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Exhibit 10.10
TECHNOLOGY AGREEMENT
This Technology Agreement is made this tenth (10th) day of June, 1996
("Effective Date"), by and between AWARE Inc., with offices at One Oak Park,
Bedford, Massachusetts ("AWARE") and BROADBAND TECHNOLOGIES, INC., with offices
at 4024 Stirrup Creek Drive, Durham, North Carolina ("BBT").
RECITALS:
A. Aware is a developer of copper based technology for
high speed transmission systems.
B. BBT designs, manufactures and markets telecommunica-
tions hardware and software that enables network
operators to provide a switched digital fiber optic
broadband network.
C. Both parties desire to enter into an agreement whereby AWARE
will develop and deliver to BBT, certain prototypes
incorporating DWMT technology for upstream FTTC/VDSL
applications in BBT's FLX platform.
Now therefore, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. DEFINITIONS
1.1 "Agreement" means this Technology Agreement and its appendices
attached hereto, as they be amended from time to time.
1.2 "DMT" means a modulation scheme that breaks available
bandwidth into narrow subbands to ensure reliable data
transmission, even when noise affects certain areas of the
available spectrum.
1.3 "VDSL" means very high speed digital subscriber line.
1.4 "DWMT" means a modulation scheme similar to DMT that uses
wavelet transformers rather than fast fourier transformers.
1.5 "FTTC" means fiber to the curb.
1.6 "Most Favored Customer" means that at all times that BBT is
purchasing product based on Aware DWMT technology, Aware will
make reasonable efforts to assist BBT with Aware's exclusive
silicon foundry, with price, delivery dates and other terms
and conditions not less favorable than the corresponding terms
and conditions granted by Aware's exclusive silicon foundry to
any other customer for the same or substantially similar
product.
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2. GENERAL SCOPE OF AGREEMENT
2.1 Scope. This Agreement covers the development of
certain prototypes incorporating DWMT technology by
Aware for the purpose of demonstrating the FTTC/VDSL
application into the BBT FLX System. Design,
development and production of final DWMT silicon for
incorporation into the BBT FLX System and future
products developed by BBT, if any, will be defined in a
separate supplier agreement between BBT and Aware's
silicon foundry.
3. TERM AND TERMINATION
3.1 Term. The term of this Agreement shall commence as of the
Effective Date, and shall, except as provided in Section 3.2
below, continue in effect for five (5) years ("TERM").
3.2 Termination.
(a) BBT may, in its sole discretion, terminate this
Agreement at any time upon written notice to
Aware.
(b) Aware may terminate this Agreement if BroadBand is in
breach of any of the terms and conditions of this
Agreement and fails to cure such breach within thirty
(30) days after of written notice from Aware.
3.3 Effect of Termination.
(a) In the event that BBT terminates due to Aware
being unable to meet the delivery dates noted in
Section 4.1, Aware Obligations, and prototype
specifications of Appendix A, Aware shall
immediately refund all payments to BBT, except the
first [redact], required by Section 5.1, and provide
BBT with all test results as of the date of
termination, related to this Agreement.
(b) Within thirty (30) days of any termination of this
Agreement or any of the licenses hereunder, each
party shall return or destroy all Confidential
Information of the other party provided hereunder and
an officer of the other party shall certify to the
other party in writing of compliance with the
requirements of this Section 3.3(b).
3.4 No Liability For Termination. Neither Aware or BBT
shall, by reason of the termination of this Agreement,
be liable to the other for compensation, reimbursement
or damages on account of any loss of prospective
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profits or anticipated sales or on account of expenditures,
investments, leases, or commitments made in connection with
this Agreement or the anticipation of extended performance
hereunder.
3.5 Survival of Terms. In the event of termination of this
Agreement for any reason, the Sections 6, 7.1, 8 and 9 of this
Agreement shall survive termination, cancellation, or
expiration of this Agreement or any purchase order.
4. AWARE OBLIGATIONS
4.1 DWMT Deliverables. Aware shall deliver five (5) sets of
working prototypes and supporting documentation to BBT that
meet the technological requirements as defined in Appendix A
herein, no later than August 6, 1996. These prototypes will
serve to demonstrate and test the DWMT technology for
FTTC/VDSL application, facilitate bandwidth management
software implementation and integration into the BBT FLX
platform and serve as the prototypes for the production level
DWMT chipset that will later be integrated with other silicon
suppliers and BBT proprietary high speed transmission
chipsets.
4.2 Commitment. Aware shall make commercially reasonable efforts
to assist BBT to achieve Most Favorable Customer status with
Aware's exclusive silicon foundry. In addition to the DWMT
deliverables, Aware shall continue to do reasonable additional
work with BBT as shall be necessary to develop a commercial
product that can be manufactured by a third party foundry.
Aware shall make commercially reasonable efforts to work with
its exclusive silicon foundry to have chipsets available by
April 1997.
4.3 Future Deliverables. Aware will advise BBT, prior to or in
parallel with discussions with other potential Aware customers
for future VDSL technology developed by Aware, under terms and
conditions to be mutually agreed to by BBT and Aware.
4.4 Marketing and Technical Support. Aware agrees to provide
marketing of their upstream technology and similar prototypes
support for other customer applications on a global scale to
legitimize the technology. Aware, at its own expense, will
reasonably support end customers with DWMT product
demonstrations and technical support to legitimize the
technology worldwide and jointly with BBT support total
solutions to network operators worldwide. Aware and BBT will
mutually develop a test plan for DWMT by June 30, 1996 and
provide reasonable ongoing support of these test plans for the
Terms of this Agreement.
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5. PAYMENTS
5.1 Payments by BBT. BBT will pay Aware a non-refundable amount of
[redact] upon the signing of this Agreement. BBT further will
pay Aware [redact] upon the delivery, testing and acceptance
by BBT of five (5) DWMT prototypes in accordance with the
specifications outlined in Appendix A by August 6, 1996. If
there is a delay beyond August 6, 1996 on Aware's part, Aware
will forfeit the [redact] payment.
5.2 Payments by Aware. Aware will pay BBT [redact] each for the
next two (2) Aware customers for whom Aware performs services
or provides prototypes similar to those provided or performed
under this Agreement. Aware shall promptly notify BBT upon
this event occurring, and specific testing (i.e. field and BBT
lab trials) performed jointly with BBT shall be treated as BBT
proprietary information. BBT, at Aware's request, may disclose
this information to third parties.
5.3 Rebates to BBT. Aware shall pay BBT a [redact] per quad
chipset rebate for each unit purchased by BBT from Aware's
silicon foundry up to a maximum of [redact]. Additionally,
Aware shall pay BBT a [redact] per quad chipset rebate up to a
maximum of [redact] upon attainment of the first dollar amount
noted herein. BBT shall invoice Aware on a quarterly basis
based upon actual BBT purchase order receipts from Aware's
silicon foundry for each quad chipset.
5.4 Terms of Payment. Payments shall be made net thirty (30)
calendar days from the date of invoice for each party. Neither
party shall consider the other party in default if payments
are made net forty-five (45) calendar days unless there is
evidence of repeated late payments after notice in writing to
the late party.
6. WARRANTIES AND LIABILITIES
6.1 Warranty. Aware warrants to BBT that the DWMT prototypes will
be free from defects in material and workmanship and conform
in all material respects to the specifications defined in
Appendix A until delivery of commercial DWMT VDSL chipsets.
Aware will either repair or replace any product containing
such a defect or failing so to conform within a reasonable
timeframe, not to exceed ninety (90) days after BBT gives
notice of the defect. Repair or replacement shall be the sole
remedy for breach of the warranty set forth in this
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Section 6.1, unless the defect is not remedied within ninety
(90) days.
6.2 Infringement. Aware shall indemnify and save harmless BBT, its
affiliates, its and their customers, and each of their
officers, directors, employees, successors and assigns from
and against any losses, damages, liabilities, fines,
penalties, and expenses (including reasonable attorneys' fees)
that arise out of or result from any claim of infringement of
any patent, copyright, trademark or trade secret right, or
other intellectual property right, private right, or any other
proprietary or personal interest and which is caused by BBT's
use of the prototypes delivered under this Agreement for the
purposes set forth in this Agreement (an "Infringement
Claim"), provided that the infringement Claim does not arise
from Aware's adherence to BBT's written instructions or to the
specifications. BBT shall provide Aware with the control of
the defense or settlement of any such Infringement Claim, and
BBT shall provide Aware with such documentation or assistance
as Aware may request in connection with such defense or
settlement. BBT shall have a right to participate in any
action relating to an Infringement Claim against BBT, and
Aware shall not enter into any settlement of an Infringement
Claim that is materially adverse to BBT without BBT's prior
written consent.
6.3 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 6.1 AND
SECTION 6.2, AWARE MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROTOTYPES TO BE
DELIVERED UNDER THIS AGREEMENT OR WITH RESPECT TO ANY OTHER
PRODUCTS OR SERVICES PROVIDED TO BBT BY AWARE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS SET FORTH
IN SECTION 6.1 AND SECTION 6.2, AWARE HEREBY DISCLAIMS ALL
WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS
FOR A PARTICULAR PURPOSE.
6.4 Limitation of Liability. EXCEPT WITH RESPECT TO
INDEMNIFICATION FOR INFRINGEMENT, IN NO EVENT SHALL THE
LIABILITY OF AWARE TO BBT, WHETHER ARISING IN TORT, CONTRACT,
OR OTHERWISE, FOR ANY CLAIM, ACTION, SUIT OR PROCEEDING
ARISING OUT OF OR RELATING TO THE PROTOTYPES OR THIS AGREEMENT
EXCEED THE AMOUNT PAID BY BBT TO AWARE PURSUANT TO THIS
AGREEMENT.
7. GRANT OF RIGHTS
7.1 DWMT Technology. Subject to the terms and conditions
of this Agreement, Aware grants to BBT and any wholly
owned subsidiary, or affiliate of BBT, a non-exclusive,
non-transferable, perpetual, worldwide, royalty-free
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license without the right to sublicense, under Aware
copyrights, patents and trade secrets covering the use of the
DWMT technology to use the prototypes developed under this
Agreement solely for evaluating the DWMT technology for use in
the BBT FLX System and future products developed by BBT.
7.2 No Trademark Rights. No provision or term of this Agreement
shall be construed as granting BBT any right or license to use
Aware's name or any Aware trademark or trade name in
connection with the DWMT technology or otherwise, except that
BBT may indicate to the public that the DWMT technology is
based on Aware technology.
8. CONFIDENTIALITY
8.1 Confidential Information. The parties acknowledge that the
DWMT technology contains the confidential information of Aware
and its silicon foundry and BBT's use of such information
shall be pursuant to the terms of the Confidential
Nondisclosure Agreement between Aware and BBT which is
incorporated herein by reference. BBT shall not disclose any
technical information owned by Aware to any third party,
individual, corporation, or other entity, except to
subcontractors of BBT under an obligation of confidentiality,
without the prior written consent of Aware. BBT shall protect
all technical information received from Aware by using at
least the same degree of care, but no less that a reasonable
degree of care, to prevent the unauthorized use, dissemination
or publication of such information as Aware uses to protect
its own confidential information of a like nature.
8.2 Confidentiality of Agreement. The parties hereto shall keep
the terms of this Agreement confidential and shall not now or
hereafter divulge these terms to any third party except:
(a) with the prior written consent of the other party;
or
(b) to any governmental body having jurisdiction to
call therefor; or
(c) subject to (d) below, as otherwise may be required
by law or legal process, including to legal and
financial advisors in their capacity of advising a
party in such matters; or
(d) during the course of litigation so long as the
disclosure of such terms and conditions are
restricted in the same manner as is the
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confidential information of other litigating parties
and so long as (a) the restrictions are embodied in a
court-entered Protective Order and (b) the disclosing
party informs the other party in writing in advance
of the disclosure; or
(e) in confidence to legal counsel, accountants, banks
and financing sources and their advisors solely in
connection with complying with financial
transactions; or
(f) to the extent reasonably necessary in connection with
the completion of any investment memorandum,
prospectus, or similar document disclosed to
investors in connection with efforts of the party to
obtain financing.
The parties shall cooperate in preparing and
releasing an announcement, if any, relating to this
Agreement.
9. MISCELLANEOUS CLAUSES
9.1 Notices. Any notice or demand which under the terms of this
Agreement or under any statute must or may be given or made by
BBT or Aware, shall be in writing and shall be given or made
by confirmed facsimile or similar communication or by
certified or registered mail addressed to the respective
parties as follows:
To Aware: Aware, Inc.
One Oak Park
Bedford, Massachusetts
Attn: Michael Tzannes
To BBT: BroadBand Technologies, Inc.
4024 Stirrup Creek Drive
P.O. Box 13737
Durham, NC 27709-3737
Attn: Mr. Tim Oakley, VP & CFO
and
Attn: Customer Service Department
Such notice or demand shall be deemed to have been given or
made when sent by facsimile, or other communication or when
deposited, postage prepaid in the U.S. mail. The above
addresses may be changed at any time by giving prior written
notice as above provided.
9.2 Force Majeure. Neither party will be liable for any
failure to perform due to unforeseen circumstances or
causes beyond the parties' reasonable control,
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including, but not limited to, acts of God, war, riot,
embargoes, acts of civil or military authorities, earthquakes,
fire, flood, accident, strikes, inability to secure
transportation, facilities, fuel, energy, labor or materials.
Time for performance will be extended by Force Majeure.
9.3 Assignment. Each party shall have the right to assign this
contract to any party that acquires substantially all of the
business of such party without the consent of the other party.
9.4 Choice of Law. The construction, interpretation and
performance of this Agreement and all transactions under it
shall be governed by the laws of the State of North Carolina,
excluding its choice of law rules and excluding the Convention
for the International Sale of Goods. The parties agree that
the provisions of the North Carolina Uniform Commercial Code
apply to this Agreement and all transactions under it,
including agreements and transactions relating to the
furnishing of services, the lease or rental of equipment or
material, and the license of software.
9.5 Jurisdiction. BBT and Aware agree that any action or legal
proceeding arising out of this Agreement shall be brought only
in a state or federal court of competent jurisdiction in the
Commonwealth of Massachusetts and BBT and Aware expressly
submits to, and accepts the jurisdiction of, any such court in
connection with such action or proceeding and BBT and Aware
further consent to the enforcement of any judgment against
either party arising therefrom in any jurisdiction in which
either party has or shall have any assets.
9.6 Severability. If any of the provisions of this Agreement shall
be invalid or unenforceable, such invalidity or
unenforceability shall not invalidate or render unenforceable
the entire Agreement, but rather the entire Agreement shall be
construed as if not containing the particular invalid or
unenforceable provision or provisions, and the rights and
obligations of BBT and Aware shall be construed and enforced
accordingly.
9.7 Mediation. If a dispute arises out of or relates to this
Agreement, or its breach, and the parties have not been
successful in resolving such dispute, the parties agree to
attempt to resolve the dispute through mediation by submitting
the dispute to a sole mediator selected by the parties or, at
any time at the option of a party, to mediation by the
American Arbitration Association ("AAA"). Each party shall
bear its own expenses and an equal share of the expenses of
the
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mediator shall hold the existence, content and result of the
mediation in confidence. If such dispute is not resolved by
such mediation, within thirty (30) days after a party requests
mediation, the parties shall have the right to resort to any
remedies permitted by law. All defenses based on passage of
time shall be tolled pending the termination of the mediation.
Nothing in this clause shall be construed to preclude any
party from seeking injunctive relief in order to protect its
rights pending mediation. A request by a party to a court for
such injunctive relief shall not be deemed a waiver of the
obligation to mediate.
9.8 Relationship of the Parties. Neither party hereto will be
deemed the agent or legal representative of the other for any
purpose whatsoever and each party will act as an independent
contractor with regard to the other in its performance under
this Agreement. Nothing herein will authorize either party to
create any obligation or responsibility whatsoever, express or
implied, on behalf of the other or to bind the other in any
manner, or to make any representation, commitment or warranty
on behalf of the other.
9.9 Entire Agreement. This Agreement shall incorporate Appendix A
and together with the Confidential Non- Disclosure Agreement
between the parties shall constitute the entire agreement
between them with respect to the subject matter of this
Agreement. All references in these terms and conditions to
this Agreement or equipment, products, software or information
furnished under, in performance of, pursuant to, or in
contemplation of, this Agreement shall also apply to any
purchase orders issued pursuant to this Agreement. Printed
provisions on the reverse side of Aware's purchase orders and
all provisions of BBT's forms shall be deemed deleted. The
provisions of this Agreement supersede all contemporaneous
oral agreements and all prior oral and written quotation,
communication, agreements and understandings of the parties
with respect to the subject matter of this Agreement.
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9.10 Counterparts. This Agreement may be executed in one or more
counterparts.
Aware, Inc. BroadBand Technologies, Inc.
By /s/ Michael Tzannes By /s/ Leonard D. Hayes
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Name (Print) Michael Tzannes Name (Print) Leonard D. Hayes
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Title Senior Vice President Title Director -- Materials
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Date 6/14/96 Date 6/17/96
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