LSI LOGIC CORPORATION
ASIC DESIGN AND DEVELOPMENT AGREEMENT
This ASIC DESIGN AND DEVELOPMENT AGREEMENT (referred to herein, together
with all exhibits and addenda hereto and together with any and all orders placed
hereunder, as the "Agreement") is entered into by and between LSI LOGIC
CORPORATION ("LSI") of 1551 McCarthy Blvd., Milpitas, CA 95035 (attn: General
Counsel) (Fax: (408) 433-6896) and InterDigital Communications Corporation
("Customer"), of 833 Northern Blvd., Great Neck, NY 11021 (attn: ____________)
(Fax: (___) ______-_______) and effective as of________________, 1996
("Effective Date").
1 SCOPE
Customer and LSI intend to develop an application specific integrated
circuit ("ASIC") products. In so doing LSI will provide Customer with
engineering support and assistance and Customer will cooperate with LSI in the
use of LSI's materials and information. This Agreement sets forth the common
terms and conditions pursuant to which such ASIC products will be designed,
developed and prototyped by LSI for Customer. This Agreement does not, however,
govern the terms and conditions by which LSI may license to Customer LSI Design
Tools, defined below, nor the terms and conditions by which LSI may grant
Customer access to LSI CoreWare(TM). The ASIC subject to this Agreement is the
Product, defined below at Section 2.7. New Products may be added from time to
time by written amendment to this Agreement signed by authorized representatives
of both parties.
2 DEFINITIONS
The following terms shall have the meanings as defined below:
2.1 "Customer Specifications": Any information supplied by Customer,
including, but not limited to, software, schematics, netlists, microcode,
designs or techniques, that is accepted by LSI and is utilized in the design of
or otherwise incorporated into a Product.
2.2 "ECR": An engineering completion report in form and content as used by
LSI to document completion of the pre-layout simulation milestone of the SOW and
to record Customer's acknowledgment of satisfactory completion of all work
through that milestone. ECR is also used to designate the milestone occurring at
signoff of such report.
2.3 "LSI Design Tools": Any LSI computer aided design software (including
libraries) utilized
299
1
by LSI for the purpose of the design or test of ASIC designs, as updated and
enhanced from time to time. LSI Design Tools include, among others, C-MDE(TM)
design tools, Silicon 1076(TM) design tools, and the Compacted Array(TM),
Embedded Array(R), cell-based, and rad-hard families of libraries.
2.4 "CDR": A performance approval report in a form regularly used by LSI to
document the critical design review milestone of the SOW (at completion of the
post-layout simulation) and to record Customer's acknowledgment of satisfactory
completion of all work through that milestone. CDR is also used to designate the
milestone occurring at signoff of such report.
2.5 "NRE": Non-recurring engineering services to be rendered by LSI for
Customer in connection with development of a Product pursuant to the SOW
relating to that Product.
2.6 "PDR": Preliminary design review, the initial milestone following
acceptance of the purchase order for NRE services.
2.7 "Product(s)": Any ASIC device described in Exhibit A hereto (as may be
amended by written agreement of the Parties) that is designed or to be designed
for verification on LSI Design Tools and manufactured and tested by LSI.
Products include prototypes and pre-production units.
2.8 "SOW": A statement of work, attached hereto as Exhibit B (as may be
amended by written agreement of the Parties), including milestones, that
identifies the design activities in which the parties intend to engage for the
purpose of developing a particular Product.
3 PRODUCT DESIGN AND APPROVAL
3.1 NRE Services. Subject to the terms and conditions of this Agreement,
LSI will exercise reasonable diligence in performing the design activities as
set forth in that SOW which is applicable to each Product. Customer will assist
and cooperate with LSI in accordance with this SOW.
3.2 Design and Development Operating Rules. Any data relating to a Product
design that Customer is to furnish to LSI must be compatible with LSI Design
Tools, by which LSI will verify all design and engineering work. All design
milestone and prototype delivery schedules are estimates only. The sign-off of
LSI's ECR and of its CDR by Customer's responsible managing engineer or by any
other authorized employee of Customer shall serve as conclusive expressions of
Customer's acceptance of successful completion of those respective development
milestones.
3.3 Design Changes. Customer may request changes to any Product design
during the course of the SOW. Upon receipt by LSI of any such request made by
Customer in writing, LSI shall promptly inform Customer of the affect on the
SOW, the estimated completion of the design work to incorporate any requested
changes and the increase, if any, in the price for such Product. LSI may,
however,
299
2
continue work without regard to the requested change until LSI and Customer have
agreed in writing to adjustment in price and estimated completion date terms,
unless Customer specifically notifies LSI in writing to halt work.
3.4 Prototypes. Upon completion of the SOW activities, LSI shall deliver to
Customer ten (10) prototype devices of each Product ("Prototypes"). Customer may
for a fee order additional Prototypes at any time until five (5) working days
prior to CDR signoff. LSI shall use reasonable efforts to deliver these devices
within two (2) weeks of initial estimated Prototype shipment date.
3.5 Price and Payment. With respect to each Product, in consideration for
the NRE services and ten (10) prototype units as above-described, Customer shall
pay LSI the "Total NRE Price" in the amount set forth in Exhibit C hereto
applicable to such Product as well as such other sums for special services as
are separately listed or referenced in Exhibit C. Milestone amounts per the
schedule set forth in Exhibit C shall accrue and be invoiced at the applicable
milestones. Payment shall be due thirty (30) days after invoice date, subject to
approval of Customer by LSI's Credit Department; provided, however, that LSI's
Credit Department may require different terms at any time that Customer is
fifteen (15) days late in making a payment on an invoice or has filed against it
a petition in bankruptcy or receivership.
4 PRODUCTION
4.1 Purchase and Sale of Production Units. LSI shall have no obligation to
manufacture or deliver any production units (except for Prototypes and units
sold under a separate written Risk/Pre-Production Agreement between the parties)
unless and until: (i) Customer has delivered to LSI completed standard LSI
Prototype Approval and Production Release Authorization forms for the Product
signed by an authorized representative of Customer, and (ii) Customer and LSI
have agreed upon terms regarding quantity, price, and delivery (either in this
Agreement, by addendum to it or otherwise), Customer has issued a written
purchase order consistent with such agreed terms, and (iii) LSI has acknowledged
and accepted the purchase order in a signed writing. LSI agrees that it will not
reject any such purchase orders, except for reasonable business considerations.
4.2 Price Subject to Article 4.3, LSI agrees to sell production units to
Customer for volume purchases to be delivered during 1996 as set forth in
Exhibit C. The prices for deliveries during 1997 and beyond are conditional on
the following: In the event of significant increases or decreases in the market
price of metals, fuels, raw materials, equipment and other production costs, LSI
shall have the right and Customer will have the obligation to renegotiate in
good faith the price of the goods hereunder not yet shipped, and if agreement is
not reached, either party shall have the right to cancel the Purchase Order
without liability.
4.3 Commercial Production LSI agrees that for a period of five (5) years
from the delivery of the first production unit, it will sell production
quantities of the Products to Customer as set forth herein.
299
3
5 PRODUCT ACCEPTANCE
5.1 Acceptance. Customer shall accept any Prototype ordered by it that
conforms to the specifications and the test parameters contained or incorporated
in the applicable ECR and CDR. Failure by Customer to give written notice of
rejection within sixty (60) days of shipment shall be conclusively deemed to be
acceptance following inspection, but shall not constitute a waiver of latent
defects. Customer recognizes that its acceptance of Prototypes greater than 30
days into the acceptance period, may adversely impact the delivery schedule for
additional Prototypes, preproduction units, and production units. Consequently,
Customer agrees that LSI will not be considered in breach of this Agreement if
its failure to deliver preproduction units, production units and additional
Prototypes, is directly attributable to the length of time it has taken to
accept Prototypes. If Customer has not previously accepted the corresponding
Prototypes, LSI does not warrant that any additional Prototypes, preproduction
units, or production units will conform under normal use to the specifications
and test parameters in the ECR and CDR, although LSI does warrant that such
units will be free from defects in material and workmanship as set forth in
Article 10.
5.2 Non-conforming Product. Should Customer notify LSI within said sixty
(60) day period that the Product is non-conforming, then Customer, upon receipt
of authorization from LSI, shall promptly return the nonconforming Product to
LSI in accordance with the LSI material return procedure, accompanied by a
written explanation of the reasons for the return. Freight and handling costs
associated with returned Product that are later determined to be conforming,
shall be borne by the Customer.
6 TERMINATION FOR CONVENIENCE; RESCHEDULING RIGHTS.
6.1 Prior to Prototype Approval. Prior to the delivery of Prototypes,
Customer, for its own convenience, may notify LSI in writing of its intent to
terminate the design and engineering work under the applicable SOW for any
Product, whereupon LSI shall cease further work in connection with the Product
and invoice the Customer for the percentage of the total NRE price specified
below. Customer shall pay the invoiced amount within thirty (30) days of invoice
date. Customer may terminate work on any single Product without effect on the
work being performed with respect to any other Product.
Then the applicable
If notice of termi- percentage of total
nation is given: NRE owing is:
---------------- -------------
a) After APO but before
commencement of work 5%
b) After commencement of
work but before PDR 20%
c) After PDR but before ECR 50%
d) After ECR but before CDR 80%
e) After CDR 100%
299
4
7 TERM AND TERMINATION
7.1 Termination for Default. The non-defaulting Party may give the
defaulting party notice of its intention to exercise its rights under this
Article 7.1 if the defaulting Party violates any material provision of this
Agreement. Unless the defaulting Party commences efforts to cure the default
within ten days of receiving the non-defaulting Party's notice, diligently and
continuously pursues such cure to completion and completes the cure within sixty
(60) days (excluding a default that is non-monetary), the non-defaulting Party
shall have the right at its option to: (a) suspend performance or payment, in
whole or in part, until such default is cured; (b) terminate the Agreement or
purchase orders placed under the Agreement, in whole or in part, or (c) employ a
combination of (a) and (b).
7.2 Insolvency. Should either Party: (a) become insolvent; (b) make an
assignment for the benefit of creditors; (c) file a petition in bankruptcy; (d)
institute any proceedings for liquidation or winding up; or (e) have filed
against it a petition in bankruptcy or receivership and fail within sixty (60)
days to obtain the dismissal of the same, then the other Party may, in addition
to other rights and remedies it may have, terminate the Agreement or any
purchase orders placed under the Agreement immediately by written notice.
7.3 Discontinued Designs. Subject to Article 4, LSI may at any time cease
production of a Product in a particular manufacturing process technology. After
the five year volume commitment in Article 4.3 expires, LSI may at any time
cease production of a Product, provided that it will notify Customer in advance
of discontinuing such Product to give the Customer an opportunity to make a
lifetime buy.
8 PROPERTY RIGHTS
8.1 Any information supplied by Customer, including, but not limited to,
software, schematics, netlists, microcode, designs or techniques ("Customer
Design") that is provided to LSI and concerns the design of or is otherwise
incorporated into a Product shall remain the property of Customer.
8.2 Subject to section 8.3, below, LSI will not use the Customer Design or
any customized ASIC netlist, database, test vectors, or tooling, generated
exclusively for the Product in the course of development, other than for the
manufacture of Products for Customer or its licensees with Customer's consent.
Customer acknowledges and agrees that place and route data, database tapes, mask
sets and other customized data relating to the Product contain proprietary
information of LSI as well as of Customer, and such materials shall, therefore,
be held at all times in LSI's custody. If so requested by the Customer, however,
LSI shall destroy any such materials produced for Customer and shall provide it
with certification of destruction.
299
5
8.3 LSI disclaims, and upon Customer request for LSI's then-standard fee
shall register with the United States Copyright Office in Customer's name, any
mask work rights in the customized interconnects between LSI-furnished library
elements embodied in the Product; PROVIDED, HOWEVER, that LSI or its licensors
shall retain and have all intellectual property rights (including, without
limitation, mask work rights) associated with any and all circuitry design
components and process technology furnished by LSI in connection with the
design, development or manufacture of the Product(s), including, but, not
limited to, (I) all base array layers, (ii) all LSI-licensed library elements
(including, without limitation, any megafunctions or macrocells), and (iii) all
LSI-furnished modifications of any such library elements.
8.4 If in the course of performance under this Agreement LSI discovers any
process, pattern, device or other invention, LSI shall be deemed the owner of
such invention. If in the course of designing or developing a Product Customer
discovers any process, pattern, device or other invention, LSI shall
automatically be granted a fully paid, perpetual worldwide license to use such
invention in connection with the manufacture of the Product by LSI for Customer.
In the event any such invention is jointly discovered by the parties, the
parties shall be deemed joint owners of such invention and shall have the right
to use and sublicense the same without accounting to each other.
9 INFRINGEMENT
9.1 Except as set forth in Section 9.3, below, and subject to the
conditions and limitations stated in this Agreement, LSI agrees at its expense
to defend and indemnify Customer from and against any liability, damages, cost,
and expense (including attorney's fees) arising out of any and all claims,
demands and actions ("Claims") arising out of or relating to any alleged
infringement of patents, copyrights, or mask work rights, owned by third parties
by any Product purchased by Customer from LSI, or for any alleged disclosure or
misuse by LSI of trade secrets of a third party in connection with the design or
production of any Product. In addition, LSI agrees to pay any money damages
awarded against Customer attributable solely to any such infringement,
disclosure or misuse. As a condition of such defense and indemnification
Customer shall give LSI prompt written notice of any such Claims, full authority
to defend and settle such Claims and all reasonable assistance to LSI (at LSI's
expense) as may be requested by LSI. If, as a result of a Claim, Customer
becomes enjoined from selling or using the Product, LSI shall, at its election,
(i ) procure for Customer the right to sell and use the Product, (ii) provide
Customer with replacement Product that is non- infringing and meets the same
functional specifications as the Product, or (iii) if LSI cannot procure such
rights or furnish such replacement Product on commercially reasonable terms,
then refund to Customer the full purchase price actually paid for the infringing
Product purchased from LSI that Customer is enjoined from disposing of. THIS
SECTION STATES THE ENTIRE LIABILITY OF LSI AND THE EXCLUSIVE REMEDY OF CUSTOMER
WITH RESPECT TO INFRINGEMENT. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 9.1,
ALL WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS,
STATUTORY, EXPRESS OR IMPLIED ARE HEREBY DISCLAIMED.
9.2 LSI shall only be required to indemnify Customer for Claims in the
following countries: 1) the
299
6
European Economic Community (EEC); 2) Japan; 3) the United States; 4) any
country to which LSI has shipped to or for Customer the particular integrated
circuit that is the subject of the Claim; and 5) any country to which LSI has
shipped commercial volumes of any ASIC during the twenty four (24) months
immediately prior to the date Customer gives written notice of a Claim to LSI.
In addition, the Parties agree to negotiate whether they will add additional
countries to this list as Customer's business expands.
9.3 LSI shall have no obligation to indemnify or hold Customer harmless
with respect to any Claim of infringement, disclosure or misuse of any
intellectual property rights arising out of or relating to either (i) the
combination of one or more LSI library elements with any other circuitry in the
design of any Product, (ii) the combination or incorporation of any Product or
of elements of any Product supplied by LSI with any other product, end item, or
subassembly, or (iii) use or incorporation in any Product of any design,
technique or specification furnished by Customer. Furthermore, Customer will
defend and indemnify LSI from and against any liability, damages, cost or
expense (including attorney's fees) arising out of any such Claim asserted
against LSI arising out of or relating to any act or condition described in
clauses ( I), (ii) or (iii) of the preceding sentence; provided, however, that
such duty of indemnity shall conditioned upon LSI giving Customer prompt written
notice of any such Claims, full authority to defend and settle such Claims and
all reasonable assistance to Customer (at Customer's expense) as may be
requested by Customer.
10 LIMITED WARRANTY
10.1 Limited Warranty. LSI warrants that the Prototypes manufactured by LSI
will conform under normal use to the specifications and test parameters as
contained in the mutually agreed upon ECR and CDR as signed by both parties in
the course of development of the Product and will be free from defects in
material and workmanship under normal use and service for a period of one (1)
year from the date of shipment to Customer. LSI's obligations under this Limited
Warranty are limited to replacing or repairing or giving credit for, at LSI's
election, at its factory, any of the Products which shall, within one (1) year
after shipment, be returned to LSI, transportation charges prepaid, and which
are, after examination, disclosed to the satisfaction of LSI to be defective.
Any Product which has either been repaired or replaced by LSI under the terms of
the warranty provision of this agreement shall have warranty coverage for the
remaining period of time of the originally shipped Product.
10.2 Exclusions. This Limited Warranty does not apply to die or any other
Products which are not finished and fully encapsulated, or to Products which
have been repaired or altered except by LSI or which shall have been subjected
to misuse, negligence, or accident. PRODUCTS WHICH ARE NOT FINISHED AND FULLY
ENCAPSULATED ARE SOLD STRICTLY "AS IS".
10.3 Disclaimer. EXCEPT FOR THE LIMITED WARRANTY STATED IN SECTION 10.1,
ABOVE, ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, WITH RESPECT TO
ANY PRODUCT OR OTHER ITEMS DELIVERED HEREUNDER, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
ARE HEREBY DISCLAIMED. THE REMEDIES SET FORTH IN THIS SECTION 10 ARE
299
7
EXCLUSIVE. NO COURSE OF DEALING AND NO PRODUCT DESCRIPTION OR
SPECIFICATION SHALL BE DEEMED A WARRANTY WITH RESPECT TO ANY GOODS OR
INFORMATION DELIVERABLE BY LSI. NO INDIVIDUAL IS AUTHORIZED TO GIVE ANY
OTHER WARRANTY ON BEHALF OF LSI.
11 CONFIDENTIAL INFORMATION
11.1 Each party acknowledges that materials received from the other party
may be considered confidential and proprietary ("Confidential Information").
Each party agrees to maintain in confidence such Confidential Information which,
if disclosed by the other party in writing, is identified and marked as
confidential (or with words of similar import) at the time of its disclosure (or
which, if disclosed verbally, is designated confidential at the time of
disclosure and is summarized and identified as confidential in a writing
delivered to the receiving party on or before thirty (30) days after the
disclosure). Neither party shall disclose the other party's Confidential
Information to any other person or organization without the prior written
consent of the other party nor use such information for purposes other than
performance under this Agreement. Without limiting the foregoing, each party
shall protect such information from disclosure to others with at least the same
degree of care as such party exercises to protect its own information of similar
type and importance. The obligations of confidentiality and protection required
by this section shall survive the expiration, termination or cancellation of
this Agreement for a period of five (5) years, except that LSI's obligations
with respect to Customer Confidential Information embodied in the Customer
Design and any customized ASIC netlist, database, test vectors, or tooling
generated exclusively for a customized Product in the course of development
shall survive the expiration, termination or cancellation of this Agreement for
a period of twenty (20) years. Under no circumstances will the 20 year
protection provision be construed to apply to any pre-existing LSI information.
The obligation of confidentiality shall not apply or shall cease to apply to any
information that;
(a) was known to the receiving party prior to its receipt hereunder;
(b) is or becomes publicly available without breach of this Agreement;
(c) becomes known to the receiving party from a source other than the
disclosing party without breach of an obligation of confidentiality;
(d) is disclosed by the disclosing party to another without an obligation
of confidentiality; or
(e) is developed independently by employees of the receiving party not
having access to such information.
11.2 Either Party may disclose Confidential Information of the other
pursuant to court order on the condition that the originally disclosing party is
given a reasonable opportunity to object to such disclosure requirement to the
extent practicable or to obtain a protective order and the receiving party
limits its disclosure to the greatest extent reasonably practicable under the
circumstances. In addition, a receiving party may disclose the existence and
content of this Agreement as it reasonably determines to be required by
applicable state and federal laws and regulations, including those pertaining to
securities, provided that such party notifies the other party and makes
reasonable efforts to obtain confidential treatment if available.
299
8
11.3 LSI agrees that the contents of this Agreement (including any of the
schedules and exhibits hereto) and the contents of any purchase order issued by
Customer pursuant to this Agreement (including the Terms of Sale or any
successor agreement thereto) shall be deemed the Customer's Confidential
Information provided it is marked as set forth in Article 11.1. Customer agrees
that prior to disclosing the existence or contents of this Agreement or such
purchase orders to any third party to consult with LSI concerning the
nature and content of the disclosure.
12 FORCE MAJEURE
Neither Party shall have any liability for delays or failures in
performance of any obligation hereunder that are caused by any act or occurrence
that is beyond the reasonable control of such party, including but not limited
to fire, flood, earthquake or other natural disaster, shortages of materials,
labor disputes, war or civil disturbance, disruption of normal production, yield
failures, or interruption of transportation facilities. In any such event such
party's performance shall be excused for the time that any such event continues
to occur.
13 EXPORT CONTROL
Customer shall be responsible for ensuring that it complies with all laws
and regulations of the United States Government relating to the export from the
United States of technical information or technical data or products made using
technical information or technical data or Products received from LSI.
14 EXCLUSION OF CERTAIN DAMAGES
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT,
PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,
LOSS OF PROFITS), CAUSED BY ANY BREACH BY LSI OF ITS OBLIGATIONS ARISING OUT OF
OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), EVEN IF LSI HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS A MATERIAL CONDITION TO LSI
ENTERING INTO THIS AGREEMENT, WITHOUT WHICH LSI WOULD BE UNWILLING TO SELL THE
GOODS OR SERVICES COVERED HEREUNDER WITHOUT INCREASING THEIR PRICE.
15 LIFE SUPPORT; COMMERCIAL AVIATION
Products sold by LSI that are to be used in any equipment or application
that may reasonably be expected to perform a life support function or that are
to be used in commercial aviation equipment may require special treatment by
LSI. Accordingly, prior to commencement by Customer of any design
299
9
activity with respect to a Product intended for use in any medical life
support or commercial aviation application, Customer shall give written notice
of such intent to LSI. Failure by Customer to provide such prior written notice
is a material breach of this Agreement.
16 GENERAL
16.1 Assignment. Except for LSI's right to payment accruing hereunder,
neither party shall assign any of its rights or privileges hereunder without the
prior written consent of the other party other than to a successor in ownership
of all or substantially all of the assets of the assigning party, which
successor expressly assumes in writing the assignor's obligations hereunder.
16.2 Controlling Law. This Agreement shall be construed and interpreted in
accordance with the law of the State of California (except its choice of law
rules) as though made by two parties residing in California so as to be fully
performed within that State.
16.3 Waiver. No failure or delay on the part of either party in the
exercise of any right or privilege hereunder shall operate as a waiver thereof
or of the exercise of any right or privilege hereunder, nor shall any single or
partial exercise of any such right or privilege preclude other or further
exercise thereof or of any other right or privilege.
16.4 Notice. Any notice or claim provided for herein shall be in writing
and shall be given (I) by personal delivery, effective upon delivery, (ii) by
certified mail, return receipt requested, postage prepaid, addressed to the
address first stated above for the recipient, effective one (1) business day
after proper deposit in the mail, or (iii) by facsimile directed to the
facsimile number first indicated above for the recipient, but only if
accompanied by mailing of a copy in accordance with (ii) above, effective as of
the date of facsimile transmission.
16.5 Severability; Several Rights and Obligations. If any provision of this
Agreement is held to be ineffective, unenforceable or illegal for any reason,
such decision shall not effect the validity or enforcement of any or all of the
remaining portions thereof. If more than one Product is covered under this
Agreement, then the rights and obligations of the parties as to each such
Product shall be several and independent from those as to any other Product.
16.6 Other Rights. Nothing contained in this Agreement shall be construed
as conferring by implication, estoppel or otherwise upon either party or any
third party any license or other right except, solely as to the parties hereto,
the rights expressly granted hereunder.
16.7 Publicity. All publicity concerning the transactions contemplated by
this Agreement shall be jointly planned and coordinated by and between the
parties. Neither of the parties shall act unilaterally in this regard without
the prior written approval of the other party; however, this approval shall not
be unreasonably withheld.
299
10
16.8 Titles. Any titles included herein are for convenience only and are
not to be used in the interpretation of this Agreement.
16.9 Exhibits. The following Exhibits are attached hereto and incorporated
herein by this reference:
Exhibit A - Description of Products
Exhibit B - Statement of Work
Exhibit C - Pricing and Payment Schedule
The following Addenda described and initialed below are attached hereto and
incorporated herein by this reference:
___/___ Addendum __ - ____________________________
___/___ Addendum __ - ____________________________
___/___ Addendum __ - ____________________________
16.10 Integration; Modification. This Agreement together with the Exhibits
and Addenda hereto, embodies the final, complete and exclusive statement of the
terms of their agreement with respect to the subject matter hereof and
supersedes any prior or contemporaneous representations, descriptions, courses
of dealing or agreements as to such subject matter; PROVIDED, however, that
nothing herein shall supersede or affect any design tool license agreement
between the parties. No amendment or modification of this Agreement or any
Exhibit hereto shall be valid or binding upon the parties unless in writing and
signed by an officer of each party, and NO LSI EMPLOYEE OR REPRESENTATIVE HAS
ANY AUTHORITY OTHERWISE TO BIND LSI TO ANY OBLIGATION OR LIABILITY NOT EXPRESSLY
STATED HEREIN.
16.11 Limitation on Damages. CUSTOMER MAY NOT RECOVER DAMAGES FROM LSI
LOGIC IN CONNECTION WITH ANY "CLAIM" WITH RESPECT TO A PRODUCT IN AN AMOUNT IN
EXCESS OF THE GREATER OF ( I) $150,000.00 or (ii) TEN PERCENT (10%) OF THE
AGGREGATE CONSIDERATION PAID BY CUSTOMER TO LSI WITH RESPECT TO THE PRODUCT OVER
THE TWELVE (12) MONTH PERIOD PRECEDING ACCRUAL OF THE CLAIM. As used herein,
"CLAIM" shall mean one or more claims or causes of action (in contract or in
tort) arising out of any breach, or related breaches, of this Agreement (or
arising out of any act or omission, or related series of acts or omissions, by
LSI or its suppliers or contractors occurring in connection with this Agreement.
However, the foregoing liability limitation shall not apply to any claims for
intellectual property infringement for Prototypes and preproduction units under
Article 9. Moreover, the parties agree that this provision shall not be
construed to limit liability: a) for intellectual property infringement by
production units; or b) arising out of the sale of Products under a production
sales contract. The parties agree to negotiate whether and to what extent
intellectual property and general liability will be limited for production units
and/or under a production sales contract.
299
11
16.12 Arbitration. Any dispute relating to the enforceability,
interpretation of performance of this Agreement (other than claims for which
injunctive relief is sought), or relating to the parties' relationship or any
transactions between them arising out of this Agreement, shall be resolved at
the request of either party through binding arbitration; provided, however, that
it shall not be deemed a waiver of the right to arbitrate for a party to seek,
nor shall this Agreement be interpreted to preclude a party from seeking, in a
court of competent jurisdiction, temporary or preliminary injunctive relief
pending entry of judgment on any arbitration award, or other appropriate
prejudgment relief. Any discovery shall be conducted in accordance with the
Federal Rules of Civil Procedure. Except as otherwise expressly provided herein,
arbitration shall be conducted in accordance with the Commercial Rules of the
American Arbitration Association. The arbitrator(s) shall be (an) individual(s)
with substantial experience in legal issues relating to high technology
electronics. Judgment upon award by the arbitrator may be entered by any state
or federal court having jurisdiction.
16.13 Relationship of the Parties. The relationship of the parties hereto
is that of independent contractors. Neither party, nor its agents or employees
shall be deemed to be the agent, employee, joint venturer, partner or fiduciary
of the other party. Neither party shall have the right to bind the other party,
transact any business in the other party's name or on its behalf or incur any
liability for or on behalf of the other party.
17 GOVERNMENT PROCUREMENTS
If this Agreement is entered into as a first tier or lower tier subcontract
under a U.S. Government prime contract, Customer warrants, represents and agrees
that no "technical data" (as defined at DoD FAR Supp. 252.227-7013) deliverable
to Customer under this Agreement is deliverable (or will be delivered) by the
Customer to the U.S. Government or any other third party.
IN WITNESS HEREOF the parties have caused this Agreement to be signed by their
duly authorized representatives.
LSI LOGIC CORPORATION INTERDIGITAL COMMUNICATIONS
CORPORATION
BY: /s/ Ronald Kahli BY: /s/ Dr. Gary Lomp
---------------------------- ----------------------------
Ronald Kahli Dr. Gary Lomp
TITLE: TITLE: General Manager
------------------------- -------------------------
299
12