhibits and attachments hereto and
thereto, constitute the entire understanding and agreement of the parties
related to the subject matter hereof and thereof, and supersede any and all
prior or contemporaneous offers, negotiations, agreements and/or understandings,
written or oral (including but not limited to the Memorandum of Understanding
between the parties), as to such subject matter. No amendment, revision or
modification of this Agreement or any shall be effective or binding unless made
in writing and signed by the party against whom enforcement is sought.
14
Portions of this agreement have been omitted and filed separately with
the Commission pursuant to an application for confidential treatment under Rule
406.
15
CONFIDENTIAL TREATMENT REQUESTED
17.12 This Agreement may be executed in one or more counterparts, each of
which will be deemed an original, but which collectively will constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be
executed and delivered as of the date first written above.
INTELLON CORPORATION
By
---------------------------------
Name
-------------------------------
Title
------------------------------
S3 INCORPORATED
By
---------------------------------
Name
-------------------------------
Title
------------------------------
15
Portions of this agreement have been omitted and filed separately with the
Commission pursuant to an application for confidential treatment under Rule 406.
16
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A
DEVELOPMENT PLAN
For the Specification of the Chipset, see Intellon data sheets "INI5130
Integrated Powerline MAC/PHY Transceiver," Revision 3, June 2000, and "INT1000
Analog Conversion IC," Revision 2, June 2000.
The Development timeline is as follows:
-------------------------------------------------
Milestone Date
-------------------------------------------------
********** **********
-------------------------------------------------
********** **********
-------------------------------------------------
********** **********
-------------------------------------------------
********** **********
-------------------------------------------------
The following chart details the project activities and milestones:
July 19, 2000
17
EXHIBIT A -- DEVELOPMENT PLAN
**********
July 19, 2000
18
EXHIBIT B
PRODUCT PURCHASE PRICING
The parties agree to the following pricing for the Chipset. Pricing drops
to the next lowest tier as the aggregate shipments grow and cross the associated
volume thresholds within 12 consecutive months from the First Production Date
and subsequent 12-month periods thereafter. The engineering sample chipset
(ES5130 Chipset) **********.
----------------------------------------------------------
Baseline
INT5130
Chipset Price S3
Cumulative (reference INT5130
Volume only) Chipset Price
----------------------------------------------------------
********** ********** **********
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********** ********** **********
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********** ********** **********
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********** ********** **********
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********** ********** **********
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********** ********** **********
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********** ********** **********
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********** ********** **********
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July 19, 2000
