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EXHIBIT 10.48
[VLSI TECHNOLOGY LOGO]
DESIGN AND DEVELOPMENT AGREEMENT
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THIS DESIGN AND DEVELOPMENT AGREEMENT ("Agreement") is entered into as of
May 12, 1998 ("Effective Date") by and between VLSI Technology, Inc., with
offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("VLSI") and ELECTRONICS
ACCESSORY SPECIALISTS INTERNATIONAL, INC. (1) with offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Buyer").
(1) DBA MOBILITY ELECTRONICS
WHEREAS, Buyer requires a design (the "Product Design") for a particular
integrated circuit (the "Product"), meeting the general specifications to be
established pursuant to the Statement of Work, attached hereto as EXHIBIT A (the
"Statement of Work"); and
WHEREAS, Buyer intends to market said Product in significant quantities;
and
WHEREAS, VLSI has expertise in the design of integrated circuits, and
believes it can produce a design for Product;
NOW THEREFORE, the parties hereto agree as follows:
1. DESIGN RESPONSIBILITIES
VLSI and Buyer agree to perform the activities set forth in the Statement of
Work and to complete each such activity by the Target Completion Date as set
forth therein. To the extent there is delay in completion of any activity
required by the Statement of Work, there shall be an equal extension of the
target completion date of all subsequent activities. Buyer and VLSI shall each
indicate acceptance of completion of each relevant design step by executing the
completion sign-off for such step on the Statement of Work, or a copy of the
Statement of Work. All executed copies of the Statement of Work shall be deemed
merged into and become a part of this Agreement. Any documents listed as
reference documents in the Statement of Work, including but not limited to,
specifications, description of training, or special requirements shall be deemed
incorporated herein, but only to the extent such documents are not in conflict
with other terms of this Agreement.
2. CHANGES TO SPECIFICATION
Any changes to the specifications of the Product requested by Buyer shall be
subject to mutual agreement by both parties and the Statement of Work and/or
Payment Schedules, attached hereto as EXHIBIT B, shall be adjusted accordingly,
as mutually agreed by VLSI and Buyer.
3. INSPECTION
During the term of this Agreement, each party shall keep the other advised of
the progress of its work and shall permit appropriate representatives to visit
its facilities upon reasonable notice during normal business hours.
4. EXCLUSIVE RIGHTS
A. Buyer shall have exclusive rights to the Product Design completed by VLSI
during the term of this Agreement. Such Product Design shall also include
any future versions of the Product designed by VLSI for Buyer. VLSI shall
retain title to and possession of photomasks and database tapes, but shall
not use any photomasks or database tapes unique to the Buyer's Product
Design for any purpose other than the manufacture of Product in accordance
with Buyer's instructions, and shall destroy such photomasks or tapes upon
Buyer's written request. VLSI agrees that it shall not sell the Product
(including any future versions of the Product) to any third party.
B. Buyer understands and agrees that the exclusive rights granted hereunder
are rights to the Product as a whole. Parts of the Product, excluding any
of Buyer's Confidential Information but including, but not
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limited to, components commonly known as base arrays, standard cells, or
megacells, are the property of VLSI and may be used in other designs
completed by VLSI for itself or third parties. No rights are granted to
Buyer to use any part of the Product except to the extent it is part of the
complete Product.
C. Buyer has identified and disclosed to VLSI certain concepts and approaches
relative to the Product, the Statement of Work, and Buyers docking station
strategy, specifically including its approach to split a PCI bridge and
recreate the PCI bus at a remote location (i.e. in a dock) by means of
serializing the PCI bus and transmitting over a high speed, low wire count
cable (collectively the "Concepts"). Such Concepts shall be considered
Confidential Information and subject to the provisions of Section 9 hereto
and as such, VLSI agrees to adhere to such confidentiality restrictions
including, without limitation, the express prohibition against selling or
otherwise marketing any such Confidential Information received from Buyer.
5. PAYMENT
A. Buyer shall pay VLSI for Product design and development in accordance with
the Payment Schedule. Each payment shall be in U.S. dollars and is due
within thirty (30) days of receipt of invoice. Shipments, deliveries, and
performance of work shall at all times be subject to the approval of VLSI's
credit department which approval shall not be unreasonably withheld. VLSI
may at any time decline to make any shipments, deliveries or perform any
work except upon receipt of payment/security or upon terms and conditions
satisfactory to VLSI's credit department.
B. Design and development fees once paid are non-refundable.
6. TERM/TERMINATION
A. This Agreement will become effective as of the Effective Date and will
continue in full force and effect through the completion and sign-off of
the Statement of Work, unless earlier terminated as stated below, whereupon
it will expire without notice unless the parties agree in writing to renew
this Agreement prior to such expiration or termination. Notwithstanding
anything herein to the contrary, upon termination of this Agreement, the
terms and provisions of this Agreement shall be deemed to be terminated and
of no further force or effect, except the provisions of Sections 4, 9 and
11(M) hereof shall survive the termination of this Agreement.
B. Buyer may terminate this Agreement with thirty (30) days written notice to
VLSI. If this Agreement is terminated for any reason, except for a breach
hereof by VLSI, prior to acceptance of prototypes, Buyer shall pay VLSI at
the applicable rate set forth in the Payment Schedule for all services
provided by VLSI. In the event Buyer has agreed to pay by milestone, Buyer
shall pay for all milestones achieved in addition to the amount of the next
following milestone.
7. BUYER SPECIFIC MATERIALS
A. "Buyer Specific Materials" are those raw materials that have specifications
unique to Buyer's Product, including but not limited to, having unique
cavities, packages not authorized for use by other VLSI customers within
three (3) months, or Buyer specific silicon starting material.
B. VLSI will procure Buyer Specific Materials only after receipt of Buyer's
purchase order specifically requesting such Buyer Specific Materials.
Sufficient Buyer Specific Materials will be procured to cover only the
amount or quantity specified in Buyer's purchase order.
C. Standard manufacturing lead times do not include possible additional lead
time necessary for procurement of Buyer Specific Materials.
D. Buyer shall be liable for the actual cost of any Buyer Specific Materials
plus reasonable handling fee(s) incurred by VLSI in the event of
cancellation or termination by Buyer.
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8. SHIPMENT OF PRODUCT
A. All Product shipped prior to prototype completion sign-off on the Statement
of Work shall be AS IS, WITHOUT WARRANTY OF ANY KIND. After prototype
completion sign-off, Product shall be shipped pursuant to applicable
production agreement warranty.
B. All shipments covered by this Agreement are Ex-works VLSI's facility,
freight collect. VLSI will follow Buyer's instructions on methods of
shipment if provided; otherwise VLSI shall select the carrier and shipment
methods.
C. Title and risk of loss or damage to the Products shall pass to Buyer upon
VLSI's delivery to the carrier. Buyer accepts full responsibility for
maintaining any insurance to cover any loss related to loss or damage to
Buyer's Products in transit.
9. CONFIDENTIAL INFORMATION
A. "Confidential Information" shall mean that information of either party
which is disclosed to the other party ("Recipient") by reason of the
parties' relationship hereunder, either directly or indirectly in any
written or recorded form, orally, or by drawings or inspection of parts or
equipment, and, either in writing and marked as confidential or
proprietary, or if oral, disclosed as such and reduced to writing similarly
marked within thirty (30) days of disclosure.
B. Recipient covenants and agrees that it will use or market the Confidential
Information only for performance of Recipient's obligations hereunder, and
shall not disclose such Confidential Information to any person or persons
who do not need to have knowledge of such Confidential Information in the
course of their employment with Recipient. Recipient shall use the same
degree of care as it employs with respect to its own confidential and
proprietary information and at a minimum to exercise reasonable care.
C. It is expressly understood that Recipient shall not be liable for
disclosure of any Confidential Information if the same:
i. was in the public domain at the time it was disclosed;
ii. was known to Recipient at the time of disclosure, as evidenced by
Recipient's written records;
iii. was independently developed by Recipient; or
iv. becomes known to Recipient, on a non-confidential basis, from a source
other than the other party hereto, without breach of this Agreement by
Recipient.
10. LIMITATION OF LIABILITY
In no event shall either party be liable for any indirect, special,
incidental or consequential damages resulting from its performance or
failure to perform under this Agreement, or the furnishing, performance, or
use of any goods or services sold pursuant hereto, whether due to a breach
of contract, breach of warranty, or such party's negligence. Neither
party's liability hereunder shall exceed the amount of monies paid
hereunder.
11. GENERAL
A. Neither party may assign its rights or obligations under this Agreement
without the prior consent of the other party, and any purported assignment
without such consent shall have no force or effect, except that a party may
assign this Agreement incident to the transfer of all or substantially all
of its business. Subject to the foregoing, this Agreement shall bind and
inure to the benefit of the respective parties hereto and their successors
and assigns.
B. Neither party is authorized to act for or on the behalf of the other party
under this Agreement. Each party is an independent contractor, and no
principal/agent or partnership relationship is created between them by this
Agreement.
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C. No failure or delay by either party to enforce or take advantage of any
provision or right under this Agreement shall constitute a subsequent
waiver of that provision or right, nor shall it be deemed to be a waiver of
any of the other terms and conditions of this Agreement.
D. Neither party to this Agreement shall be liable for its failure to perform
any of its obligations hereunder during any period in which such
performance is prevented by any cause beyond its reasonable control. In the
event of any such delay the date of delivery or performance hereunder shall
be extended by a period equal to the time lost by reason of such delay.
E. This Agreement shall be governed by and interpreted in accordance with the
laws of the State of California, USA.
F. The prevailing party in any legal action arising out of, or related to this
Agreement shall be entitled, in addition to any other rights and remedies
it may have, to reimbursement for its expenses incurred in such action,
including court costs and reasonable attorney's fees.
G. Unless otherwise stated herein, amounts stated as payable under this
Agreement do not include customs duties or sales, use, excise or other
similar taxes payable hereunder, and the same shall be added to such
amounts.
H. Data and products provided hereunder may not be exported from the United
States, or re-exported from any other country, except in compliance with
United States Export Control Laws, and the parties agree to operate in full
compliance with these and all other applicable laws.
I. All notices or communications to be given under this Agreement shall be in
writing and shall be deemed delivered upon hand delivery, confirmed
facsimile communication, or three (3) days after deposit in mail of the
home country of the party, postage prepaid, by certified, registered or
first class mail, addressed to the parties at their addresses set forth
above.
J. In the event that any provision of this Agreement is prohibited by any law
governing its construction, performance or enforcement, such provision
shall be ineffective to the extent of such prohibition without invalidating
thereby any of the remaining provisions of the Agreement.
K. The terms and conditions of this Agreement may not be superseded, modified,
or amended except in writing which states that it is such a modification,
and is signed by an authorized representative of each party hereto.
However, VLSI may modify the specifications of Products sold hereunder, if
such modification does not change the Product's form, fit or function.
L. This Agreement, including exhibits, constitutes the entire Agreement
between the parties as to the subject matter hereof, and supersedes and
replaces all prior or contemporaneous agreements, written or oral,
regarding such subject matter, and shall take precedence over any
additional or conflicting terms which may be contained in either party's
purchase orders or order acknowledgment forms.
M. Each party agrees that money damages would not be a sufficient remedy for
any breach of this Agreement by the other party, and that each party shall
be entitled to specific performance as a remedy for a breach hereof, in
addition to all other remedies available at law or in equity to such party.
ACCEPTED AND AGREED BY:
VLSI TECHNOLOGY, INC. BUYER
Signature: /s/ ▇▇▇▇ ▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President Title: V.P.
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Date: 5/12/98 Date: 5/12/98
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