EXHIBIT 4.10
OMNIVISION PREFERRED PARTNER AGREEMENT
This OmniVision Preferred Partner Agreement ("Agreement") is entered into as of
July 15, 2003 ("Effective Date"), between OmniVision Technologies, Inc.
("OmniVision"), a Delaware corporation whose principal office is located at 930
Thompson Place, Sunnyvale, California 94058, U.S.A., and Namtai Electronic
(Shenzhen) Company Limited ("Company"), whose principal office is located at
Gusu Industrial Estate, Xixiang, Baoan, Shenzhen, PRC
RECITALS
WHEREAS, OmniVision develops and markets various image-sensing
semiconductor products;
WHEREAS, Company develops and markets modules that incorporate
image-sensing semiconductor products;
WHEREAS, OmniVision and Company recognize the needs to improve time to
market for their respective products and to further invest in the innovation of
products in order to be competitive in the market place; and
WHEREAS, OmniVision and Company believe the competitiveness of the
respective party can be enhanced by Company participating in OmniVision's
Preferred Partner Program (the "Program"), as further described below;
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein below, the parties hereby agree as follows:
1. OmniVision Obligations. Except as otherwise provided herein, OmniVision
shall use its commercially reasonable efforts to provide Company with the
following:
1.1 Advance roadmap for OmniVision products (approximately 4 months
ahead of non-Program members);
1.2 Advance preliminary product datasheets (at least 2 months ahead
of non-Program members, or when first made available key customers, whichever is
earlier);
1.3 Additional technology or product information requested by key
customers will be provided directly by Omnivision. Omnivision will copy Company
if key customer also requested such information from Company;
1.4 Preliminary budgetary pricing (approximately 4 months ahead of
non-Program members);
1.5 Optics and lens and module design guidance and feedback, if
available;
1.6 Assistance with lens sourcing, where available;
1.7 Program-level support;
1.8 Program pricing on all OmniVision products and
1.9 Inclusion of Company in OmniVision's alphabetical listing of
Program members given to customers that inquire about module vendors.
2. Company Obligations. Except as otherwise provided herein, Company shall
use its commercially reasonable efforts to provide OmniVision with the
following:
2.1 Company will make best efforts at providing module samples to
Omnivision of new sensor products from Omnivision within 4 weeks of Omnivision
first providing samples of new sensor products;
2.2 Advance information on OmniVision-sensor-based Company module
specifications and information on module pricing of which must:
(a) be provided to OmniVision as soon as available, and no later
than when provided to any customer;
(b) be updated and provided to OmniVision on a quarterly basis;
and
(c) be identical to the information provided to any customer,
including without limitation sensor pricing in module breakdown
pricing information;
2.3 Quarterly updates regarding monthly capacity for manufacturing
and test;
2.4 Quarterly updates regarding lead-time to increase capacity for
manufacturing and test;
2.5 Company's corporate background information for OmniVision to
provide to its customers that inquire about Program members;
2.6 Invitation of OmniVision in first meetings with customers
(pre-sales, on a per program basis); and
2.7 Updates on the progress of Program-related sales and marketing
efforts at all stages (from pre-sale to design-in).
2.8 Omnivision and Company will make best efforts to review all
programs in which there is collaboration on a monthly basis.
3. Co-Marketing and Co-Promotion Obligations.
3.1 When Company has a lead on a potential customer ("Customer") for
modules using OmniVision's image sensor products, Company shall notify
OmniVision in writing identifying the Customer. Within 3 business days of
receipt of Company's notice, OmniVision shall notify Company in writing of
whether it was previously in contact with the Customer and, if it was not
previously in contact with the Customer, its acceptance or rejection of the
Customer for the Program co-marketing and co-promotion efforts described in this
Agreement.
(a) If OmniVision was previously in contact with the Customer,
or if OmniVision was not previously in contact with the Customer
and rejects the Customer, then neither party will have any
obligation with respect to such Customer.
(b) If OmniVision accepts the Customer, then:
(i) Company will officially introduce OmniVision to the
Customer through an email and a joint phone conference
call.
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(ii) Omni Vision will keep Company up to date of all
progress of the Customer's project at all stages (from
pre-sale to design-in).
(iii) OmniVision will not work with an alternate module
partner for the Customer's project, unless the Customer
requests otherwise. If the Customer requests otherwise,
OmniVision will notify within Partner within 3 business
days. If the Customer requests multiple sourcing for
supply of modules, OmniVision shall notify Company of
this within 3 business days. OmniVision will remain
completely neutral in the Customer's decision.
(iv) When the Customer wants to engage specifically in a
module program discussion, OmniVision will invite the
Company to a joint meeting with the Customer.
3.2 When OmniVision has a lead on a potential customer ("Customer")
for modules using OmniVision's image sensor products, OmniVision shall notify
Company in writing identifying the Customer. Within 3 calendar days of receipt
of OmniVision's notice, Company shall notify OmniVision in writing of whether
Company was previously in contact with the Customer regarding module sales and,
if it was not previously in contact with the Customer, its acceptance or
rejection of the Customer for the Program co-marketing and co-promotion efforts
described in this Agreement.
(a) If Company was previously in contact with the Customer, or
if Company was not previously in contact with the Customer and
rejects the Customer, then:
(i) Company shall place OmniVision at the top of
Company's list of image sensor suppliers in all
presentations and discussions.
(ii) Company may demonstrate modules using other sensors
to the Customer, but Company shall always demonstrate
OmniVision-based-modules first.
(iii) If the Customer selects another sensor vendor or
requests multiple sourcing for sensors, Company must
notify OmniVision of this within 3 business days.
(b) If Company accepts the Customer, then:
(i) OmniVision will officially introduce Company to the
Customer through an email and a joint phone conference
call.
(ii) Company shall promote OmniVision-based-modules to the
Customer and shall not mention, discuss, promote,
demonstrate or in any way communicate availability of
any module solutions with sensors other than OmniVision
sensors.
(iii) If the Customer expresses interest in another sensor
vendor or requests multiple sourcing for sensors, then
Company shall notify OmniVision of this within 3
business days.
(iv) When the Customer wants to engage specifically in a
module program discussion, OmniVision will invite
Company to a joint meeting with the Customer.
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4. New Module Designs
4.1 If OmniVision decides to introduce a new module design to
Company (the "Design"), then Company shall either reject or accept the Design in
writing within 3 business days of OmniVision's notice thereof.
4.2 If Company accepts the Design, then Company shall not use the
Design with any sensor other than those provided by OmniVision for a period of 6
months from the date of first commercial quantity shipment of a product based on
this design.
5. Intellectual Property. Each party remains the owner of its intellectual
property, and nothing in this Agreement constitutes a transfer of any rights in
either party's intellectual property to the other party.
6. Term and Termination
6.1 This Agreement commences on the Effective Date and will remain
in full force and effect until terminated as provided herein.
6.2 In the event of the insolvency, bankruptcy or voluntary
dissolution of Company, OmniVision may terminate this Agreement immediately on
written notice to Company.
6.3 Either party-may terminate this Agreement for convenience upon
30 days written notice.
6.4 If either party defaults in the performance of any provision
hereunder and if such default continues and is not cured within 30 days after
written notice thereof by the non-defaulting party, then the non-defaulting
party may terminate this Agreement.
6.5 The following Sections shall survive termination of this
Agreement: 4.2, 5, 6.5, 7,8, 9 and 10.
7. No Warranty. ALL INFORMATION EXCHANGED PURSUANT TO THIS AGREEMENT IS
PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITATION, EACH PARTY
DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NON-INFRINGEMENT.
8. Confidentiality. Company acknowledges that by reason of its relationship
to OmniVision hereunder it may have access to certain information and materials
concerning OmniVision's business plans, suppliers, customers and products
(including but not limited to information and materials contained in technical
data provided by OmniVision) which is confidential and of substantial value to
OmniVision, which value would be impaired if such information were disclosed to
third parties. Company agrees that it shall not use in any way for its own
account or the account of any third party, nor disclose to any third party, any
such confidential information which is revealed to it by OmniVision. Company
will take every reasonable precaution to protect the confidentiality of such
information consistent with the efforts exercised by it with respect to its own
confidential business information. OmniVision shall advise if it considers any
particular information or materials to be confidential. Company will not publish
any technical description of the Products beyond the description published by
OmniVision. In the event of termination of this
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Agreement, there shall be no use or disclosure by Company of any confidential
information of OmniVision,
9. Limitation of Liability. IN NO EVENT SHALL OMNIVISION BE LIABLE FOR COSTS
OF PROCUREMENT, SUBSTITUTE GOODS, LOSS OF PROFITS OR FOR ANY SPECIAL,
CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER, CAUSED, WHETHER FOR BREACH OR
WARRANTY, NEGLIGENCE OR OTHERWISE. THE LIMITATIONS OF LIABILITY AND LIMITED
REMEDIES HEREIN SHALL APPLY REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE.
10. General
10.1 This Agreement shall be governed by and interpreted under the
laws of the State of California, United States of America without reference to
conflicts of laws provisions.
10.2 No modification, change or amendment to this Agreement, nor any
waiver of any rights in respect hereto, shall be effective unless in writing
signed by the party to be charged, The waiver of any breach or default hereunder
shall not constitute the waiver of any subsequent breach or default.
10.3 Any notice or report required or permitted by this Agreement
shall be deemed given if delivered personally or if sent by either party to the
other by first class mail, postage prepaid, addressed to the other party at its
principal business address or at such other address as to which such party shall
give notice hereunder. If by mail, delivery shall be deemed effective 3 days
after deposit with postal authorities.
10.4 This Agreement and each and every covenant, term and condition
hereof is binding upon and will inure to the benefit of the parties hereto and
their respective successors and assigns.
10.5 The prevailing party in any legal action brought by one party
against the other shall be entitled, in addition to any other rights and
remedies it may have, to reimbursement for its expenses incurred thereby,
including court costs and reasonable attorney's fees.
10.6 This Agreement and any attachments and exhibits attached hereto
represent the entire agreement between Company and OmniVision with respect to
the subject matter hereof and supersede all prior negotiations, understandings,
representations and agreements, oral or written.
AGREED:
COMPANY OMNIVISION
/s/ Karene Wong /s/ John Lynch
- --------------------------- ------------------------------
name: Karene Wong name John Lynch
- --------------------------- VP Marketing Sales
title: Director --------------------------------
title VP Marketing Sales
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