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EXHIBIT 10.17
CONFIDENTIAL
TECHNOLOGY DEVELOPMENT AND SUPPORT AGREEMENT
This Technology Development and Support Agreement (the "Agreement") is
made and entered into this 28th day of June, 1996, (the "Effective Date") by
and between Award Software International, Inc., a California corporation
("Award"), having its corporate offices at 777 East Middlefield Road, Mountain
View, California, 94043, and Advanced Micro Devices, Inc., a Delaware
corporation ("AMD"), having its corporate offices at One AMD Place, P.O. Box
3453, Sunnyvale, California 94088.
1. BACKGROUND
1.1 The following background paragraphs are intended to be a general
introduction to this Agreement. They set forth the circumstances under
which the parties entered into this Agreement and the intentions and
objectives of the parties in doing so. To the extent that this Agreement
does not address a particular circumstance or is otherwise unclear or
ambiguous, this Agreement is to be construed so as to give the fullest
possible effect to the intentions and objectives stated in this
Section 1.
1.1.1 Award is in the business of developing, marketing, and licensing
BIOSes, firmware and other system software for x86-based
desktop, portables, and server computers.
1.1.2 AMD is in the business of designing, manufacturing, marketing,
and selling integrated circuits, and is presently developing a
series of advanced x86-compatible superscalar microprocessors,
known as the "K86 superscalar microprocessors." AMD intends to
design and develop a number of PC system platforms for its K86
superscalar microprocessors, including platforms used (i) for
validation and debugging, (ii) for evaluation, and (iii) to
serve as a baseline reference design or production-ready design
for AMD's microprocessor customers.
1.1.3 Award and AMD desire to enter into this Agreement and one or
more Work Statements under which Award would develop BIOSes,
firmware, system software and other software products
("Developed Products") to support AMD's platforms designed for
its K86 superscaler microprocessor. Award shall use [*] to
develop the Developed Products based on AMD's specifications and
performance and functionality requirements, and AMD shall
provide development assistance and resources, as provided in the
applicable Work Statement.
1.1.4 AMD and Award desire that Award shall make the Developed
Products commercially available in Binary Code, and provide
quality assurance, marketing resources, maintenance and customer
support for the Developed Products as provided herein.
1.1.5 AMD and Award agree to explore additional opportunities for
supplemental agreements regarding the purchase by AMD from Award
of
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goods, licenses, and services, and joint product development and
distribution in the embedded processor and flash device markets.
1.2 For and in consideration of the mutual covenants set forth herein and
for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereby agree as follows:
2. DEFINITIONS
When used in this Agreement, the capitalized terms below shall have the
following meanings:
2.1 "Affiliate" means, when used with respect to a specified entity, another
entity that directly or indirectly Controls, or is under common Control
with, or is Controlled by the entity specified; provided that such other
entity shall be deemed to be an Affiliate only for so long as such
Control exists. For purposes of this definition of Affiliate, "Control"
means the ownership or control of [*] or more interest in the equity
or voting power of an entity.
2.2 "Agreement" means this Technology Development and Support Agreement made
and entered into on the Effective Date by and between Award and AMD,
including the Initial Work Statement and all future Work Statements that
may be entered into by the parties pursuant to Section 3.5 below.
2.3 "AMD" means Advanced Micro Devices, Inc. and its Affiliates.
2.4 "Award" means Award Software International, Inc. and its Affiliates.
2.5 "Code" means computer programming code. If not otherwise specified,
Code includes both Object Code and Source Code.
2.5.1 "Object Code" means the machine-readable form of the Code.
2.5.2 "Source Code" means the human-readable form of the Code.
2.6 "Deliverables" means all Code, related documentation, other materials
regardless of form or media, and services that Award does or is required
to develop, deliver, or render to or for AMD pursuant to this Agreement.
Deliverables include, without limitation, the intermediate and final
releases of Developed Products, and all Updates thereto as provided in
Section 7.4 below.
2.7 "Developed Products" means the production-ready version of BIOSes,
firmware, system software and other software products developed by Award
pursuant to a Work Statement, and all Updates thereto developed by
Award.
2.8 "Initial Work Statement" means the Work Statement described in Section
3.4 below.
2.9 "Intellectual Property Rights" means the worldwide intangible legal
rights or interests evidenced by or embodied in (i) any idea design,
concept, method, process, technique, apparatus, invention, discovery, or
improvement, including any patents, trade secrets, and know-how; (ii)
any work of authorship, including any copyrights, industrial designs, or
moral rights recognized by law; and (iii) any other
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similar rights. Intellectual Property Rights of a party include all
worldwide intangible legal rights or interests that a party may have
lawfully acquired or licensed from any third party.
2.10 "Proprietary Information" means all trade secret or confidential
information in any form or media disclosed by one party (the "Disclosing
Party") to the other party (the "Receiving Party"); provided, however,
that to be deemed Proprietary Information, the information, if in
tangible form, must be prominently marked with the words "proprietary,"
"confidential," or words of similar import, or if disclosed orally, must
be identified at the time it is disclosed as constituting trade secret
or confidential information subject to the restrictions provided in this
Agreement, provided that any confidential information relating to future
products or product development plans disclosed by either party at any
quarterly meeting held pursuant to Section 6.4 shall constitute
"Proprietary Information" even if it has not been identified as such at
the time it is disclosed. Notwithstanding the above, however,
Proprietary Information shall not include:
2.10.1 any information which is generally known or available, or
becomes known or available, without breach of this Agreement;
2.10.2 any information which has been publicly disclosed by the
Disclosing Party;
2.10.3 any information previously known by the Receiving Party;
2.10.4 any information that is rightfully received from a third party
without breach of an obligation of confidence; or
2.10.5 any information that is independently developed by Receiving
Party without use of Proprietary Information of the
Disclosing Party.
2.11 "Software Requirements" means the functional specifications and
performance standards for a Deliverable as specified in the applicable
Work Statement.
2.12 "Testing Criteria" means the testing criteria for a Deliverable as
specified in the applicable Work Statement.
2.13 "Updates" means revisions of any Developed Product that corrects any
error, problem, or defect that causes the Developed Product to fail to
meet the applicable Software Requirements, renders the Developed Product
completely or partially inoperable, causes incorrect results, or causes
incorrect functions to occur during the operation of the Developed
Party.
2.14 "Work Statements" means the Initial Work Statement and all future work
statements issued in accordance with Section 3 below.
3. WORK STATEMENTS
3.1 Generally. All work to be performed under this Agreement shall be in
accordance with the terms set forth in this Agreement and in the
applicable Work Statement. A Work Statement shall be a writing signed by
an authorized representative of each party and shall reference this
Agreement. A Work Statement must also meet
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the requirements of Section 3.2 below. Upon execution, all Work
Statements shall be attached hereto and incorporated herein by
reference.
3.2 Mandatory Provisions. A Work Statement must include the following
provisions and items:
3.2.1 A description and timeline of the phases of work to be
performed, and milestones for Award's performance, delivery
and testing of the Deliverables ("Delivery Schedule");
3.2.2 A list of the Deliverables to be delivered to AMD under the Work
Statement;
3.2.3 The amount of payment, and milestone dates for payment by AMD,
if any, for the Deliverables ("Payment Schedule");
3.2.4 The description and amount of engineer training and consultation
to be provided to AMD by Award;
3.2.5 The Software Requirements for each of the Deliverables;
3.2.6 The Testing Criteria for each of the Deliverables;
3.2.7 A list of resources made available by AMD for Award's use in
the performance of its obligations under this Agreement, if any;
3.2.8 The name, address, phone number, and facsimile number of the
Project Coordinators for each party, as described in Section 4.2
below, and, if different from the Project Coordinators, the
Technical Coordinators for each party, as described in Section
4.3 below; and
3.2.9 The provisions for written and/or oral progress reports by Award
if different than as set forth in Section 6 below.
3.3 Optional Provisions. In addition to the mandatory provisions provided
in Section 3.2, a Work Statement may include one or more of the
following items:
3.3.1 Whether training classes shall be provided to AMD, and a
description of the subject matter to be covered, the location
where the classes will be conducted, fees, if any, payable by
AMD for such training, and the maximum number of AMD employees
who may attend;
3.3.2 For each Developed Product, the number of copies AMD is licensed
to distribute for use with the applicable platform; and
3.3.3 The minimal level of staffing required of Award for the
development of the Deliverables.
3.4 Initial Work Statement. The Initial Work Statement is attached to this
Agreement as Exhibit A.
3.5 Future Work Statements. Upon AMD's reasonable request, AMD and Award
will meet from time-to-time to discuss their respective product plans
and technologies, pursuant to which AMD may provide Award with proposed
Software
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Requirements for one or more Deliverables that AMD is interested in
Award developing, and request Award to provide a response to such
proposal. Within thirty (30) days of AMD's request, Award agrees to
provide AMD with a written response. If, in AMD's sole discretion, the
response is acceptable, then the parties shall prepare and execute a
Work Statement that shall incorporate the proposed Software Requirements
and relevant terms of Award's response, which together shall constitute
the applicable Software Requirements. Award may only commence work upon
such Deliverables after execution by both parties of the Work Statement.
3.6 Number of Work Statements. During each year of the term of this
Agreement, Award shall agree to use [*] to develop and support Developed
Products as provided hereunder for at least the [*] AMD K86 platforms
for which AMD provides proposed Software Requirements during such year,
and accepts Award's written response as provided in Section 3.5 above.
Award agrees to negotiate in good faith a Work Statement for each such
Developed Product. The maximum amount of non-recurring engineering
charges ("NRE") payable by AMD for each of such Developed Products shall
be [*]; provided, however, that if Award demonstrates that the
development of such Developed Product would require Award's expenditure
of materially more time and effort than that required by any preceding
Developed Product developed hereunder for an NRE of [*], the parties
shall in good faith negotiate an increased NRE payable for such
Developed Product that is commensurate with such increased time and/or
effort. The number of Developed Products requested by AMD hereunder, the
providing of proposed Software Requirements, and the acceptance of
Award's response shall be at AMD's sole discretion.
3.7 Changes to Agreement, Work Statement. Either party may propose changes
to this Agreement or any Work Statement to the other party, provided
that such change proposals shall be submitted in writing. No changes to
the Agreement or any Work Statement shall become effective until a
written amendment specifying the change or changes is executed by
authorized representatives of both parties.
3.8 Changes to Software Requirements. AMD may request changes to the
Software Requirements at any time during the term of the applicable Work
Statement. Such requests shall be submitted by AMD in writing. If such
modifications do not, in Award's reasonable judgment, require Award's
expenditure of materially more time and effort, Award will develop the
corresponding Deliverable to conform to such modifications at no
additional charge and with no change to the Delivery Schedule. If any
such modification does require, in Award's reasonable judgment, Award's
expenditure of materially more time or effort, the parties will discuss
in good faith how the additional cost, if any, will be allocated between
them, and Award will advise AMD of the impact on the Delivery Schedule.
Upon receipt of AMD's written approval, Award will proceed with
implementation of the prescribed changes, and the parties shall update
the Software Requirements and Delivery Schedule to reflect such changes.
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4. CONTRACT ADMINISTRATION AND STAFFING
4.1 Contract Coordinators. The Contract Coordinators for the parties shall
be as follows:
For Award: Dave Wippich
Ph: (415) 968-4433, Ext. 462
Fax: (415) 968-9158
For AMD: Ned Finkle
Ph: (408) 749-2452
Fax: (408) 774-7007
The Contract Coordinator shall oversee the performance of the parties'
obligations under this Agreement, and resolve any issues relating to
Deliverables applicable to that Work Statement that the Project
Coordinator or Technical Coordinators for that Work Statement are unable
to resolve. The Contract Coordinator shall also be responsible for
receiving all notices under this Agreement and for all administrative
matters such as invoices, payments, and changes. Either party may change
its Contract Coordinator upon written notice to the other party.
4.2 Project Coordinator. Each Work Statement shall designate a Project
Coordinator for the parties for the Deliverables applicable to that Work
Statement. The Project Coordinator shall also be responsible for
overseeing the performance of the parties' obligations under the
applicable Work Statement, and resolving any issues relating to
Deliverables applicable to that Work Statement that the Technical
Coordinators for that Work Statement are unable to resolve. The Project
Coordinator shall be responsible for arranging all meetings, visits, and
consultations between the parties relating to the applicable Work
Statement.
4.3 Technical Coordinators. The Project Coordinators shall also serve as
the Technical Coordinators for the parties; provided, however, that each
Work Statement may otherwise designate one or more different Technical
Coordinators for the Deliverables applicable to that Work Statement. The
Technical Coordinator(s) of each party shall be responsible for
technical and performance matters and delivery and receipt of the
Deliverables and technical information between the parties, in so far as
the Deliverables and technical information relate to such Work
Statement.
4.4 Staffing Requirements. Award agrees to provide qualified and sufficient
staffing necessary to meet its obligations under this Agreement,
including each Work Statement. Each Work Statement may designate a
specific minimum level of staffing required for such Work Statement.
4.5 Employee Issues. Award's employees shall be and remain the employees of
Award and shall not be considered as joint employees with AMD for any
purpose. Award shall be responsible for the supervision of its
employees. Award shall be responsible for the payment of all
compensation and benefits attributable to its
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employees and for the maintenance of appropriate workers' compensation
and other employment related insurance. With each of its employees and
contractors who participate in any of Award's work under this Agreement,
including any Work Statements, Award shall obtain and maintain in effect
written agreements imposing an obligation of confidence on the employee
or contractor with respect to any third party's proprietary information,
and assigning all Intellectual Property Rights conceived, developed or
created by the employee or contractor to Award. At AMD's request, Award
shall supply copies of such agreements to AMD.
5. NOTICE OF DELAY OR INABILITY TO PERFORM
5.1 Generally. Award agrees to notify AMD orally within twenty-four (24)
hours of its discovery of any factor, occurrence, or event coming to its
attention that may affect Award's ability to meet the requirements of
any Work Statement. The oral notice shall be confirmed in writing within
one week following the oral report. The written confirmation shall also
state the reason for the delay and the impact of the delay upon the
Deliverables and the Delivery Schedule.
5.2 Time is of the Essence. The parties agree that the dates corresponding
to each milestone in each Work Statement are firm, and that time is of
the essence in this Agreement, including all of the Work Statements. By
executing a Work Statement, Award agrees that the deadlines and
milestones specified therein are reasonable. Except as otherwise stated
in Section 16.3 ("Relief from Obligations"), a delay of more than thirty
(30) days in the delivery of a Deliverable for such Work Statement shall
be considered a material breach by Award of such Work Statement and this
Agreement, unless (i) such delay was caused by a delay or non-delivery
by AMD, or any third party that AMD requires Award to use, of a resource
specified in the applicable Work Statement (ii) such delay is due to
incorrect operation of a resource supplied by AMD, or (iii) AMD has
agreed to a delay on a project as provided in Section 7.3 below. By
accepting late or otherwise inadequate performance of any of Award's
obligations, AMD shall not waive its rights thereafter to require timely
performance or performance that strictly complies with this Agreement.
6. REPORTS AND MEETINGS
6.1 Frequency and Content of Reports. For each Work Statement, Award agrees
to provide AMD's applicable Project Coordinator a biweekly written
report of the progress of the work required under the Work Statement,
any anticipated problems (resolved or unresolved), software and hardware
bugs, and bug resolution and tracking, and any indication of delay in
Award's performance or delivery of the applicable Deliverables. A Work
Statement may, however, provide for a different content or frequency for
such reports and information than as specified above.
6.2 Project Meetings. For each Work Statement, the parties shall conduct
[*] conference calls at a time to be mutually agreed upon, during which
Award shall
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describe the status of the work required under the Work Statement, and
shall provide projections of the time of completion of the Work
Statement, the status of the applicable Deliverables, and address any
problems that have come to Award's attention. Award shall also provide
its view as to how any problems may be resolved. During such meetings,
AMD agrees to provide Award with information relating to the status and
results of AMD's testing of Award's Deliverables.
6.3 Modifications. Modifications discussed or proposed in reports by either
party, or meetings or conferences between the parties, shall not modify
this Agreement, any Work Statement, or any of Award's obligations
thereunder unless such modification is agreed to in writing by both
parties.
6.4 [*] Meetings. During the term of this Agreement, AMD and Award
agree to meet [*] at a time and location to be mutually agreed
upon, during which AMD shall discuss with Award its product and
marketing roadmaps, as well as BIOS and firmware requirements, for AMD's
K86 microprocessors, chip sets, and platforms designed for K86
microprocessors. In addition, each party shall discuss their
perspectives regarding industry standards, marketing trends for such
standards, and industry initiatives affecting PC architecture, BIOS and
firmware.
7. DELIVERABLES
7.1 Deliverables. For each Work Statement, Award shall use [*] to deliver
all Deliverables specified in such Work Statement upon completion, but
in no event later than the Delivery Schedule, to AMD's applicable
Technical Coordinator. Award shall memorialize such delivery in a
written confirmation, which sets forth the nature and condition of the
Deliverables, the medium of delivery, and the date of delivery.
7.2 Test and Debug by Award. Prior to delivery, Award shall perform such
tests of the Deliverables as are specified in the applicable Testing
Criteria to determine if the Deliverables substantially conform to and
meet in every material respect the applicable Software Requirements. All
such testing shall be performed and completed by Award by the dates
corresponding to each applicable "test" milestone in the applicable Work
Statement. For each Deliverable, Award shall advise AMD in writing upon
completing the testing, but in no event later than the date
corresponding to the applicable "test" milestone, whether the
Deliverable, as tested, substantially meets the applicable Software
Requirements in every material respect. In the event the Deliverable
fails to meet any material aspect of the applicable Software
Requirements, Award shall advise AMD in writing of the non-compliance(s)
and the suspected reasons for the non-compliance(s).
7.3 Acceptance and Rejection. Upon receipt of written notification from
Award relating to the test results for each Deliverable, AMD shall have
[*] days to notify Award in writing whether AMD accepts or rejects the
applicable Deliverable. The parties agree that AMD may, in its
reasonable judgment, determine if each of the Deliverables conforms
to and meets in every material respect the applicable Software
Requirements. AMD shall be deemed to have
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accepted the Deliverables if it does not notify Award of its decision to
accept or reject any or all of the Deliverables within such [*] day
period. Any rejection of a Deliverable by AMD must be based on a failure
of the Deliverable to operate correctly, or meet a requirement set forth
in the applicable Software Requirement. If AMD provides written notice,
within the specified time-frame, of its decision to reject any or all of
the Deliverables and the basis for such rejection, then AMD may:
7.3.1 allow Award an additional amount of time in which to make such
corrections as AMD may deem appropriate, which additional amount
of time shall be at least [*] days from the receipt of notice of
AMD's rejection notice for the first submission of the
Deliverable; whereupon (i) the delivery date(s) shall be
adjusted accordingly, (ii) Award shall, within the additional
time given, make such corrections, at its own expense, as are
necessary to ensure the Deliverables meet in every material
respect the applicable Software Requirements and re-deliver the
Deliverables, and (iii) the testing provisions of Paragraph 7.2
above the acceptance provisions of this Section 7.3 shall apply
again to the previously rejected Deliverables;
7.3.2 provisionally accept the applicable Deliverables, whereupon the
applicable "payment" amount(s) associated with such Deliverables
shall be reduced by the Contract Coordinators to reflect the
failure of such Deliverables to meet in every material respect
the applicable Software Requirements, provided that such
reduction shall not exceed [*] of the applicable payment amount
associated with such Deliverables; or
7.3.3 immediately terminate the applicable Work Statement, or this
Agreement and all Work Statements, provided that such remedy
shall not be available for the first rejection of the
Deliverable. Such termination shall be pursuant to Section 15.3
and AMD shall be entitled to the remedies set forth in Section
15.3.3.
[*]
7.4 Updates. For a period of [*] following AMD's acceptance of a Developed
Product, Award will promptly notify AMD of (i) any information Award
becomes aware of regarding hardware and software bugs in the Developed
Product or the applicable AMD platform, and (ii) Updates provided to any
Award customer. Award shall provide such Updates to AMD within [*]
after such Updates were provided to any Award customer.
7.5 Final Delivery. Upon [*] following AMD's acceptance of a Developed
Product, Award will deliver to AMD one copy of the then current final
Object Code and Source Code of that Developed Product, as well as the
applicable build
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tools and environment, and relevant documentation, any and all of which
shall be considered a Deliverable under this Agreement.
8. LICENSING AND SUPPORT OF DEVELOPED PRODUCTS
8.1 Licensing. For a period of at least [*] following acceptance by
AMD of a Developed Product as provided in Section 7 above, Award agrees
to make that Developed Product and licenses for the use thereof
commercially available. [*].
8.2 Ongoing Support. For a period of at least [*] following AMD's
acceptance of a Developed Product as provided in Section 7 above, Award
agrees to provide, [*].
9. COMPENSATION
9.1 Payment for Deliverables. In consideration of the development work to be
performed by Award, AMD shall pay to Award an NRE as provided, if such a
charge is provided, in the applicable Work Statement. Payments shall be
made in accordance with the Payment Schedule set forth in the applicable
Work Statement.
9.2 Minimum [*] Purchases. [*] following the Effective Date of this
Agreement, AMD agrees to purchase from Award, and Award agrees to
provide, as AMD requests, goods, licenses, or services, or any
combination thereof, for a total amount of [*], respectively; or, in the
event that AMD does not make such minimum purchase in any such period,
then within [*], AMD shall pay to Award the applicable minimum purchase
amount less the total amount of purchases made by AMD in that period.
Such payments by AMD applicable to [*]
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[*] Any and all purchases referenced in this Section may be pursuant to
Work Statements issued under this Agreement, or may be pursuant to
supplemental agreements, if any, between Award and AMD, the terms and
conditions of which the parties agree to negotiate in good faith.
9.3 Primary Supplier. During the term of this Agreement, AMD agrees to use
Award as its primary supplier of BIOS development products and services
for the K86 baseline reference platform designs and production-ready
platform designs, for desktop and server applications, that AMD develops
for its K86 microprocessor customers, except in such instances where a
customer specifically requests another BIOS supplier. For the purposes
of this Agreement, using Award as AMD's primary supplier shall mean the
following: In the event that AMD submits a request for proposal for the
purchase or development of any BIOS development product or service not
already provided by Award, it shall so notify Award in writing and shall
give Award at least [*] to respond with a proposal for such products or
services. If AMD, in its reasonable judgment, determines that the terms
offered by Award for the products or performance of such services are
comparable or more favorable than the terms offered by other providers,
AMD shall purchase such products or services from Award. If AMD
determines that the terms offered by any other provider are more
favorable than those of Award, AMD shall offer Award the opportunity to
match such terms. If Award responds within [*] with a proposal that AMD,
in its reasonable judgment, determines matches such terms, then AMD
shall purchase such products or services from Award; otherwise, AMD
shall be free to purchase such products or services from such other
provider. In addition, where deemed appropriate by AMD, AMD agrees to
recommend Award as a provider of BIOS-related products and services for
the K86 platforms to its customers. This Section 9.3 shall not apply to
production platforms sold by or for AMD, or in any instance where the
performance under this Section would constitute a breach by AMD of a
pre-existing agreement with any third party.
9.4 Expenses. Award shall bear all of its own expenses arising from its
performance of its obligations under this Agreement, including without
limitation, expenses for facilities, work spaces, utilities, management,
employees, supplies, and the like. AMD agrees to reimburse Award for
travel to and from AMD's facilities, lodging and meal expenses
reasonably incurred by Award in the performance of services hereunder,
provided however, that Award must obtain prior written approval from AMD
for such expenditures.
9.5 Invoicing and Payment. Award shall submit invoices to AMD for payment
for Deliverables or milestones at such time or times as payment becomes
due under this Agreement. Invoices shall be net [*] and shall be
addressed to AMD's Contract Coordinator; provided, however, that AMD
shall not be
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obligated to pay any amount for any Deliverable until such Deliverable
has been accepted by AMD pursuant to Section 7.3 above.
10. OWNERSHIP OF DELIVERABLES AND RIGHTS OF PARTIES
10.1 Ownership by Award. Subject to the licenses granted in Sections 10.2 and
10.3, Award shall retain all right, title, and interest in and to all
Deliverables and all Developed Products, and all Intellectual Property
Rights therein, provided, however, that AMD shall retain all right,
title, and interest in and to any and all information that it provides
to Award, and Intellectual Property Rights therein.
10.2 License for Deliverables. Award hereby grants to AMD a [*] license to
use, execute, reproduce, modify, and create derivative works of the
Deliverables, in Source Code and Object Code, [*]. The license granted
in this Subsection 10.2 shall [*].
10.3 License for Developed Product. For each Developed Product, Award hereby
grants to AMD a [*] license to make [*] of the Developed Product, in
Object Code only, for use with the corresponding platform, and to
distribute such copies in connection with the corresponding platform,
provided, however, that the corresponding Work Statement may provide for
a lesser or greater number of copies AMD is licensed to make and
distribute. In making copies of such licensed Developed Products as
permitted under this Agreement, AMD shall reproduce and include on such
copies (including any media embodying such copies) all proprietary
legends that appear on the original copies that Award shall provide to
AMD. The license granted in this Subsection 10.3 shall [*].
10.4 License Assurance in the Event of Bankruptcy. In the event Award shall
suffer an insolvency, and either Award, as a debtor-in-possession, or
the trustee in a case under the Bankruptcy Code, shall reject this
Agreement including any Work Statements as permitted in the Bankruptcy
Code, then AMD may elect to retain its rights (including all licenses)
under this Agreement to the maximum extent provided in Section 365(n) of
the Bankruptcy Code.
10.5 Limitation. Except as expressly set forth in this Section 10, no rights
or licenses are granted, whether expressly, by implication, or by
estoppel, under any Intellectual Property Rights owned or controlled by
either party. Furthermore, without limiting the foregoing, and
notwithstanding Section 10.1, Award acknowledges that it receives no
right or license, expressly, implied or by estoppel to any AMD
Intellectual Property Rights, process technology, microprocessor
technology, system logic, or platform design.
10.6 Third Party Intellectual Property Rights. Unless AMD gives its prior
written consent, Award shall not incorporate any third party
Intellectual Property Rights into the Deliverables and shall not use any
third party Intellectual Property Rights
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with the Deliverables in a manner which would restrict the use of the
Deliverables by AMD or AMD customers as contemplated under this
Agreement, or would require AMD or AMD customers to pay a royalty for
such use.
10.7 Affiliates. The licenses in Sections 10.2 and 10.3 shall apply only to
such Affiliates which agree with Advanced Micro Devices, Inc. ("AMD
Inc.") in writing to be bound by the terms and conditions relevant to
such licenses imposed on AMD, Inc. hereunder, and any breach of any
rights granted under this Agreement by any such Affiliate shall be
deemed a breach by AMD, Inc.
11. REPRESENTATIONS AND WARRANTIES
11.1 Award's Representations and Warranties. Award represents and warrants to
AMD that (i) Award has good title to the Deliverables; (ii) the services
provided by Award hereunder, and the Deliverables and their use by AMD
as is permitted under this Agreement, will not infringe, directly or
indirectly, any copyrights or trade secrets of any third party, (iii)
Award shall be the sole author or a licensee of all works developed
hereunder, and (iv) Award has and will have full and sufficient right to
assign or grant the rights or licenses granted in the Deliverables
pursuant to this Agreement.
11.2 Authority and General Warranties. Each party represents to the other
that it is duly existing; that it has full power and authority to enter
into this Agreement; that this Agreement does not and will not interfere
with any other agreement to which it is a party; that it will not enter
into any agreement the execution or performance of which would violate
or interfere with this Agreement; and that it is not presently subject
to a voluntary or involuntary petition for bankruptcy and does not
contemplate filing any such petition.
11.3 NO OTHER WARRANTIES. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN
THIS AGREEMENT, NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE
MADE WITH RESPECT TO THE DELIVERABLES OR DEVELOPED PRODUCTS, INCLUDING
BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
11.4 No Obligation Regarding Microprocessors, Platforms. Nothing in this
Agreement or any Work Statement shall be deemed to obligate AMD to
develop, manufacture, or sell any K86 microprocessor or platform, not to
do so according to any particular schedule.
11.5 Market Size. Both parties acknowledge that each is relying solely on its
own estimate of the market for its respective products, including but
not limited to Developed Products, and that no representations or
warranties, expressed or implied, have been made by either party
regarding the size of such market or the amount of profit or revenue
that either party might expect to receive for such products.
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12. [*]
12.1 [*]
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13. LIMITATION OF LIABILITY
13.1 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, INCLUDING ANY WORK STATEMENTS, IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR
EXEMPLARY DAMAGES OF ANY KIND ARISING FROM USE OF THE DELIVERABLES,
DEVELOPED PRODUCT, OR FROM THE WORK PERFORMED OR INFORMATION DISCLOSED
TO THE OTHER PARTY UNDER THIS AGREEMENT, OR ANY WORK STATEMENT.
13.2 Cumulative Liability. IN NO EVENT SHALL AWARD'S AGGREGATE CUMULATIVE
LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY AMD TO
AWARD UNDER THIS AGREEMENT, [*]. THIS LIMITATION OF LIABILITY SHALL
APPLY TO ANY CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, OR
UNDER ANY THEORY. THE FOREGOING LIMITATION OF LIABILITY IS INDEPENDENT
OF ANY EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL
ASPECT OF THE AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS SET
FORTH IN THE AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
14. CONFIDENTIALITY
14.1 Obligation of Confidence. Each party agrees to (i) maintain the
confidentiality of the other party's Proprietary Information so as to
prevent its unauthorized use, dissemination and disclosure, and (ii) not
disclose the specific terms of this Agreement or any of the negotiations
between the parties related to this Agreement, without the express
written consent of the other party. Notwithstanding the foregoing,
either party may (i) disclose the other party's Proprietary Information
or the specific terms of this Agreement, to the extent required by a
court or other governmental agency having authority to require such
disclosure (provided, however, that each party will limit such
disclosure to only that which is reasonably necessary to comply with the
orders of any such court or governmental authority); and (ii) make such
disclosure to the extent required by any law, statute, rule, regulation,
or order of any court, governmental agency or self regulating
organization, including without limitation, applicable securities laws
or the rules and regulations of the Securities and Exchange Commission
(the "SEC"). Each party agrees to immediately notify the other party of
any breach of the provisions of confidentiality under this Section 14 of
which it becomes aware and to cooperate with the nonbreaching party in
curing or minimizing the effects of such breach.
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14.2 Method of Protection. To protect the other party's Proprietary
Information against unauthorized use, dissemination, and disclosure,
each party agrees to use protective measures no less stringent than
those used by that party within its own business to protect its own
Proprietary Information, which protective measures shall under all
circumstances be at least reasonable measures designed to ensure the
continued confidentiality of the Proprietary Information of the other
party.
14.3 Duration. The parties will maintain the confidentiality of Proprietary
Information during the term of this Agreement and for [*] thereafter.
14.4 Non-solicitation. During the term of this Agreement and for [*]
following the termination or expiration thereof, AMD agrees that AMD's
employees who are engaged in any way in the development under this
Agreement or who, in connection with this Agreement, have contact with
Award's employees engaged in the development under this Agreement, shall
not, directly or indirectly, solicit or seek to employ, or cause
another, such as AMD's employment department or a recruiter, to solicit
or seek to employ, any employee of Award who has provided services to
AMD in connection with such development efforts pursuant to this
Agreement. During the term of this Agreement and for [*] following
the termination or expiration thereof, Award agrees not to solicit or
seek to employ any employee of AMD associated with the development under
this Agreement.
15. TERM; TERMINATION
15.1 Term. This Agreement will commence as of the Effective Date and will
continue for [*], unless otherwise terminated as provided herein;
provided, however, that all Work Statements issued before, and
outstanding at the time of, such termination or expiration shall remain
in effect with respect to such Work Statement, until such Work
Statements are themselves terminated and/or performance thereunder is
completed. Termination of a Work Statement shall not automatically
result in the termination of any other Work Statement or this Agreement.
15.2 [*]
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[*]
15.3 Termination for Cause.
15.3.1 Right to Terminate. Either party has the right to terminate
any Work Statement, or this Agreement and all Work Statements,
at any time if:
(a) the other party is in material breach of any warranty,
term, condition or covenant of this Agreement or any Work
Statement and fails to cure that breach within [*], or the
breaching party fails to provide the non-breaching party
assurance that the breach will be cured within a longer
period of time which is acceptable to the non-breaching
party after receiving notice of that breach and the
non-breaching party's intention to terminate; or
(b) the other party (i) becomes insolvent; (ii) fails to pay
its debts or perform its obligations in the ordinary course
of business as they mature; (iii) admits in writing its
insolvency or inability to pay its debts or perform its
obligations as they mature; or (iv) becomes the subject of
any voluntary or involuntary proceeding in bankruptcy,
liquidation, dissolution, receivership, attachment or
composition or general assignment for the benefit of
creditors; provided that if such condition is assumed
involuntarily it has not been dismissed with prejudice
within [*] after it begins.
15.3.2. Effective Date of Termination. Termination will become
effective under Section 15.3.1(a) automatically upon expiration
of the cure period in the absence of a cure, and under Section
15.3.1(b) immediately upon the non-terminating party's receipt
of a notice of termination at any time after the specified event
or the failure of the specified proceeding to be timely
dismissed.
15.3.3 Effect of Termination for Cause.
(a) If AMD terminates this Agreement and/or any Work
Statement for cause, [*]
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[*]
(b) If Award terminates this Agreement and/or any Work
Statement for cause, [*]. Furthermore, in the case of
termination by Award for non-payment by AMD, Award will be
entitled to retain the hardware and software delivered by AMD
hereunder against payment owing by AMD, but shall be required to
return to AMD such hardware and software and all accompanying
documentation delivered to Award therewith upon payment by AMD
to Award of all payments due.
15.4 Survival. The provisions of Sections 10, 11, 12, 13, 14 and 15 shall
survive any termination or the natural expiration of this Agreement, and
Sections 7.4, 7.5, and 8 shall also survive the natural expiration of
this Agreement.
16. MISCELLANEOUS
16.1 Right to Develop Independently. Each party agrees that the other may
acquire, license, independently develop, manufacture or distribute, or
have others independently develop, manufacture or distribute for them,
similar technology performing the same or similar functions as the
technologies contemplated by this Agreement, or to market and distribute
such similar technologies; provided that any such technology is
developed without direct reference to the other party's Proprietary
Information, specifications, Code, or other documentation disclosed to
the other under this Agreement.
16.2 Advertising. Without the prior written consent of AMD, Award may not use
any trademarks, service marks, trade names, logos or other commercial or
product designations of AMD, including, but not limited to, use in
connection with any promotions, advertisements or exhibitions.
Notwithstanding the foregoing, AMD agrees to the use of its name in any
registration statement, prospectus or other filing with the SEC.
16.3 Relief from Obligations. Neither party will be deemed in default of this
Agreement to the extent that performance of its obligations or attempts
to cure any breach are delayed or prevented by reason of any act of God,
fire, natural disaster, accident, act of government, shortages of
material or supplies or any other cause beyond the control of such party
("Force Majeure") provided that such party gives the other
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party written notice thereof promptly and, in any event, within thirty
(30) days of discovery thereof and uses good faith efforts to so perform
or cure. In the event of such a Force Majeure, the time for performance
or cure will be extended for a period equal to the duration of the Force
Majeure but not in excess of six (6) months.
16.4 Relationship of Parties. Award is an independent contractor and neither
Award nor Award's employees, consultants, contractors or agents are
agents, employees or joint ventures of AMD, nor do they have any
authority whatsoever to bind AMD by contract or otherwise. They will not
represent to the contrary, either expressly, implicitly, by appearance
or otherwise. Award will determine, in Award's sole discretion, the
manner and means by which the services are accomplished, subject to the
express condition that Award will at all times comply with applicable
law.
16.5 Assignment. The rights and liabilities of the parties under this
Agreement will bind and inure to the benefit of the parties' respective
successors, executors and administrators, as the case may be; provided
that, neither party may assign this Agreement or its obligations
hereunder in whole or in part without the prior written approval of the
other party except in the case of a sale of all or substantially all of
the assets of such party or a merger in which such party is not a
surviving entity. Notwithstanding the above, [*]. Any attempted
assignment or delegation without such consent will be void.
16.6 Governing Law. This Agreement is deemed entered into in California and
shall in all respects be governed by and construed under the laws of the
State of California as such laws are applied to agreements between
California residents entered into and performed entirely within
California.
16.7 Severability. If any provision of this Agreement, or the application
thereof, shall for any reason and to any extent be determined by a court
of competent jurisdiction to be invalid or unenforceable under
applicable law, the remaining provisions of this Agreement shall be
interpreted so as best to reasonable effect the intent of the parties.
The parties further agree to replace any such invalid or unenforceable
provisions with valid and enforceable provisions designed to achieve, to
the extent possible, the business purposes and intent of such invalid
and unenforceable provisions.
16.8 Entire Agreement. Each Work Statement, together with this Agreement and
the terms and conditions of AMD's purchase order attached to such Work
Statement, constitutes the entire understanding and agreement of the
parties with respect to the work performed under, and all Deliverables
and Developed Products applicable to, that Work Statement, and
supersedes all prior and contemporaneous
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understanding and agreements, whether written or oral, with respect to
such subject matter. The terms and conditions of AMD's purchase order
attached to a Work Statement are hereby incorporated by reference. Where
there is any conflict or inconsistency with the express terms of the
Agreement, the Work Statement shall supersede any conflicting terms and
conditions of this Technology Development and Support Agreement, and the
terms of this Technology Development and Support Agreement shall
supersede any conflicting terms and conditions of the AMD purchase
order.
16.9 Amendments, Modifications and Waivers. No delay or failure by either
party to exercise or enforce at any time any right or provision of this
Agreement will be considered a waiver thereof or of such party's right
thereafter to exercise or enforce each and every right and provision of
this Agreement. Without limiting the foregoing sentence, neither
notification by Award (including but not limited to notifications as
provided in Sections 5.1, 6.1, and 7.2), nor delay or inaction by AMD,
with respect to Award's inability to meet the requirements of a Work
Statement shall constitute a waiver or impairment of any rights or
remedies of AMD. No single waiver will constitute a continuing or
subsequent waiver. No waiver, modification or amendment of any provision
of this Agreement will be effective unless it is in writing and signed
by the parties, but it need not be supported by consideration.
16.10 Attorneys' Fees. If any dispute between the parties arising out of the
performance, non-performance or alleged breach of this Agreement is
litigated in a court of competent jurisdiction, the prevailing party
shall be entitled to recover its reasonable attorneys' fees in addition
to any other relief to which it may be entitled.
16.11 Equitable Relief. Because the services contracted for hereunder are
personal and unique, and because both Award and AMD will have access to
and become acquainted with confidential and proprietary information of
each other, the unauthorized use or disclosure of which would cause
irreparable harm and significant injury which would be difficult to
ascertain and which would not be compensable by damages alone, each
party agrees that the other party will have the right to enforce this
Agreement and any of its provisions by injunction, specific performance
or other equitable relief without prejudice to any other rights and
remedies that either party may have for breach of this Agreement.
16.12 Headings and References. The headings and captions used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. All references in this
Agreement to sections, paragraphs, exhibits and schedules shall, unless
otherwise provided, refer to sections and paragraphs hereof and
exhibits and schedules attached hereto, all of which are incorporated
herein by this reference.
16.13 Construction. This Agreement has been negotiated by the parties and
their respective counsel. This Agreement will be fairly interpreted in
accordance with
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its terms and without any strict construction in favor of or against
either party. Any ambiguity will not be interpreted against the drafting
party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
ADVANCED MICRO DEVICES, INC. AWARD SOFTWARE INT'L, INC.
By: /s/ S. Atia Raza By: /s/ George C. Huang
----------------------------- -----------------------------
Printed Printed
Name: S. Atia Raza Name: George C. Huang
--------------------------- ---------------------------
Title: Chief Technical Officer Title: Chairman CEO
-------------------------- --------------------------
Date: 6-28-96 Date: June 28, 1996
--------------------------- ---------------------------
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EXHIBIT A
INITIAL WORK STATEMENT
This Work Statement is entered into this 28th day of June, 1996 (the "Effective
Date"), by and between Award Software International, Inc., a California
corporation ("Award"), having its corporate offices at 777 East Midddlefield
Road, Mountain View, California, 94043, and Advanced Micro Devices, Inc., a
Delaware corporation ("AMD"), having its corporate offices at One AMD Place,
P.O. Box 3453, Sunnyvale, California, 94088.
For and in consideration of the mutual covenants set forth herein and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
1. This Work Statement is governed by the terms and conditions of the
Technology Development and Support Agreement, dated the 28th day of June, 1996
between Award and AMD.
2. Statement of Work
(a) Description of work to be performed. Award shall perform the
services as described in the attached Proposed Software Requirements Document
("SRD"), which is hereby incorporated by reference.
(b) Delivery Schedule. The Delivery Schedule is as provided in the
section of the SRD titled Deliverables: Delivery Schedule.
(c) Deliverables. The Deliverables Award is to provide AMD under
this Work Statement are listed in the section of the SRD titled Deliverables;
Delivery Schedule.
(d) Payment and Payment Schedule. As provided in the sections of
the SRD titled Compensation, and NRE Payment Schedule.
(e) Description and amount of engineer training and consultation to
be provided. As provided in the section of the SRD titled Additional Support
Requirements.
(f) Software Requirements. As provided in the sections of the SRD
titled [*] H/W Components and Requirements for Award Firmware Deliverables, and
Deliverables; Delivery Schedule.
(g) Testing Criteria. As provided in the section of the SRD titled
Testing Criteria For Deliverables.
(h) AMD Resources. As provided in the section of the SRD titled
AMD Platform Resources.
(i) Project Coordinators. As provided in the section of the SRD
titled Project Coordination.
3. Additional Services. Award shall also provide the additional services
as outlined in the section of the SRD titled Additional Support Requirements.
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IN WITNESS WHEREOF, the parties hereto have executed this Work
Statement as of the Effective Date.
ADVANCED MICRO DEVICES, INC. AWARD SOFTWARE INT'L, INC.
By: /s/ S. ATIRO RAZA By: /s/ GEORGE C. HUANG
------------------------------ ------------------------------
Printed Printed
Name: S. Atiro Raza Name: George C. Huang
---------------------------- ----------------------------
Title: Chief Technical Officer Title: Chairman CEO
--------------------------- ---------------------------
Date: 6-28-96 Date: June 28, 1996
---------------------------- ----------------------------
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[AMD LOGO]
PROPOSED SOFTWARE
REQUIREMENTS
AWARD FIRMWARE DEVELOPMENT
FOR
[*] PROJECT
REVISION 1.28
06/26/96
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Advanced Micro Devices CONFIDENTIAL 1
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INTRODUCTION
This document includes details regarding the [*] platform and deliverables
needed from Award to successfully meet the platform goals. This document and
Award's response, if acceptable to AMD, will be incorporated into a Work
Statement covering the [*] Platform, in accordance with the Technology
Development and Support Agreement between Award and AMD. This proposal
identifies Award as the primary BIOS developer, AMD as the primary hardware
developer with resource at AMD to provide interface, documentation, acceptance
qualification, and bug reporting/closure tracking.
[*] H/W COMPONENTS
[*] is a single [*] form factor board [*]. [*] The following feature list
outlines the hardware features on the boards, [*], that must be supported by
Award's BIOS.
[*]
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Advanced Micro Devices CONFIDENTIAL
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[*]
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AMD PLATFORM RESOURCES
AMD will provide Award with the following resources:
o [*] complete [*] platforms for development purposes.
o [*] complete [*] platforms for Quality Assurance purposes.
REQUIREMENTS FOR AWARD FIRMWARE DELIVERABLES
Standard [*] System BIOS(es) supporting the following features:
[*]
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Advanced Micro Devices CONFIDENTIAL 3
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[*]
COMPENSATION
In consideration of the development work to be performed by Award, AMD agrees to
pay Award a non-recurring engineering charge of [*] according to the schedule
shown below. [*]
DELIVERABLES: DELIVERY SCHEDULE
[*] Support Milestones and Schedule
o Software requirements documented [*]
o Work Statement generated [*]
o Work Statement mutually agreed upon [*]
o Initial BIOS available [*]
o BIOS source code Included with each BIOS delivery
Initial BIOS should include support for [*] processors. Support should
also be present for [*] utilities as defined in the Award firmware
deliverables section and will be used for basic bring up [*]. Testing is
not possible until hardware is delivered to Award.
o [*] available to Award [*]
o Alpha BIOS available [*]
Alpha BIOS should have all functionality completed to work with [*]
processors. Functionality is defined as all capabilities as defined in
the Award firmware deliverables section. [*]
o Alpha bug action list complete [*]
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Advanced Micro Devices CONFIDENTIAL 4
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o Beta BIOS available [*]
Award must provide internal Quality Assurance on the Beta BIOS before
delivery. Available [ * ] modules should be included.
[*] Support Milestones and Schedule
o Initial [*] Software Development Guide Award [*]
o Complete [*] Software Development Guide to Award [*]
o Initial [*] samples to Award [*]
o Initial [*] BIOS available [*]
Initial [*] BIOS should leverage from Beta [*] BIOS and target
demonstration functionality for [*]. Testing is not possible until [*]
samples are delivered to Award.
o Alpha [*] BIOS available [*]
Alpha BIOS should have all functionality completed to work with [*]
processors. Functionality is defined as all capabilities as defined
in the Award firmware deliverables section.
o Beta [*] BIOS available [*]
Award must provide internal Quality Assurance on the Beta BIOS before
delivery.
o Final [*] BIOS available [*]
Final BIOS, in addition to features supported in the beta release,
should include the following: [*]. It should be robust, bug-free, and
production worthy.
NRE PAYMENT SCHEDULE
[*]
ADDITIONAL SUPPORT REQUIREMENTS
o Award shall provide AMD with a quote covering delivery and installation
of an on-site [*].
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Advanced Micro Devices CONFIDENTIAL 5
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o Delivery of Deliverables to AMD shall occur via electronic means (email,
BBS, or [*]).
o AMD BIOS training--Award will provide their standard training on BIOS
source code for up to [*] AMD engineers. This training will cover the
following topics:
[*]
o Award shall process the Developed Product and Updates through Award's
standard BIOS Quality Assurance process.
o Award shall optimize BIOS performance based on AMD's test and evaluation
results prior to delivery of Final BIOS. If such optimizations require
modifications to the Software Requirements Document, such modifications
shall be handled as provided in Section 3.8 of the Agreement.
o
TESTING CRITERIA FOR DELIVERABLES
Alpha, beta and final versions of the Award BIOS should demonstrate the
following capabilities:
[*]
PROJECT COORDINATION
o Project Coordinators
Award: David J. Wippich
777 East Middlefield Road
Mountain View, CA 94043-4023
Phone: (415) 968-4433
FAX: (415) 968-0274
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Advanced Micro Services CONFIDENTIAL 6
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AMD: Scott Swanstrom
5900 E. Ben White Blvd.
Mailstop 592
Austin, TX 78741
Phone: (512) 602-5064
FAX: (512) 602-7807
o Technical Coordinators
Award: Jim Busse
777 East Middlefield
Mountain View, CA 94043-4023
Phone: (415) 968-4433
FAX: (415) 968-0274
AMD: Michael T. Wisor
5900 E. Ben White Blvd.
Mailstop 522
Austin, TX 78741
Phone: (512) 602-4044
FAX: (512) 602-4490
Advanced Micro Devices CONFIDENTIAL 7