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EXHIBIT 10.21
PRODUCT PURCHASE AND LICENSE AGREEMENT
AGREEMENT NO. ______________
BETWEEN
INTEL CORPORATION AND NOVATEL WIRELESS, INC.
This Agreement dated this 23 day of October, 2000 ("Effective Date") is
between Novatel Wireless, Inc., with a place of business at 9360 Towne Centre
Drive, Suite 110, San Diego, CA 92121, and Intel Corporation, with a place of
business at 2111 N.E. 25th Avenue, Hillsboro, OR 97124-6497. The "Agreement,"
"Novatel Wireless" and "Intel" are defined more fully below. Novatel Wireless
and Intel are collectively referred to as "Parties", and each individually as a
"Party", in this Agreement.
RECITALS
1. Novatel Wireless develops, markets, sells and licenses wireless modems
and related firmware and software.
2. Subject to the terms of this Agreement, Intel desires to purchase, and
Novatel Wireless desires to sell, wireless modems for incorporation in
or integration with Intel's Products, including without limitation a
family of wireless computing products that Intel may distribute to end
user customers directly and through Intel's distribution channel of
resellers, distributors, OEMs and system integrators. Subject to the
terms and conditions of this Agreement, Intel also desires that Novatel
Wireless sell wireless modems to Intel's contract manufacturers and to
third party resellers of wireless computing products on terms and
conditions similar to those set forth herein.
3. In addition, subject to the terms of this Agreement, Intel desires to
license from Novatel Wireless the necessary rights to manufacture and
have such wireless modems manufactured and, under certain circumstances,
to enhance and modify the design of such modems.
AGREEMENT
Now, therefore, in consideration of the foregoing, the covenants stated
herein, and for other good and valuable consideration, the receipt and
sufficiency of which the Parties hereby acknowledge, the Parties agree as
follows:
1. DEFINITIONS. The capitalized terms in this Agreement shall have the
following definitions.
1.1 "Agreement" shall mean this document and its Exhibits, schedules,
attachments or addenda, and any amendments to the foregoing.
1.2 " *** " shall mean the *** of the Products, *** .
1.3 "Derivative" means (a) for material subject to copyright protection,
any work that is based upon one or more pre-existing works, such as a
revision, modification, translation, abridgment, condensation,
expansion, collection, compilation or any other form in which such
pre-existing works may be recast, transformed or adapted and (b) for
patentable or patented materials, any adaptation, subset, addition,
improvement or combination.
1.4 "Design Package" shall mean, with respect to each Form Factor, all
of the documentation, including all Updates thereto, necessary to permit
the design and manufacture of such Form Factor. The Design Package shall
include without limitation the items listed in Exhibit C-2.
1.5 "Documentation" shall mean training materials, product descriptions,
specifications, technical manuals and other printed information in any
medium for the Products including all Updates thereto,
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shipped to Intel and shall include Updates to such Documentation created
from time to time during the term of this Agreement.
1.6. "Form Factor" shall mean each of the ***.
1.7 "Intel" shall mean Intel Corporation and its Subsidiaries.
1.8 "Intel Manufacturer" shall mean an OEM that manufactures products
for or for Intel.
1.9 "Intel Product" shall mean a product manufactured by or for Intel.
1.10 "Intellectual Property Rights" means (i) all United States and
foreign letters patent and applications for letters patent, industrial
models, industrial designs, utility models, certificates of invention,
and other indications of invention ownership, including any such rights
granted upon any reissue, division, or continuation or
continuation-in-part applications now or hereafter filed; (ii) all trade
secret rights arising under the laws of any jurisdiction; (iii) all
United States and foreign semiconductor mask work rights and
registrations for such rights; and (iv) all copyright rights and all
other literary property and author rights, whether or not copyrightable,
and all copyrights and copyrighted interests, including any renewals
thereof. Intellectual Property Rights do not include any rights in any
trademarks, trade names, service marks, logos, and the goodwill
associated therewith.
1.11 "Invention" shall mean any idea, design, concept, technique,
invention, discovery or improvement relating to software, firmware,
microcode, or the hardware intended to run such software, firmware,
and/or microcode, whether or not patentable, that is first conceived or
reduced to practice by one or more of the inventing party's employees
during the term and in the performance of this Agreement.
1.12 "Manufacturing Package" shall mean all of the documentation
including all Updates thereto necessary for the manufacture of the
Products. The Manufacturing Package shall include without limitation the
items set forth in Exhibit C-1.
1.13 "Novatel Wireless" shall mean Novatel Wireless, Inc, and its
Subsidiaries.
1.14 "Novatel Wireless Intellectual Property Rights" means all
Intellectual Property Rights owned by, controlled by, or licensed to,
Novatel Wireless on or after the Effective Date.
1.15 "Novatel Wireless Manufacturer" shall mean an OEM that manufactures
products by or for Novatel Wireless.
1.16 "OEM" means original equipment manufacturer.
1.17 *** shall mean the *** of the Products, as described in Exhibit A.
1.18 "Patent Rights" means with respect to a party all of such party's
rights arising from or related to all classes or types of patents,
utility models and design patents and applications for these classes or
types of patent rights and any equivalent rights in all countries of the
world that are owned or controlled by such party.
1.19 "***" means *** manufactured by or on behalf of Intel or
third-parties that are or will be used in connection with the ***.
1.20 "***" means the *** and *** being developed by and for Intel for a
family of ***, ***, ***.
1.21 "***" shall mean the *** of the Products, as described in
Exhibit A.
1.22 "Products" shall mean Novatel Wireless's wireless modems and
related firmware and software which are sold or licensed to Intel under
this Agreement, consisting of the ***, ***, including without limitation
the Product Software, all as described in Exhibit A, and any Updates
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thereto.
1.23 "Product Support" mean the support that Novatel Wireless is
required to provide Intel with respect to the Products, as described in
Exhibit D.
1.24 "Product Software" shall mean the software and firmware, including
all related Documentation and Updates thereto, that is required or
normally provided by Novatel Wireless for the operation of the Products,
in compiled object code form (or, only if licensed pursuant to the
Design Package license provisions in Section 5, in source code form), as
described in Exhibit A, including without limitation the TTP Com
Software.
1.25 "Product Software Utilities" shall mean the Product Software
Utilities described in Exhibit A hereto, including any Updates thereto.
1.26 "Shipment" or "Shipped" refers to a shipment by Intel or an Intel
Manufacturer of a Product out of finished goods.
1.27 "Subsidiary" shall mean a corporation, company or other entity more
than fifty percent (50%) of whose outstanding shares or securities
(representing the right to vote for the election of directors or other
managing authority) are owned or controlled, directly or indirectly, by
a party hereto. However, such corporation, company or other entity shall
be deemed to be a Subsidiary only so long as such ownership or control
exists.
1.28 "Substitutable Product" shall mean a wireless modem, whether
Novatel Wireless's or a third party's, which would be considered a
substitute or replacement product for Products.
1.29 "TTP Com Software" shall mean the Layer 2/3 Protocol Stack and
Application Layer software licensed from TTPCom to Novatel Wireless as
in existence on the Effective Date, and any Updates thereto.
1.30 "Updates" shall mean with respect to any Product (including Product
Software) any modifications to or Derivatives of the Products developed
by Novatel Wireless during the term of this agreement that correct
errors, fix bugs, or provide other incidental corrections, or improve
functions, add new functions, or improve performance by changes in
system design and coding (including modifications to hardware, firmware
and software), including carrier-mandated hardware and software fixes,
component (vendor) changes, implemented cost reduction strategies;
software/firmware changes; changes to the connector or antenna (and
related Documentation), which are made available at no additional charge
to any customer of Novatel Wireless who purchases such Product, except
that notwithstanding the foregoing, "Updates" shall not include
modifications to or Derivatives of the Products implementing changes in
the band or mode for current Form Factor sizes (e.g., single or
multi-band; single or multi-mode), changes in the form factor relating
to a specific host, or substantial changes to the host connector or
antenna. "Updates" with respect to the Manufacturing Package and the
Design Package shall include all of the Updates as specified above for
Products, and also information and support documentation with respect to
any change in the manufacturing process that supports any Updates to
Products.
2. PURCHASE OF PRODUCTS. Intel may purchase and Novatel Wireless shall sell the
Products at the prices specified in Exhibit B-1 and in accordance with the
specifications set forth in Exhibit A, as updated from time to time by Novatel
Wireless in accordance with Section 2.6 hereof ( "Product Specifications",
"Product specifications" or "specifications"), the quality requirements set
forth in Exhibit E, and the terms and conditions of Exhibit B. Intel shall have
no obligation to purchase a minimum number of Product units from Novatel
Wireless. In addition, Novatel Wireless shall sell Products directly to Intel's
Manufacturers of *** and to third party resellers private labeling *** on terms
and subject to conditions substantially similar to the terms and conditions of
this Agreement.
2.1 Object Code License to Product Software. Novatel Wireless grants to
Intel, ***
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license (with the right to sublicense only as expressly set forth
herein) to reproduce, display, perform, and distribute the Product
Software in object code form to end users directly or indirectly through
Intel's distribution channels, including without limitation, OEMs,
value-added resellers, system integrators, distributors and resellers;
but solely to the extent that the Product Software is incorporated in or
integrated with Products purchased by Intel under this Section 2 or
manufactured by or for Intel under the license to the Manufacturing
Package, and for no other purpose. In connection with the exercise of by
Intel of the license to the Manufacturing Package, the Product Software
shall not include the TTP Com Software. Intel shall have the right to
sublicense the foregoing rights to third parties in relation to the
distribution of the Products or to Intel Manufacturers in connection
with its exercise of the license to the Manufacturing Package
Manufacturer subject to appropriate restrictions on disclosure and use
by such Intel Manufacturer. The license granted under this Section 2.1
shall terminate upon termination of the Agreement, except that it shall
be perpetual with respect to Products which utilize the Product Software
and which have been: 1) made by Intel or an Intel Manufacturer pursuant
to the manufacturing license granted in Section 4.1; or 2) sold to Intel
under this Agreement by Novatel Wireless.
2.2 Source Code License to Product Software Utilities and Delivery of
Product Software Utilities. Within ten (10) days of the Effective Date
of this Agreement, Novatel Wireless will deliver or have delivered to
Intel the Product Software Utilities, in source code form. Novatel
Wireless grants to Intel, *** license to reproduce, internally display,
internally perform and make Derivatives of (only under the conditions
provided herein) the Product Software Utilities solely for the internal
development and support of the Products and to compile and distribute in
object code form such Product Software Utilities as incorporated in or
integrated with Intel Products, and for no other purposes. Intel shall
promptly report to Novatel Wireless any Derivatives made using the
Product Software Utilities and shall send a copy of any such Derivatives
to Novatel Wireless in both source code and object code format and shall
provide Novatel Wireless with a non-exclusive, worldwide, irrevocable,
perpetual, fully-paid, royalty-free license to such Derivatives.
2.3 Other Intellectual Property License. Novatel Wireless grants to
Intel a license under all of its other Intellectual Property Rights
sufficient for Intel to exercise the copyright rights granted to it in
Sections 2.1 and 2.2 and for no other purpose.
2.4 Obligation to Meet Product Milestones; Access to Prototypes: (a)
Novatel Wireless will complete the following milestones with respect to
the development and production readiness of the Products by the dates
specified below (each, a "Product Milestone"):
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For the purpose of this Section 2.4, the following terms shall have the
following meanings: "PROTOTYPE" - Functionally incomplete, not in final
Form Factor, demonstrable with significant effort. "ALPHA" -
Functionally complete (code complete), in final Form Factor, integration
into other systems is possible with some effort, demonstrable with ease,
bugs are to be expected. "BETA" - Has passed a significant amount of
quality assurance and validation tests, new bugs are few
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and far between, integration with other systems is complete, may be
certified by FCC and other regulatory bodies. "PRODUCTION READY" -
Certified against and validated against specifications, ready for first
customer ship.
(b) Novatel Wireless will provide Intel the Prototypes, Alpha and Beta
units described in Section 2.4(a) prior to providing such Prototypes to
any other entity and Novatel Wireless will provide Production Ready
units of the Products to Intel prior to providing such units to any
other entity.
2.5 [***]
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2.6 Product Specifications Input Process. The parties understand that the
Product specifications set forth in Exhibit A hereto are in some
respects incomplete and will be modified and updated by Novatel Wireless
during the course of this Agreement as part of Novatel Wireless's normal
process of development. The parties agree that they will follow the
following process with regard to permitting Intel to have input with
respect to the development and updating of specifications for the
Products:
A. [***]
B. [***]
C. Novatel Wireless provides pre 1.0 release specification to Intel in
either Word or PDF format on either major revisions or modifications to the
specification(s).
D. Intel reviews each specification and provides written feedback to
Novatel Wireless for each specification.
E. Intel and Novatel Wireless hold a review teleconference to go over
the specifications.
F. Each company will iterate on this until all specifications reach a
1.0 release level, it being understood by the parties that Novatel Wireless
shall have sole discretion as to the final specifications.
3. SERVICES.
3.1 Product Support. During the term of this Agreement, Novatel
Wireless, [***], shall provide Product
Support in accordance with Exhibit D. Product Support shall be provided
by Novatel Wireless for the term of this Agreement for all the Products,
regardless of whether Novatel Wireless discontinues the manufacture or
ends the life of any Product.
3.2 Product Updates. During the term of this Agreement, Novatel
Wireless, [***], Novatel Wireless shall
deliver to Intel Updates made by or for it to Products (including the
Product Software) no later than the delivery to any other customer.
3.3 Implementation Services. In the event Intel exercises its option to
license the Manufacturing Package or Design Package, [***]
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***
3.4 Additional Consulting Services. ***
3.5 Interoperability Testing. Novatel Wireless will provide, *** the
interoperability Testing services described in Exhibit H hereto in a
manner consistent with the requirements of Exhibit B, except for
Sections 3 and 4 thereof. The Statements of Work developed by the
parties and governed by Exhibit B will be based on Exhibit H.
3.6 Applicability of Exhibit B to Product Support and Implementation
Services. Product Support and the Implementation Services provided under
this Agreement shall be rendered in a manner consistent with the terms
and conditions of Sections 8, 12, 14, 15, 17, 19, 20 of Exhibit B, and
will be considered "Services" for the purposes of such sections of
Exhibit B.
4. MANUFACTURING PACKAGE AND LICENSE
4.1 Manufacturing License. Intel shall have the option, in its sole
discretion, and upon ten (10) days written notice to Novatel Wireless at
any time during the term of this Agreement, to license the Manufacturing
Package pursuant to the terms and conditions of this Agreement,
including without limitation this Section 4.1. Upon such notice, Novatel
Wireless grants to Intel a ***
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***, with the right to sublicense only as expressly permitted by this
Agreement, under Novatel Wireless's Intellectual Property Rights in the
Manufacturing Package, to use, import, reproduce, perform, display and
distribute such Manufacturing Package solely to manufacture, or have
manufactured the Products for incorporation in or integration with Intel
Products, and to make, have made, use, sell, offer to sell, import,
reproduce, display, perform and distribute the Products incorporated in
or integrated with Intel Products to end users directly or indirectly
through Intel's distribution channels, including without limitation,
OEMs, value-added resellers, system integrators, distributors and
resellers, and for no other purposes. Such manufacturing license shall
include a license under Novatel Wireless's Patent Rights that is
sufficient in scope in order for Intel to manufacture and have
manufactured the Products as specified above. Intel shall have the right
to sublicense such rights to an Intel Manufacturer subject to
appropriate restrictions on disclosure and use by such Intel
Manufacturer , and Intel agrees to cause such Intel Manufacturers to
abide by all of the terms and conditions of this Section 4.1 and with
respect to the confidentiality provisions of Section 10.1 as they relate
to the Manufacturing Package.
4.2 Royalty Prepayment for Implementation Services. In consideration for the
Implementation Services with respect to the Manufacturing Package, Intel
shall pay Novatel Wireless ***.
4.3 Manufacturing Royalty.
(a) Subject to Section 4.3(b), for each Product manufactured under the license
set forth in Section 4.1 for which a Shipment has been made, Intel shall pay
Novatel Wireless royalties ("Manufacturing Royalties") in an amount equal to
***
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***
4.4 Generation Deposit and Return of Manufacturing Package: In support
of Novatel Wireless's obligations under this Section 4, Novatel Wireless
shall generate and deposit the Manufacturing Package in escrow with the
escrow agent identified in Exhibit C-3 pursuant to the terms and
conditions of Exhibit C-3. Upon termination of this Agreement, unless
the manufacturing license is renewed under terms mutually agreed to in
writing by the parties, Intel shall immediately return all copies of the
Manufacturing Package to Novatel Wireless or certify in writing that it
all such copies have been destroyed, including any copies in the
possession of Intel Manufacturers.
4.5 Updates to Manufacturing Package: During the term of this Agreement,
Novatel Wireless shall deposit in escrow, or if applicable, make
available to Intel, Updates to the Manufacturing Package, whether the
Manufacturing Package is in escrow or has been accessed by Intel
pursuant to the exercise of the license granted in Section 4.1. Such
Updates shall be delivered to the escrow agent, or if applicable, to
Intel on a quarterly basis or promptly upon a change in the
Manufacturing Package, whichever is more frequent with respect to any
Products, until Intel notifies Novatel Wireless in writing that it has
permanently ceased distribution of such Products or upon the
discontinuance of use of such Products by Intel, but in any event not
later than the expiration or termination of this Agreement. Such Updates
may include materials which Intel has reasonably requested which are not
listed in Exhibit C-1, subject to the consent of Novatel Wireless which
shall not be unreasonably withheld, conditioned or delayed.
4.6 Royalty Reports. Intel will submit a royalty report with respect to
Products Shipped by Intel and Intel Manufacturers under the
manufacturing license, and pay to Novatel Wireless Manufacturing
Royalties on the same due within *** of the end of each calendar quarter
in which such amounts are due. Such royalty reports will contain
adequate detail for Novatel Wireless to determine the basis for such
payments, and the royalty reports and the underlying information from
which they were prepared shall be subject to the audit rights of Section
13 of this Agreement. Novatel Wireless agrees to maintain royalty
reports as Confidential Information under this Agreement. Payment of
royalties shall be made by wire transfer of immediately available funds
to the following account: ________________________.
5. DESIGN PACKAGE AND LICENSE
5.1 Design License:
(a) License Grant:Intel shall have the option, in its sole
discretion and upon notice to Novatel Wireless at any time during the
term of this Agreement, to license the Design Package for any Form
Factor. Upon such notice, or upon the occurrence of any one of the
conditions set forth in Section 5.1(b), Novatel Wireless grants to Intel
A ***
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[***] with the right to sublicense only as expressly permitted by this
Agreement, under Novatel Wireless's Intellectual Property Rights in the
Design Package, use, import, reproduce, display, perform, and modify
(but only under the terms set forth in this Section 5.1(a)) such Design
Package for such Form Factor of the Products and any authorized
modification thereof, to manufacture and have manufactured such Form
Factor of the Products and any authorized modifications thereof for
incorporation in or integration with [***], and to make, have made, use,
sell, offer to sell, import, reproduce, display, perform and distribute
such Form Factor of the Products and any authorized modification thereof
incorporated in or integrated with such [***] to end users directly or
indirectly through Intel's distribution channels, including without
limitation, OEMs, value-added resellers, system integrators,
distributors and resellers. Such design license shall include a license
under Novatel Wireless's Patent Rights that is sufficient in scope in
order for Intel to exercise fully the license grant set forth above.
Intel may sublicense such rights (other than the right to make
modifications of the Products) to an Intel Manufacturer subject to
appropriate restrictions on disclosure and use by such Intel
Manufacturer and Intel agrees to cause such Intel Manufacturers to abide
by all of the terms and conditions of this Section 5.1 and with respect
to the confidentiality provisions of Section 10.1 as they relate to the
Design Package. Intel has the right to make modifications to the Design
Package and to the Products, without seeking the consent of Novatel
Wireless only if such modifications are substantially similar in nature
and scope to Updates previously provided by Novatel Wireless (such
modifications hereafter referred to as "Update Modifications"). Intel
shall grant to Novatel Wireless [***]. Such Update Modifications,
including all related information and Documentation, shall be promptly
delivered to Novatel Wireless, in source code form, consistent with the
manner set forth in Section 5.4 with respect to delivery of Updates to
the Design Package by Novatel Wireless. Intel may request of Novatel
Wireless, the right to make additional modifications to the Design
Package that do not constitute Update Modifications, and may make such
additional modifications upon receipt of written consent from Novatel
Wireless, which consent shall not be unreasonably withheld, conditioned
or delayed. Subject to the foregoing, Novatel Wireless shall give or
refuse such consent within twenty (20) days of Intel's initial request
(such approved modifications hereafter referred to as "Approved
Modifications"). Intel shall grant to Novatel Wireless a perpetual,
world-wide, license to use, reproduce, display, perform, modify,
distribute and sublicense any such Approved Modifications, at a
consideration and upon appropriate terms and conditions to be negotiated
in good faith by the parties.
(b) Design License Conditions.
(i) Novatel Wireless ceases doing business or exits the
business of developing and manufacturing all of the Products;
(ii) All or substantially all of the assets of Novatel
Wireless are transferred to an assignee for the benefit of
creditors, to a receiver or to a trustee in bankruptcy.
(iii) Novatel Wireless fails in a material respect to provide
Product Support for any Product, and such failure is not
remedied within sixty (60) days of Intel providing written notice
to Novatel Wireless of such failure to provide Product Support.
(c) Restrictions on Use by Intel of Design Package in Event of
Failure of Product Support.
In the event Intel believes that Design License Condition (iii)
in section 5.1(b)(iii) has occurred, Intel shall give written
notice of such event to Novatel Wireless and upon receipt of such
notice, Novatel Wireless shall have sixty (60) days to cure such
alleged breach. During the sixty (60) day period, Intel shall
reasonably cooperate with Novatel Wireless to effect a cure. If,
after sixty (60)
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days, Intel is not satisfied that Novatel Wireless has cured the
alleged breach, Intel shall send notice to Novatel Wireless that
an Escrow Event has occurred and Novatel Wireless shall have two
(2) business days to consent or object to such characterization.
If Novatel Wireless objects to such characterization, the
parties shall submit the matter to a third-party consultant (the
"Consultant") as selected pursuant to Exhibit C-3, hereto. The
parties shall submit arguments and the Consultant shall render a
decision on the matter within ten (10) days after it is referred
to such Consultant. If the Consultant rules that an Escrow Event
has occurred, the Consultant must then also determine, based on
the parties arguments, the appropriate portion of the Design
Package to release from escrow (i.e., that portion required in
order for Intel to provide itself the specific Product Support
which Novatel Wireless failed to provide), and promptly order
the release of such portion of the Design Package. Any use of
the Design Package by Intel for this purpose of replacing failed
Product Support shall be limited to replacement of the failed
Product Support, and any other use by Intel of the released
portion of the Design Package is strictly prohibited.
5.2 License Fee to Novatel Wireless for Design Package: [***]
5.3 Generation and Deposit of Design Package: In support of
Novatel Wireless's obligations under this Section 5,
Novatel Wireless shall generate and deposit the Design
Package into escrow with the escrow agent identified in
Exhibit C-3 pursuant to the terms and conditions of
Exhibit C-3.
5.4 Updates to Design Package: During the term of this Agreement,
Novatel Wireless shall deliver to the escrow agent, or if applicable
make available to Intel, Updates to the Design Package, whether the
Design Package is in escrow or has been accessed by Intel pursuant to
its exercise of the Design Package License. Such Updates shall be
delivered to Intel on a quarterly basis or promptly upon a change in the
Design Package, whichever is more frequent, until Intel notifies Novatel
Wireless in writing that it has permanently ceased distribution of such
Products or upon the discontinuance of such Products by Intel, but in
any event not later than the expiration or termination of this
Agreement. Such Updates may include materials which Intel has reasonably
requested which are not listed in Exhibit C-2.
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8. QUARTERLY REVIEWS, CONTRACT ADMINISTRATION AND CHANGES TO CONTRACT DOCUMENTS.
Intel and Novatel Wireless will meet approximately once per calendar quarter
(each party bearing their own expenses). The content of such quarterly meetings
shall typically include, but not be limited to the following: 1) product roadmap
review; 2) current product development status; 3) sales and inventory of the
Products and 4) identifying additional product areas where other collaborative
efforts may exist. The Parties may also meet on an as-needed basis, in order to
address on-going issues such as support or manufacturing issues.
9. INVENTIONS & OWNERSHIP.
9.1 Pre-existing Intellectual Property Rights. Each Party shall retain
sole and exclusive ownership of and/or unrestricted right to license any
pre-existing Intellectual Property Rights owned by such Party or in
which such Party has an interest.
9.2 Ownership of Intellectual Property Rights in Modification. Except
for Intellectual Property Rights in modifications to the Products made
by Intel solely or in collaboration with others in connection with
Intel's exercise of the Design Package license, which rights shall be
owned by Intel (and which shall be subject to the provisions of 5.1(a)
above), all Intellectual Property Rights in modifications to the
Products developed by the Parties solely or in collaboration with others
in the course of the performance the interoperability testing (as
provided in Section 3.5 of this Agreement), the Implementation Services,
or the Product Support, shall be owned by Novatel Wireless. Intel agrees
to assign (or cause to be assigned) and hereby does assign fully to
Novatel Wireless, all such Intellectual Property Rights. All
Intellectual Property Rights in modifications to any [***]
developed by the Parties solely or in collaboration with others in the
course of the performance of the interoperability testing (as provided
in Section 3.5 of this Agreement), the Implementation Services or the
Product Support, shall be owned by Intel. Novatel Wireless agrees to
assign (or cause to be assigned) and hereby does assign fully to Intel,
all such Intellectual Property Rights. Intellectual Property Rights with
respect to any Additional Consulting Services shall be determined by
mutual agreement of the parties.
9.3 Other Inventions. Except as otherwise provided herein, the Inventing
Party shall own each
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Invention made by its employees, applications filed thereon, and patents
issuing thereon.
9.4 No Other License. Except as explicitly granted in this Agreement,
no other patent license or immunity, or other license or right of any
kind, shall be deemed granted hereunder, at any time to either party,
whether expressly or by implication, estoppel, or otherwise.
9.5 Assignment of Rights. Each party agrees to assist the other, or its
designee, at such other party's expense, in every proper way, to secure
the rights assigned to such other party under Section 9.2 of this
Agreement, including the disclosure to such other Party of all pertinent
information or data with respect thereto and the execution of all
applications, specifications, oaths, assignments, and all other
instruments which such other Party may deem reasonably necessary in
order to apply for and obtain such rights and in order to assign and
convey to such other party, its successors and assigns, the sole and
exclusive rights, title and interest in and to such rights, including
without limitation, in the case of the interoperability testing (as
provided in Section 3.5 of this Agreement), the Certificate of
Originality set forth on Exhibit B-3 and the Assignment of Intellectual
Property set forth in Exhibit B-4. Each Party hereby waives any and all
moral rights, including the right to identification of authorship or
limitation on subsequent modification, that such Party or its employees
has or may have in any rights assigned to the other party under Section
9.2 of this Agreement.
10. CONFIDENTIALITY AND INFORMATION EXCHANGE.
10.1 General Applicability of CNDA. This Agreement and all information
and disclosures made by either Party under this Agreement in writing and
whether or not such information or disclosure is listed on any
Confidential Information Transmittal Record shall constitute
"Confidential Information" as defined in the Parties' Corporate
Nondisclosure Agreement # 698343 dated August 2, 2000, which is attached
to this Agreement as Exhibit G and incorporated in this Agreement in its
entirety ("CNDA"). Except as provided for in this Agreement, neither
Party shall disclose the existence or content of this Agreement without
the prior written consent of the other Party.
10.2 Confidentiality of Terms.
(a) Confidentiality of Terms. Confidential Information (as defined
below) shall not be disclosed by any party hereto to any third
party, including, without limitation, the Securities and
Exchange Commission or any other governmental authority or
regulatory body, except in accordance with the provisions set
forth below. For purposes of this Agreement, the term
"Confidential Information" refers to the following items: (i)
the existence of this Agreement, (ii) the terms and provisions
of this Agreement, and (iii) such other agreements between Intel
and Novatel Wireless that incorporate this section of this
Agreement by reference. "Confidential Information" does not
include information that is publicly filed with the Securities
and Exchange Commission.
(b) Prohibition on Announcements and Other Disclosures. No
announcement or other disclosure (including, without limitation,
any filing with any governmental authority or regulatory body)
regarding any Confidential Information shall be made in a press
release, conference, advertisement, announcement, professional
or trade publication, mass marketing materials, private
placement memorandum, offering circular, prospectus,
registration statement, filing, notice or otherwise without the
prior written consent of each of the parties hereto.
(c) Permitted Disclosures. Notwithstanding the foregoing, (i) any
party may disclose any of the Confidential Information to its
senior management, employees, investment bankers, lenders,
accountants and attorneys, in each case only where such persons
or entities have a reasonable need to know such information and
are under appropriate nondisclosure obligations; and (ii) Intel
may disclose its investment in Novatel Wireless and other
Confidential Information to third parties or to the public at
its sole discretion and, if it does so, Novatel Wireless shall
have the right to disclose to third parties any such information
disclosed in a press release or other public announcement by
Intel.
(d) Legally Compelled Disclosure. Subject to the terms and
conditions of Intel's Consent of even date herewith, in the
event that Novatel Wireless is requested or is legally required
or becomes legally compelled (or reasonably believes it is
legally required or compelled) by any governmental authority or
regulatory body (including, without limitation, the Securities
and Exchange Commission) or by statute or regulation or by oral
questions, interrogatories, requests for
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information or documents, subpoena, criminal or civil
investigative demand or similar process, including, without
limitation, in connection with any public or private offering of
Novatel's capital stock to disclose any Confidential Information
relating to the terms and conditions of this Agreement, Novatel
Wireless shall disclose only that portion of the Confidential
Information that Novatel Wireless is legally required to
disclose. The Company will not file this Agreement with any
governmental authority or regulatory body, or disclose the
identity of Intel or any other Confidential Information in any
manner except as permitted above and Intel hereby consents to
such disclosure if it is in the manner permitted above.
(E) Other Information. The provisions of this Section 10.2 shall be
in addition to, and not in substitution for, the provisions of
any separate nondisclosure agreement executed by any of the
parties hereto with respect to the transactions contemplated
hereby. Disclosures and exchange of confidential information
between the Company and Intel not covered by this Section 10 or
any other nondisclosure agreement executed by the parties
hereto, shall be governed by the terms of the Corporate
Non-Disclosure Agreement No. 6983494, dated August 2, 2000,
executed by Novatel Wireless and Intel, and any Confidential
Information Transmittal Records provided in connection
therewith.
11. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants that it
has all rights necessary to enter into this Agreement and that there exist no
prior commitments or other obligations which prevent such Party from making all
of the grants and undertakings provided for in this Agreement. Further, Novatel
Wireless represents and warrant that it has not, as of the Effective Date,
received any notice from a third party alleging that any of the Products,
Product Software, the Design Package or the Manufacturing Package, respectively,
infringe or violate any Intellectual Property Rights of such third party.
11.1 Novatel Wireless's Warranties. In addition, Novatel Wireless makes
the following warranties regarding the Design Package and the Manufacturing
Package furnished hereunder, which warranties shall survive any delivery of such
Design Package or Manufacturing Package:
(a) the Manufacturing Package contains all the documents and other items
sufficient in detail and comprehensiveness to permit the commercially reasonable
manufacture of the Products by a manufacturer with reasonable background and
experience such that functional test yield of *** is achieved for Products that
meet the specifications set forth in Exhibit A and the Quality Requirements of
Exhibit E.
(b) the Design Package contains all the documents and other items
sufficient in detail and comprehensiveness necessary to permit the commercially
reasonable design, maintenance and support of the Products by a wireless product
designer with reasonable background and experience.
(c) Novatel Wireless has the necessary right, title, and interest to
license the Design Package and the Manufacturing Package to Intel (Except with
respect to any TTP Com Software included in either the Design Package or the
Manufacturing Package), and the Design Package and the Manufacturing Package
will be free of financial or security interest liens and encumbrances subject to
a general first lien on all of Novatel Wireless's assets by financial
institutions with which Novatel Wireless has loans outstanding.
11.2 Intel Warranty.
Intel warrants that upon exercise of the license to the Manufacturing
Package or the Design Package, it will have all necessary license rights from
TTPCom with respect to TTP Com Software in order to be able to be able to use
the TTP Com Software as integrated in or with Products manufactured in
accordance with the terms of the manufacturing license in Section 4.1 and the
design license in Section 5.1.
12. INTELLECTUAL PROPERTY INDEMNIFICATION.
12.1 Indemnity Regarding Packages. Novatel Wireless agrees to defend,
indemnify, and hold Intel harmless against any loss, cost, liability,
and expense (including reasonable attorneys' fees) arising from any
action or claim brought or threatened against Intel alleging that any of
the Manufacturing Package or the Design Package, or any product
manufactured in accordance with Novatel Wireless's specifications using
such Manufacturing Package or Design Package (collectively, the
"Indemnified Items") infringe any patent, copyright, trademark, trade
secret, or other intellectual property right of any third party. Intel
agrees to provide Novatel Wireless with (i) prompt written notice of
such claim or action, (ii) the
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omitted portions.
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opportunity to control the defense or settlement of such claim or
action, and (iii) reasonable information and assistance in the defense
and/or settlement any such claim or action. Notwithstanding the
foregoing, if Novatel Wireless controls the defense, Intel shall be
permitted to participate in the defense at Intel's sole option and
expense. Novatel Wireless further agrees that if Novatel Wireless fails
to defend Intel in a timely and proper manner, Intel shall be permitted
to assume control of the defense and settlement of the claim, all at
Novatel Wireless's cost and expense. Intel shall not enter into any
settlement or compromise any claim without Novatel Wireless's prior
written consent, which shall not be unreasonably withheld, conditioned,
or delayed. In the event that any Indemnified Item is held to constitute
such an infringement, Novatel Wireless, at its expense, may, at it's
sole option either (i) obtain for Intel or its customers the right to
continue to use such Indemnified Item as contemplated herein, (ii)
modify such Indemnified Item so that it becomes non-infringing, but
without materially altering its functionality, or (iii) replace such
Indemnified Item with a functionally substantially equivalent
non-infringing Indemnified Item. Regardless of which of the foregoing
remedies is effected, Novatel Wireless shall pay to Intel reasonable
rework expenses and reasonable incremental cost incurred by Intel to
procure alternative products reasonably required to fill orders placed
by Intel and accepted by Novatel Wireless as of the effective date of
the injunction relative to an Indemnified Item.
12.2 Indemnification Obligation for Products. Novatel Wireless shall
indemnify and hold Intel harmless from any costs, expenses (including
reasonable attorneys' fees), losses, damages, or liabilities incurred
because of actual or alleged infringement of any patent, copyright,
trade secret, trademark, maskwork, or other intellectual property right
arising out of the use or sale by Intel or Intel's customers of Products
or Intel's products manufacturing using the Product(s) or containing or
integrated with the Products(s), except as otherwise provided in Section
12.3 of this Agreement. Intel shall notify Novatel Wireless of such
claim or demand and shall permit Novatel Wireless to participate in the
defense or settlement thereof. If an injunction issues as a result of
any claim or action, Novatel Wireless agrees at its expense and sole
option to either: (i) procure for Intel and Intel's customers the right
to continue using the Products; (ii) replace them with non-infringing
Products; (iii) modify them so they become non-infringing; or if Intel,
in its sole discretion determines that the previous remedies are
commercially unreasonable (iv) refund to Intel the amount paid for any
Products returned to Novatel Wireless or destroyed. Regardless of which
of the foregoing remedies is effected, Novatel shall pay to Intel
reasonable rework expenses and reasonable incremental cost incurred by
Intel to procure alternative products reasonably required to fill orders
placed by Intel and accepted by Novatel as of the effective date of the
injunction against the Products.
12.3 Limitations. Notwithstanding the foregoing, Novatel Wireless
assumes no liability for infringement claims arising from (i) the
combination of an Product with other products not provided by Novatel
Wireless where such claim would not have arisen but for such
combination, (ii) any modification or alteration of such Product not
made by or under the authority of Novatel Wireless, where such
infringement would not have occurred but for such modifications or
alterations, or (iii) any use of the Products other than as permitted by
this Agreement where such claim would not have occurred but for such
use.
12.4 Intel Indemnification Obligation for Intel Products that contain
Products. Intel shall indemnify and hold Novatel Wireless harmless from
any costs, expenses (including reasonable attorneys' fees), losses,
damages, or liabilities incurred because of actual or alleged
infringement of any patent, copyright, trade secret, trademark,
maskwork, or other intellectual property right arising out of: 1)
Intel's or Intel Manufacturers' manufacture of Products under the
manufacturing license granted under Section 4.1 or the design license
granted under Section 5.1 which do not comply to Novatel Wireless
specifications where such claim would not have occurred but for such
non-compliance; or 2) the combination of a Product with other products
not provided by Novatel Wireless where such claim would not have arisen
but for such combination. Novatel Wireless agrees to provide Intel with
(i) prompt written notice of such claim or action, (ii) the opportunity
to control the defense or settlement of such claim or action, and (iii)
reasonable information and assistance in the defense and/or settlement
any such claim or action.
13. AUDIT
The Parties, and Intel Manufacturers shall maintain complete and
accurate accounting, manufacturing, Shipping and salesrecords, in
accordance with generally acceptable accounting practices, to support
and document all compliance with (i) Novatel Wireless's obligations
under this agreement related to the most
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favored customer pricing requirements set forth in this Agreement, (ii)
the calculation and payment of royalties by Intel to Novatel Wireless
under this Agreement (iii) the services performed by Novatel Wireless
under this Agreement, and (iv) the occurrence of any *** Termination
Event. Such records, as they pertain to accrual of payments, shall be
retained for a period of at least three years after the accrual of the
payments resulting from such obligations, all other records shall be
kept for two (2) years following termination of the Agreement, Each
Party shall, upon written request, during normal business hours, but not
more frequently than once each calendar year (and in the event of an
occurrence of an *** Termination Event), provide access to such
accounting to an independent accounting firm chosen by the Party being
audited and compensated by the requesting Party, for purposes of an
audit. Such accounting firm shall be required to sign an agreement
protecting the audited Party's Confidential Information, as defined in
Section 10, and shall be authorized to report only the compliance with
the above-mentioned provisions. The Parties agree that if a discrepancy
of more than five percent (5%) is found in such audit then the audited
Party shall pay for the costs of the audit if an underpayment occurred.
If there is a five percent (5%) or more overpayment found, the Parties
shall each pay half of the cost of the audit. Any underpayment or
overpayment amount shall be paid to the appropriate Party within thirty
(30) days of the date of any audit report. The Parties also agree that
where the audited Party is found to be in non-compliance with the terms
of this Agreement, the audited Party shall bear the cost of the audit.
Novatel Wireless shall, upon reasonable notice to Intel, have the right
to have an independent auditor chosen by Intel and and compensated by
Novatel Wireless, inspect and investigate the compliance of Intel and
Intel Manufacturers with the substantive, non-monetary provisions
relating to the manufacturing license and the design license as set
forth in Section 4.1 and Section 5.1, respectively. Such auditing firm
shall be required to sign an agreement protecting Intel's Confidential
Information, as defined in Section 10, and shall be authorized to report
only the compliance with the above-mentioned provision. If Intel is
found to be in material non-compliance with such license provisions,
Intel shall bear the costs of the audit.
14. ***
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***
15. TERM AND TERMINATION.
15.1 Stated Term of Agreement. Unless sooner terminated under the
provisions of this Section 15 the term of the Agreement begins on the
Effective Date and expires five (5) years thereafter.
15.2 Termination of the Agreement For Cause. Either Party shall have the
right to terminate this Agreement if the other Party fails to cure a
material breach of the terms of this Agreement within forty-five (45)
days of receipt of written notice thereof from the non-breaching Party.
15.3 Survival. Upon expiration or termination of this Agreement the
following Sections of this Agreement shall survive and continue in
effect: 2.1 (but only as provided therein), 2.2 (but only as provided
therein) 2.3 (but only to the extent Section 2.1 and 2.2 survive), 5.1
(but only as provided therein), 15.3 and 18.1 and Articles 9, 10, 11,
12, 13, 14 (but only as provided therein), and 16. Upon expiration or
termination of this Agreement, each Party shall: (i) return the
Confidential Information of the other Party to such Party except such
Confidential Information as is necessary to provide support services to
existing customers; and (ii) have the right to ship and sell Products in
Intel's inventory subject to the payment of royalties to Novatel
Wireless as provided in Section 4.3. In addition, upon termination of
this Agreement the Design and Manufacturing Packages held in escrow, if
any, shall be immediately released to Novatel Wireless.
16. LIMITATION OF LIABILITIES.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY, END USERS
OR ANY OTHER THIRD PARTY, FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY,
AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. ANY LIABILITY OF either party ARISING OUT OF THIS AGREEMENT SHALL IN NO
CASE EXCEED THE GREATER OF (A) three TIMES THE TOTAL AMOUNT OF PAYMENTS RECEIVED
BY NOVATEL WIRELESS FROM INTEL UNDER THIS AGREEMENT AND (B) fifteen million
dollars, except that NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO LIMIT
either party's liability for personal injury (including bodily injury), death,
physical damage to property or ANY INDEMNITY PROVIDED BY either party to the
other UNDER Section 12 of THIS AGREEMENT.
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omitted portions.
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17. ADDITIONAL COLLABORATION
Novatel Wireless and Intel will engage in the following technical
collaboration:
a) Novatel Wireless, in consultation with and support from Intel,
will provide all personnel, resources, and IP to complete the
work described in the statement of work attached in Exhibit J-1,
also referred to as Phase 1b. The parties recognize that they
have not set forth in full detail all technical aspects of the
statement of work attached in Exhibit J-1. Upon execution of
this agreement, the parties will complete this statement in
reasonable detail. If the parties are unable for any reason to
agree on such details within sixty (60) calendar days following
the effective date, Novatel Wireless will in good faith perform
the work as presently described with a goal of making Novatel
Wireless technology work as well on platforms targeted in the
statement of work attached as Exhibit J-1 as on any other
silicon, board or system architecture.
b) Novatel Wireless presently intends to perform the work described
in the statements of work set forth in Exhibits J-2 also
referred to as Phase 2. The parties recognized that they have
reached full agreement upon the advisability or the scope of
this work. Upon execution of this agreement, Novatel Wireless
will in good faith agree with Intel on this scope of this work.
If the parties are unable for any reason to agree on such
details within ninety (90) calendar days following the effective
date, Novatel Wireless will in good faith perform the work as
presently described with a goal of making Novatel Wireless
technology for Software Reconfigurable Radios work on Intel
Silicon.
c) Assuming the success of Phase 2 technology development (as
mutually defined and agreed to by both companies), the
productization of such technology will be undertaken as set
forth in Exhibit J-3 also referred to as Phase 2b. The parties
recognized that they have reached full agreement upon the
advisability or the scope of this work - given that the Phase 2
technology achieves its performance and cost targets. Upon
execution of this agreement, Novatel Wireless will in good faith
agree with Intel on the next level of details for this phase. If
the parties are unable for any reason to agree on such details
within 365 calendar days following the effective date, the high
level terms set forth in the current exhibit will continue to
remain in effect - unless mutually agreed to in writing between
the two companies.
18. GENERAL.
18.1 Notice. Unless otherwise agreed to by the Parties, all notices
required under this Agreement shall be deemed effective when received
and made in writing by either (i) registered mail, (ii) certified mail,
return receipt requested, or (iii) overnight mail, addressed and sent to
the attention:
INTEL: Intel Corporation
2111 N.E. 25th Avenue
MS JF3-147
Hillsboro, Oregon 97124-6497
Attn: General Counsel
With a copy of non-technical notices to
Intel Corporation
2111 N.E. 25th Avenue
MS JF3-147
Hillsboro, Oregon 97124-6497
Attn: Post Contracts Management
Novatel Wireless: Novatel Wireless, Inc.
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9360 Towne Centre Drive
Suite 110
San Diego, California 92121
Attn: Bruce Gray, Senior Vice President of Sales
and Marketing.
Each Party may designate another address for notices hereunder
in a written notice to the other from time to time.
18.2 Construction.
(1) Headings. The headings of this Agreement are provided
for reference only and shall not be used as a guide to
interpretation.
(2) Order of Precedence. In the event of inconsistency
between or among the various Agreement documents, the
following order of precedence shall govern
interpretation:
(a) The Statement of Work, solely as to its subject
matter;
(b) This document and its Exhibits other than the
Statement of Work and the Purchase Order; and
(c) Purchase Orders and Invoices.
18.3 Independent Contractor. Each Party is and shall remain an
independent contractor with respect to all performance rendered pursuant
to the Agreement documents. Neither Party nor any employee thereof shall
be considered an employee or agent of the other Party for any purpose
and shall have no authority to bind or make commitments on behalf of
such other Party for any purpose and shall not hold itself or themselves
out as having such authority. In performing Services under this
Agreement, Novatel Wireless is an independent contractor and its
personnel and other representatives shall not act as nor be agents or
employees of Intel. As an independent contractor, Novatel Wireless will
be solely responsible for determining the means and methods for
performing the required Services. Novatel Wireless shall have complete
charge and responsibility for personnel employed by Novatel Wireless.
18.4 Independent Development. Except as set forth in Section 2.4, this
Agreement does not preclude Intel or Novatel Wireless from evaluating,
acquiring from third parties not a party to this Agreement,
independently developing or marketing similar technologies or products
to the Products, or making and entering into similar arrangements with
other companies. Neither Party is obligated by this Agreement to make
such products or technologies available to the other.
18.5 Compliance with Laws. Each Party shall, at its own expense, comply
with any governmental law, statute, ordinance, administrative order,
rule or regulation relating to its duties, obligations and performance
under this Agreement and shall procure all licenses and pay all fees and
other charges required thereby.
18.6 Export of Technical Data. The Parties shall not, nor shall they
authorize or permit their employees, agents or subcontractors to, export
or re export any Deliverable or Products, any technical information, or
any process, product or service that is produced under this Agreement to
any country specified as a prohibited destination in applicable
national, state and local laws, regulations and ordinances, including
the Regulations of the U.S. Department of Commerce and/or the U.S. State
Department, without first obtaining government approval.
18.7 Taxes. Except as otherwise set forth in Section 4 of Exhibit B,
each Party shall have sole responsibility for the payment of all taxes
and equivalents and duties imposed by all governmental entities, as they
pertain to its duties, obligations and performance under this Agreement,
without reimbursement for tax liability, penalty, or interest, assessed
upon either Party.
18.8 Dispute Resolution. All disputes arising directly under the express
terms of this Agreement or the grounds for termination thereof shall be
resolved as follows: The senior management of both parties shall
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meet to attempt to resolve such disputes. If the disputes cannot be
resolved by the senior management, either party may make a written
demand for formal dispute resolution and specify therein the scope of
the dispute. Within thirty (30) days after such written notification,
the parties agree to meet for one (1) day with an impartial mediator and
consider dispute resolution alternatives other than litigation,
including referral to the National Patent Board. If an alternative
method of dispute resolution is not agreed upon within thirty (30) days
after the one day mediation, either party may begin litigation
proceedings.
18.9 Force Majeure. Neither Party shall be held liable for failure to
fulfill its obligations other than payment obligations under this
Agreement, if the failure is caused by flood, extreme weather, fire, or
other natural calamity, acts of governmental agency, or similar causes
beyond the control of such party, and the term for performance shall be
increased to a reasonable period of time.
18.10 Assignment. Neither party may assign or otherwise transfer its
rights or obligations under this Agreement without prior written consent
of the other party, which shall not be unreasonably withheld,
conditioned or delayed; provided that Intel may assign this Agreement to
a successor in interest, by merger, operation of law, or by assignment,
purchase or otherwise of the particular business or substantially all of
the assets of the particular business within Intel to which this
Agreement relates, without Novatel Wireless's consent. A change of
control shall not be considered a transfer or assignment under this
Section 18.10. Any attempt by either party to assign or delegate any
rights, duties or obligations set forth in this Agreement without the
other party's prior written consent , except as permitted herein, shall
be deemed a material breach of this Agreement and shall be null and
void. Except as provided above, the terms and conditions of this
Agreement shall bind and enure to the benefit of each party's successors
and assigns.
18.11 Governing Law, Jurisdiction and Venue. Any claim arising under or
relating to this Agreement shall be governed by the internal substantive
laws of the State of Delaware or federal courts located in Delaware,
without regard to principles of conflict of laws. Each party hereby
agrees to jurisdiction and venue in the courts of the State of Delaware
for all disputes and litigation arising under or relating to this
Agreement. This provision is meant to comply with 6 Del. C. Section
2708(a). The provisions of the United Nations Convention on Contracts
for the International Sale of Goods shall not apply to this Agreement.
The parties agree that the predominance of this Agreement is the sale of
goods, and agree that the Delaware version of the Uniform Commercial
Code, Article 2, shall be applicable to this Agreement.
18.12 No Other Rights. This Agreement shall not be construed to grant
any rights by implication, estoppel, or otherwise, that are not granted
through its express provisions.
18.13 Severability. The terms and conditions stated herein are declared
to be severable. If any paragraph, provision, or clause in this
Agreement shall be found or be held to be invalid or unenforceable in
any jurisdiction in which this Agreement is being performed, the
remainder of this Agreement shall be valid and enforceable and the
parties shall use good faith to negotiate a substitute, valid and
enforceable provision which most nearly effects the parties' intent in
entering into this Agreement.
18.14 Waiver. Failure by either party to enforce any term of this
Agreement shall not be deemed a waiver of future enforcement of that or
any other term in this Agreement or any other agreement that may be in
place between the parties
18.15 Entire Agreement. The terms and conditions of this Agreement,
including its exhibits, constitutes the entire agreement between the
parties with respect to the subject matter hereof, and merges and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions. Neither of the parties shall be bound by
any conditions, definitions, warranties, understandings, or
representations with respect to the subject matter hereof other than as
expressly provided herein. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. No oral explanation
or oral information by either party hereto shall alter the meaning or
interpretation of this Agreement. No amendments or modifications shall
be effective unless in a writing signed by authorized representatives of
both parties. These terms and conditions will prevail notwithstanding
any different, conflicting or additional terms and conditions which
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may appear on any purchase order, acknowledgment or other writing not
expressly incorporated into this Agreement. This Agreement may be
executed in two (2) or more counterparts, all of which, taken together,
shall be regarded as one and the same instrument. The following exhibits
are attached hereto and incorporated herein:
Exhibit A: Product Definition and Specifications
Exhibit B: Purchasing Terms
Exhibit B-1: Product and Services Pricing; Statements of Work
Exhibit B-2: Intentionally Omitted
Exhibit B-3 Certificate of Originality
Exhibit B-4 Assignment of Intellectual Property
Exhibit C-1: Manufacturing Package
Exhibit C-2: Design Package
Exhibit C-3: Escrow Provisions
Exhibit D: Support and Training Requirements
Exhibit E: Quality Assurance Requirements
Exhibit F: Intentionally Omitted
Exhibit G: Executed CNDA
Exhibit H: Interoperability Statement of Work
Exhibit I: Intentionally Omitted
Exhibit J-1: Phase 1b Statement of Work
Exhibit J-2: Phase 2 Collaboration
Exhibit J-3: Phase 3b Collaboration
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18.16 Marketing Collaboration. In the event Intel chooses to brand the
products with an Intel brand, rather than co-brand the Products, the
parties shall discuss in good faith opportunities for joint
participation in trade shows and other joint marketing opportunities.
IN WITNESS WHEREOF the Parties, through their respective duly authorized
representatives, hereby execute this Agreement on the Effective Date.
INTEL CORPORATION NOVATEL WIRELESS, INC.
By: /s/ ANGELA BIEVER By: /s/ BRUCE GRAY
---------------------------------- ----------------------------------
Printed Name: Angela Biever Printed Name: Bruce Gray
------------------------ ------------------------
Title: General Manager, NBI Title: Senior Vice President,
------------------------------- Sales and Marketing
-------------------------------
Date: October 23, 2000 Date: October 23, 2000
-------------------------------- --------------------------------
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EXHIBIT A
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[NOVATEL WIRELESS LOGO]
EXHIBIT A-1
EXHIBIT A-1
PRODUCT SPECIFICATIONS
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[NOVATEL WIRELESS LOGO]
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[NOVATEL WIRELESS LOGO]
***
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[NOVATEL WIRELESS LOGO]
***
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[NOVATEL WIRELESS LOGO]
***
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omitted portions.
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[NOVATEL WIRELESS LOGO]
***
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Exhibit A-6
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EXHIBIT B
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EXHIBIT B
TERMS AND CONDITIONS OF PURCHASE AGREEMENT - GOODS AND SERVICES
1. DEFINITIONS. The following terms shall have the meanings ascribed to
them for the purpose of the Agreement.
A. "Hazardous Materials" are or contain dangerous goods, chemicals,
contaminants, substances, pollutants, or any other materials that are
defined as hazardous by relevant local, state, national, or
international law, regulations, and standards.
B. "Purchase Order" is Intel's document setting forth specific Services to
be rendered and/or specific Products ordered, and Release information.
C. "Release" means Intel's authorization for Novatel Wireless to provide
the Services and/or to ship a definite quantity of Products to a
specified schedule. The Release is contained in the Purchase Order sent
to Novatel Wireless.
D. "Service(s)" means the additional consulting services to be performed by
Novatel Wireless as set forth in Section 3.4 of the Agreement and the
interoperability testing services set forth in Section 3.5 of the
Agreement.
2. DELIVERY AFTER EXPIRATION
At Intel's option, Products may be scheduled for delivery up to six (6)
months following expiration of the Agreement.
3. PRICING
A. Except as set forth in Exhibit B-1, Pricing for the Products and
Services shall be in accordance with Exhibit B-1 for the duration of
this Agreement. The parties may substitute a revised Exhibit B-1 at any
time by each signing a dated copy that shall from such date be the
effective Exhibit B-1. At Intel's request, Services shall be provided in
accordance with a Statement of Work in the form specified in Exhibit B-1
B. In consideration for including the Products exclusively in the reference
design for the ***, the price charged Intel for any Product or Service
shall always be Novatel Wireless's *** for that Product or equivalent
Service regardless of any special terms, conditions, rebates, or
allowances of any nature (hereinafter "***"), provided that the price
charged by Novatel Wireless for *** and *** shall be *** of such price.
If Novatel Wireless sells any Product or Service to any customer at a
price *** that set forth herein, Novatel Wireless shall adjust its price
to the *** for any un-invoiced Products or Service and for all future
invoices for such Product or Service. Each of the above adjustments
shall be calculated from the date Novatel Wireless first sells the
Product or Service at the ***.
C. In the event Novatel Wireless offers ***, either as a general *** or
only to *** for any reason, Novatel Wireless shall immediately inform
Intel of this price and price protect Intel's inventory of affected
Products or Service by *** to Intel an amount equal to *** by Intel and
the *** Products pulled into Intel's manufacturing process for
consumption or Service retroactive to the date the Novatel Wireless
first sells the Product or Service at a lower price.
D. Intel may return up to *** of its inventory of Products purchased from
Novatel Wireless during the previous ninety (90) days in unopened,
original, individual Product packaging for a credit against any future
Novatel Wireless invoices.
E. All applicable taxes, including but not limited to sales/use taxes,
transaction privilege taxes, gross receipts taxes, and other charges
such as duties, customs, tariffs, imposts, and government imposed
surcharges shall be stated separately on Novatel Wireless's invoice.
Novatel Wireless shall remit all such charges to the appropriate tax
authority unless Intel provides sufficient proof of tax exemption. In
the event that Intel is prohibited by law from making payments to
Novatel Wireless unless Intel deducts or withholds taxes therefrom and
remits such taxes to the local taxing jurisdiction, then Intel shall
duly withhold such taxes and shall pay to Novatel Wireless the remaining
net amount after the taxes have been withheld. Intel shall not reimburse
Novatel Wireless for the amount of such taxes withheld. When property is
delivered and/or services are provided or the benefit of services occurs
within jurisdictions in which Novatel Wireless collection and remittance
of taxes is required by law, Novatel Wireless shall have sole
responsibility for payment of said taxes to the appropriate tax
authorities. In the event Novatel Wireless does not collect tax from
Intel, and is subsequently audited by any tax authority, liability of
Intel will be limited to the tax assessment, with no reimbursement for
penalty or interest charges. Each party is responsible for its own
respective income taxes or taxes based upon gross revenues, including
but not limited to business and occupation taxes.
F. Additional costs will not be reimbursed without Intel's prior written
approval.
4. INVOICING AND PAYMENT
A. Intel shall make payment within *** days of Intel's receipt of the
proper original invoice or Intel's receipt of Products or performance of
Services, whichever is later. Payment is made when Intel's check is
mailed or EDI funds transfer initiated.
B. Original invoices or packing lists shall be submitted and shall include:
purchase agreement number from the Purchase Order, Purchase Order
number, line Product number, Release number, part number, complete bill
to address, description of Products, quantities, unit price, extended
totals, and any applicable taxes or other charges. All costs forwarded
to Intel for reimbursement of expenses agreed under the terms of this
Agreement shall be net of any reclaimable Value Added Taxes ("VAT")
incurred on such expenses. Intel's payment shall not constitute
acceptance.
C. Novatel Wireless shall be responsible for and shall hold Intel harmless
for any and all payments to its vendors or subcontractors utilized in
performing the Services.
D. Novatel Wireless agrees to invoice Intel no later than one hundred
eighty (180) days after completion of Services or shipment of Products.
Intel will not be obligated to make payment against any invoices
submitted after such period.
5. TERMINATION FOR CONVENIENCE
A. Subject to Section 2.4 of the Agreement (Exclusivity), Intel may
terminate any Purchase Order or Release issued, or any part thereof, at
any time for its sole convenience by giving written notice of
termination to Novatel Wireless. Upon Novatel Wireless's receipt of such
notice, Novatel Wireless shall, unless otherwise specified in such
notice, immediately stop all work hereunder and give immediate written
notice to and cause all of its suppliers or subcontractors to cease all
related work.
B. There shall be no charges for termination of orders for Products or
Services not yet provided. Intel will be responsible for payment of
authorized Services and Products already provided by Novatel Wireless,
but not yet invoiced. Notwithstanding anything to the contrary, Novatel
Wireless shall not be compensated in any way for any work done after
receipt of Intel's notice, nor for any costs incurred by Novatel
Wireless's vendors or subcontractors after Novatel Wireless gives them
notice of termination, nor for any costs Novatel Wireless could
reasonably have avoided. Novatel Wireless will be responsible to
immediately notify its relevant suppliers of any relevant termination
pertaining to this agreement.
C. Notwithstanding anything else in the Agreement, failure to meet the
delivery date(s) in the Purchase Order shall be considered a material
breach of contract and shall allow Intel to terminate the order for the
Product and/or any subsequent Releases in the Purchase Order without any
liability.
D. Novatel Wireless may terminate any Purchase Order or Release issued, or
any part thereof, by providing Intel written notice of termination upon
the occurrence of any of the following events:
(a) Intel materially breaches its payment obligations under this
Agreement, unless such failure is cured within sixty (60) days from receipt of
written demand for such payment.
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(b) Intel materially breaches any material provision of this Agreement
and fails to institute reasonable efforts to cure such material breach within
sixty (60) days from receipt of written notice describing the breach. This
section in no way limits Novatel Wireless's rights to terminate the Agreement
pursuant to Section 15 thereof.
6. CONTINGENCIES
Neither party shall be responsible for its failure to perform due to
causes beyond its reasonable control, such as acts of God, fire, theft,
war, riot, embargoes or acts of civil or military authorities. If
delivery of Products or performance of Services are to be delayed by
such contingencies, Novatel Wireless shall immediately notify Intel in
writing and Intel may either: (i) extend time of performance; or (ii)
terminate all or part of the uncompleted portion of the Purchase Order
at no cost to Intel.
7. DELIVERY, RELEASES, AND SCHEDULING
A. Any forecasts provided by Intel are non-binding forecasts that are made
for planning purposes only and do not constitute a Release or other
commitment by Intel. Within *** following execution of this Agreement,
Intel shall furnish Novatel Wireless with a forecast ("Estimated Product
Forecast"), estimating on at least a monthly basis, the quantity of each
type of Products that Intel may purchase during the succeeding ***
period and the desired date therefor ("Delivery Date"). Thereafter, on
or before the first day of each calendar month, and at such other time
as appropriate in the event forecasts are more frequent than monthly,
Intel shall provide Novatel Wireless with an updated forecast for the
succeeding *** period. Novatel Wireless will use its commercially
reasonable efforts to ensure that supply of Products is available
consistent with Intel's forecasts, as updated, but Intel will have no
liability for any differences between the Estimated Product Forecast and
the actual Product volume ordered by Intel in any Purchase Order
Release.
B. All Purchase Orders placed by Intel under this Agreement shall reference
this Agreement and shall be governed only by the terms and conditions of
this Agreement. The terms and conditions of any Purchase Order, or any
other document submitted by Intel, which conflicts with or in any way
purports to amend this Agreement are hereby specifically objected to and
shall be of no force or effect, unless the same refers to this
Agreement, is agreed to in writing by an authorized officer of Novatel
Wireless and an authorized representative of Intel. Intel shall submit
in writing firm Purchase Orders which cover the Products Intel is
purchasing and identify (i) the desired Products, (ii) desired quantity,
(iii) requested delivery dates, (iv) destinations of each Product
ordered per shipment and (v) desired method of transportation.
C. Novatel Wireless shall notify Intel in writing within four (4) business
days of receipt of Intel's Purchase Order if Novatel Wireless is unable
to make any scheduled delivery and shall state the reasons therefor. The
absence of such notice constitutes acceptance of the Purchase Order and
commitment to the Release terms.
D. Novatel Wireless shall deliver Products per the Release schedule and
Intel may return non-conforming shipments at Novatel Wireless's risk and
expense.
E. Novatel Wireless shall promptly perform Services as scheduled or shall
promptly notify Intel if unable to perform any scheduled Services and
shall state the reasons.
F. Intel may reschedule any Release in whole or in part prior to the
Release date at no additional charge.
G. Intel may place any portion of a Release on hold by notice that shall
take effect immediately upon receipt. Releases placed on hold will be
rescheduled or terminated in accordance with Section 5 within a
reasonable time.
H. Intel shall have no obligation with respect to the purchase of Products
or Services under this Agreement until such Products are specified in an
issued Purchase Order that contains specific Release dates for specific
Products and, for Products, the other information set forth in Section
7.B.
I. If for any reason Novatel Wireless discontinues the manufacture of any
Product during the term of this Agreement or within one (1) year after
the final delivery under this Agreement, Novatel Wireless shall give
Intel at least twelve (12) months prior written notice of such Product
discontinuance, during which time Intel shall have the option to place a
final Release for such Products for delivery to Intel within an agreed
upon period. If any warranty return claims are made for such
discontinued Products, then such returns will be subject to the warranty
provisions in Section 8.
J. During the term of the Agreement, Novatel Wireless will fulfill Intel's
requirements for the Products prior to supplying any third party with
Products or Substitutable Products. In addition, Novatel Wireless will
fulfill Intel's Purchase Order for Products within *** weeks of
receiving such Purchase Order, provided that such Purchase Order does
not exceed the most recent forecast, and will fulfill any amount by
which the Purchase Order exceeds the most recent forecast (up to ***),
within *** weeks of receiving Intel's Purchase Order.
8. INSPECTION, ACCEPTANCE AND WARRANTY
A. Intel may inspect and test all Products at reasonable times before,
during, and after manufacture. If any inspection or test is made on
Novatel Wireless's premises, Novatel Wireless shall provide reasonable
facilities and assistance for the safety and convenience of Intel's
inspectors in such manner as shall not unreasonably hinder or delay
Novatel Wireless's performance. All Products and Services shall be
received subject to Intel's inspection, testing, approval, and
acceptance at Intel's premises (provided that such inspection, testing,
approval and acceptance is not to exceed a period of ten (10) days)
notwithstanding any inspection or testing at Novatel Wireless's premises
or any prior payment for such Products or Services. All products not
rejected by Intel within ten (10) days will be deemed accepted by Intel.
Products or Services rejected by Intel as not conforming to this
Agreement or Product specifications (including without limitation the
Product Specifications set forth in Exhibit A of the Agreement), whether
provided by Intel or furnished with the Product, may be returned to
Novatel Wireless and in accordance with the terms of this Section at
Novatel Wireless's risk and expense , at Intel's request, shall
immediately be repaired or replaced.
B. Novatel Wireless makes the following warranties regarding Products and
Services furnished hereunder, which warranties shall run from the date
of acceptance of Products or Services by Intel and which shall survive
any delivery, inspection, acceptance, payment, or resale of the
Products:
(i) Novatel Wireless has the necessary right, title, and interest to
provide said Products and Services to Intel, and the Products
will be free of liens and encumbrances;
(ii) Products are new, and of the grade and quality specified;
(iii) Products and Services are free from defects in workmanship and
material, conform to all samples, drawings, descriptions, and
specifications furnished or published by Novatel Wireless, and
to any other agreed-to specifications, including without
limitation the Product Specifications set forth in Exhibit A of
the Agreement. This warranty does not extend to (1) defects,
errors, or nonconformities in a Product due to use other than in
accordance with Novatel Wireless's specifications and (2)
defects, errors or nonconformities in the Product due to
modifications, alterations, additions or changes in the Product
not permitted by this Agreement.
(iv) Products conform to the manufacturing quality provisions set
forth in Exhibit E of the Agreement;
(v) Novatel Wireless has all necessary rights, title, and interest
to grant the rights set forth herein to Intel, free of any
claims, liens, or conflicting rights in favor of any third
party;
(vi) The Product Software licensed in this Agreement is free from
significant programming errors and defects in workmanship and
materials, and substantially complies with functionality and
performance set forth in Novatel Wireless's published
specifications and the specifications set forth in Exhibit A of
the Agreement;
(vii) The Product Software contains no disabling code and is free from
any viruses at the time of delivery to Intel;
C. If Novatel Wireless breaches any of the foregoing warranties, or
Products (including the Product Software) or Services are otherwise
defective or non-conforming, during a period of two (2) years after
Intel's acceptance of Products or Services, Novatel Wireless shall,
promptly repair or replace, such Products and Services. Novatel Wireless
shall bear the cost of shipping and
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shall bear the risk of loss of all defective or non-conforming Products
while in transit.
D. During the warranty period, Intel may give Novatel Wireless written
notice of any defect, deficiency or non-conformance of any Product or
Services, or parts thereof. Novatel Wireless shall, at no cost to Intel,
and with the "Turn-Around Time" defined in Section 8(E), repair or
replace such Products or provide such Services, provided, however, with
respect to Products, that the Products have been maintained in
accordance with Novatel Wireless's specifications as set forth in
Exhibit A of this Agreement and have not been modified by any party
other than Novatel Wireless except as expressly permitted by this
Agreement. Novatel Wireless shall bear the cost of shipping and shall
bear the risk of loss of all defective or non-conforming Products while
in transit, and for the return of the repaired and/or replaced Products
to the appropriate destination. Repaired or replaced Products shall be
subject to the same warranties and remedies as the initial Product for a
period of eighteen (18) months after repair and/or replacement Products
have been received by Intel, or the remainder of the original warranty
period, whichever is longer. Notwithstanding the foregoing, Intel shall
bear all expenses if no fault on the part of Novatel Wireless was found
in the Products returned for repair or replacement. In addition, Novatel
Wireless shall be responsible for all rework costs incurred by Intel as
a result of defective or non-conforming products. For purposes of this
Agreement, the term "rework" means the process of (i) diagnosing,
retrieving, and accessing a non-conforming or defective Product; (ii)
repairing such Product so that it is conforming and free from defects
and/or replacing such Product with an Product which is conforming and
free from defects, (iii) if necessary, reconfiguring an Intel product to
accommodate the repaired or replaced Product or the covered item, (iv)
testing the repaired or replaced Product to ensure that the repaired or
replaced Product is conforming and free from defects; and (v) returning
the Product which is conforming and free from defects to the location
where the non-conforming or defective Product was at the time the
non-conformance or defect was discovered
E. "Turn-Around Time" for purposes of this section means thirty (30) days
from the date on which such defective Product, or defective or
non-conforming part thereof, is furnished to Novatel Wireless for repair
or replacement, until the date on which such replaced or repaired
Product is returned to Intel. With respect to Services, "Turn-Around
Time" for providing the required Services shall be thirty (30) days from
the date Novatel Wireless receives notice that Services are not being
provided as required under the Agreement.
F. The warranty granted in this Section 8 sets forth Intel's sole and
exclusive remedy and Novatel Wireless's sole and exclusive liability for
any claim of warranty for any Product or Service delivered by Novatel
Wireless.
G. Intel acknowledges that it is not authorized to make any warranty or
representation on behalf of Novatel Wireless or its suppliers regarding
the Products, whether express or implied, other than the warranty terms
set forth in this Section 8.
H. THE WARRANTY MADE UNDER THIS SECTION 8 IS EXPRESSLY IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
9. PRODUCT SPECIFICATIONS/ IDENTIFICATION/ERRATA
A. Novatel Wireless shall not modify the specifications for Products or
Services without Intel's written consent. Novatel Wireless shall notify
Intel at least sixty (60) days in advance of any changes in the
manufacturing process.
B. Novatel Wireless shall cooperate with Intel to provide configuration
control and traceability systems for Products supplied hereunder.
C. Novatel Wireless shall provide Intel with an errata list for each
Product and shall promptly notify Intel in writing of any new errata
with respect to the Products.
10. PACKING AND SHIPMENT
A. All Products shall be prepared for shipment in a manner that: (i)
follows good commercial practice; (ii) is acceptable to common carriers
for shipment at the lowest rate; and (iii) is adequate to ensure safe
arrival. Novatel Wireless shall mark all containers with necessary
lifting, handling and shipping information, Purchase Order number, date
of shipment, and the names of the Intel and Novatel Wireless. Intel
shall notify Novatel Wireless of the method of shipment and expected
delivery date. If no instructions are given, Novatel Wireless shall
select the most cost effective carrier, given the time constraints known
to Novatel Wireless. Novatel Wireless shall ship only the quantity of
Products specified in the Release. Intel may return at Novatel
Wireless's expense any Products in excess of the quantity stated in the
Release.
B. Intel shall manage all freight shipped pursuant to this Agreement unless
Intel indicates, in writing, on the Purchase Order, at the time it is
first submitted to Novatel Wireless, that Novatel Wireless is to manage
the freight with respect to that particular Purchase Order. The party
selected to manage freight shall do so in accordance with the following
terms and conditions:
(i) For Novatel Wireless Managed Freight: All Products shall be
shipped Delivered Duty Paid, Intel's Dock (DDP: Intel's Dock,
Incoterms 2000) for non free trade zone factory sites or
Delivered Duty Unpaid, Intel's Dock (DDU: Intel's Dock,
Incoterms 2000) for free trade zone factory sites. Title and
Risk of loss shall pass to Intel upon delivery of Products to
Intel's Dock.
(ii) For Intel Managed Freight: All Products shall be shipped Free
Carrier, Novatel Wireless's Dock (FCA: Novatel Wireless's Dock,
Incoterms 2000). Title and Risk of loss shall pass to Intel upon
delivery of Products to Intel's agent at the Novatel Wireless
Dock.
11. OWNERSHIP AND BAILMENT RESPONSIBILITIES
A. Any specifications, drawings, schematics, technical information, data,
tools, dies, patterns, masks, gauges, test equipment, and other
materials furnished or paid for by Intel shall: (i) be kept
confidential; (ii) remain or become Intel's property; (iii) be used by
Novatel Wireless exclusively for Intel's orders; (iv) be clearly marked
as Intel's property and segregated when not in use; (v) be kept in good
working condition at Novatel Wireless's expense; and (vi) be shipped to
Intel promptly on demand.
B. Novatel Wireless shall insure Intel's property and be liable for loss or
damage while in Novatel Wireless's possession or control, ordinary wear
and tear excepted.
12. HAZARDOUS MATERIALS
A. If Products or Services provided hereunder include Hazardous Materials,
Novatel Wireless represents and warrants that Novatel Wireless and its
personnel providing Services to Intel understand the nature of and
hazards associated with the design and/or Service of Products including
handling, transportation, and use of such Hazardous Materials, as
applicable to Novatel Wireless. Prior to causing Hazardous Materials to
be on Intel's property, Novatel Wireless shall obtain written approval
from Intel's Site Environmental/Health/ Safety organization. Novatel
Wireless will be fully responsible for and indemnify Intel from any
liability resulting from the actions of Novatel Wireless or its
contractors in connection with: (i) providing such Hazardous Materials
to Intel; and/or (ii) the use of such Hazardous Materials in providing
Services to Intel.
B. Novatel Wireless will timely provide Intel with material safety data
sheets and any other documentation reasonably necessary to enable Intel
to comply with applicable laws and regulations.
C. Novatel Wireless hereby certifies that Products supplied to Intel do not
contain and are not manufactured with any ozone depleting substances, as
those terms are defined by law.
13. CUSTOMS CLEARANCE
Upon Intel's request, Novatel Wireless will promptly provide Intel with
a statement of origin for all Products and with applicable
CONFIDENTIAL 74
<PAGE> 100
customs documentation for Products wholly or partially manufactured
outside of the country of import.
14. INSURANCE
A. Without limiting or qualifying Novatel Wireless's liabilities,
obligations, or indemnities otherwise assumed by Novatel Wireless
pursuant to this Agreement, Novatel Wireless shall maintain, at its sole
cost and expense, with companies acceptable to Intel, Commercial General
Liability and Automobile Liability Insurance with limits of liability
not less than $1,000,000.00 per occurrence and including liability
coverage for bodily injury or property damage (1) assumed in a contract
or agreement pertaining to Novatel Wireless's business and (2) arising
out of Novatel Wireless's product, Services, or work. Novatel Wireless's
insurance shall be primary, and any applicable insurance maintained by
Intel shall be excess and non-contributing. The above coverages shall
name Intel as additional insured.
B. Novatel Wireless shall also maintain statutory Workers' Compensation
coverage, including a Broad Form All States Endorsement in the amount
required by law, and Employers' Liability Insurance in the amount of
$1,000,000.00 per occurrence.
C. If Novatel Wireless is providing any professional service to Intel,
Novatel Wireless shall maintain Professional Liability Insurance
(including errors and omissions coverage) with liability limits not less
than $1,000,000.
D. Novatel Wireless shall provide Intel with properly executed
certificate(s) of insurance prior to commencement of any operation
hereunder and shall notify Intel, no less than thirty (30) days in
advance, of any reduction or cancellation of the above coverages. Such
certificates shall be sent to the attention of Intel's Material
Representative at the address forth in the Notices section of this
Agreement.
15. COMPLIANCE WITH LAWS AND RULES
A. Novatel Wireless shall comply with all national, state, and local laws
and regulations governing the manufacture, transportation, import,
export, and/or sale of Items and/or the performance of Services in the
course of this Agreement. In the United States, these may include, but
are not limited to, Department of Commerce including U. S. Export
Administration regulations, Securities Exchange Commission,
Environmental Protection Agency, and Department of Transportation
regulations applicable to Hazardous Materials. Neither Novatel Wireless
nor any of its subsidiaries will export/re-export any technical data,
process, product, or service, directly or indirectly (including the
release of controlled technology to foreign nationals from controlled
countries), to any country for which the United States government or any
agency thereof requires an export license or other government approval
without first obtaining such license. In addition, Novatel Wireless
agrees not to provide foreign nationals from controlled countries as
employees or contractors for work on any Intel site. For a current list
of "Controlled Countries" refer to http://www.bxa.doc.gov.
B. Novatel Wireless agrees to abide by all Intel's rules and regulations
while on Intel's premises or performing Services including, but not
limited to, safety, health and Hazardous Material management rules, and
rules prohibiting misconduct on Intel's premises including, but not
limited to, use of physical aggression against persons or property,
harassment, and theft. Novatel Wireless will perform only those Services
identified on Addendum "A" and will work only in areas designated for
such Services. Novatel Wireless shall take all reasonable precautions to
ensure safe working procedures and conditions for performance on Intel's
premises and shall keep Intel's site neat and free from debris.
C. Novatel Wireless represents and agrees that it is in compliance with
Executive Order 11246 and implementing Equal Employment Opportunity
regulations, the Vietnam Era Veterans' Readjustment Assistance Act as
amended by the Veterans Employment Opportunities Act of 1998 (to
include: Vietnam-era Veterans and other Veterans who served on active
duty during a war or campaign or expedition for which a campaign badge
has been authorized), and the Immigration Act of 1987, unless exempted
or inapplicable.
E. Novatel Wireless shall comply with all applicable laws regarding
non-discrimination in terms and conditions of employment, payment of
minimum wage and legally mandated employee benefits and compliance with
mandated work hours. Novatel Wireless shall comply with all applicable
laws regarding employment of underage or child labor and shall not
employ children under the age of 16.
16. INTENTIONALLY OMITTED.
17. SECURITY
Novatel Wireless confirms that to the best of its knowledge, employees
of Novatel Wireless performing work at Intel's facilities have no record
of criminal convictions involving drugs, assaultive or combative
behavior, or theft within the last five years. Novatel Wireless
understands that such employees may be subject to criminal history
investigations by Intel at Intel's expense and will be denied access to
Intel's facilities if any such criminal convictions are discovered.
18. INTENTIONALLY OMITTED.
19. ELECTRONIC TRANSACTIONS
A. Subject to the terms and conditions of this Section, the parties agree
to receive electronic documents and accept electronic signatures
relating to transactions contemplated by the Agreement, including
Releases, Purchase Orders, Purchase Order Acknowledgments, Invoices and
other transactions as may be agreed by the parties from time to time.
Electronic documents and electronic signatures shall be a substitute for
paper-based documents and signatures, and the legal validity of a
transaction will not be denied on the ground that it is not in writing.
B. All electronic documents shall be transmitted through the use of EDI,
XML or other WEB based transmission formats. Electronic documents may be
transmitted or received electronically directly by the parties or
through designated third party communication network service providers
with which either party may contract. Each party agrees to designate all
transmissions as confidential and protect all electronic documents from
improper or unauthorized access in accordance with Section 10 of the
Agreement. Information contained in any electronic document or otherwise
exchanged electronically between the parties shall be considered the
confidential information of the disclosing party and shall be maintained
in accordance with Section 10 of the Agreement.
C. For purposes of this Agreement, an electronic signature shall mean
information or data in electronic form that is attached to or logically
associated with an electronic document and executed or adopted with the
intent to sign the electronic document. An oral communication or a
recording of an oral communication shall not qualify as an electronic
signature. Nothing in this section shall be construed to limit or
otherwise affect the rights of either party to assert that an electronic
signature is a forgery, is used without authority, or otherwise is
invalid for reasons that would invalidate the effect of a signature in
written form.
D. Novatel Wireless acknowledges that its use of Intel's websites is at
Novatel Wireless's own risk and that Intel makes no representations or
warranties of any kind whatsoever regarding Intel's websites (including
any software, hardware, equipment, communications providers or
connections), whether express or implied, written or oral, including any
warranty that the Intel's websites will be operational at any particular
time, free from outages or errors, compatible with any other computer or
telecommunications hardware or software, fit for any particular purpose,
or any warranty arising out of course of performance, course of dealing
or usage of trade. Novatel Wireless hereby releases Intel from any and
all liability of any kind whatsoever arising out of Novatel Wireless's
use of or inability to access Intel's website.
CONFIDENTIAL 75
<PAGE> 101
20. USE OF INTELS PASSWORDS
A. During the term of the Agreement, Intel may provide Novatel Wireless's
employees and/or agents with user names and passwords ("Password[s]")
for access to certain of Intel's confidential websites ("Website[s]").
Intel may revoke a Password and access rights to any Website, at any
time without notice to Novatel Wireless. Novatel Wireless agrees that
the Passwords are the confidential information of Intel and shall be
maintained in accordance with Section 10 of the Agreement.
B. Passwords will only be granted to Novatel Wireless's employees or agents
that execute an on-line password use agreement. Novatel Wireless agrees
that this on-line password use agreement will be a valid and binding
agreement when executed by such employees or agents. Novatel Wireless
agrees to take all reasonable efforts to ensure that such employees and
agents comply with the terms of such password use agreements and to
notify Intel within ten (10) business days of such an employee or agent
terminating their employment with Novatel Wireless.
C. Novatel Wireless and Novatel Wireless's employees and/or agents are
authorized to use Passwords only for accessing the Websites for the
business purposes intended by Intel and for no other purpose. All
information found on the Website or downloaded, transferred, printed or
otherwise obtained from the Website is the Confidential Information of
Intel and is subject to the terms and conditions of the CNDA referenced
on the signature page of this Agreement. Before accessing and receiving
Confidential Information from the Website, Novatel Wireless's employees
and/or agents must electronically accept the terms and conditions of the
electronic Confidential Information Transmittal Record ("CITR") found on
the Website, which the parties agree will substitute for the CITR
procedure in the CNDA. Intel will record and store a record of each and
every time Novatel Wireless's employees and/or agents access the Website
with the Password. In addition to the terms and conditions of the CNDA,
Novatel Wireless's employees and/or agents will comply with any other
restrictions found on the Website.
CONFIDENTIAL 76
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EXHIBIT B-1
***
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 103
***
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 104
EXHIBIT B-2
INTENTIONALLY OMITTED
CONFIDENTIAL 79
<PAGE> 105
EXHIBIT B-3
CERTIFICATE OF ORIGINALITY
This Certificate of Originality must be completed by Novatel Wireless when
furnishing software material (program product or offering and related
documentation, or other software material) for Intel.
One Certificate of Originality can cover one complete product, even if that
product includes multiple modules. However, a separate Certificate of
Originality must be completed for the code and another for its related
documentation (if any.)
Please leave no questions blank. Write "not applicable" or "N/A" if a question
is not relevant to the furnished software material.
1. Name of the software material (provide complete identification,
including version, release and modification numbers for programs and
documentation):________________________________________________________
2. Was the software material or any portion thereof written by any party
other than you, or your employees working within their job assignment?
Yes ______ No ______ If Yes, provide the following information:
(a) Indicate if the whole of the software material or only a portion
thereof was written by such party, and identify such portion:__
_______________________________________________________________________
(b) Specify for each involved party:
(i) Name: _________________________________________________
(ii) Company: ______________________________________________
(iii) Address: ______________________________________________
(iv) If the party is a company, how did it acquire title to
the software material (e.g., software material was
written by company's employees as part of their job
assignment)?
(v) If the party is an individual, did s/he create the
software material while employed by or under contractual
relationship with another party? Yes ______ No ______
If Yes, provide name and address of the other party and
explain the nature of the obligations: ________________
(c) How did you acquire tittle to the software material written by
the other party? ______________________________________________
3. Was the software material or any portion thereof derived from any third
party's pre-existing material(s)? Yes ______ No ______
If Yes, provide the following information for each of the pre-existing
materials:
(a) Name of the materials: ________________________________________
(b) Owner: ________________________________________________________
(c) How did you get the right to use the pre-existing material (s)_
_______________________________________________________________________
4. Identify below, or in an attachment, any other circumstances that might
affect Intel's ability to reproduce and market this software product,
including:
(a) Confidentiality or trade secrecy of pre-existing materials: ___
_______________________________________________________________________
(b) Known or possible royalty obligations to others: ______________
(c) Pre-existing material developed for another party or customer
(including government) where you may not have retained full
rights to the material: _______________________________________
(d) Materials acquired from a person or company possibly not having
title to them: ________________________________________________
(e) Other circumstances: __________________________________________
NOVATEL WIRELESS:
____________________________________________
Signature:__________________________________
Printed Name :______________________________
Title: _____________________________________
Date: ______________________________________
CONFIDENTIAL 80
<PAGE> 106
EXHIBIT B-4
ASSIGNMENT OF INTELLECTUAL PROPERTY
In consideration of the disclosure of Intellectual Property and Confidential
Information of Intel and the compensation paid by Intel to ("Assignor") under
the Intel Corporation Purchase Agreement/Goods & Services No._____, effective
("Agreement") the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
Assignor has created or obtained exclusive title to the following work(s)
(hereinafter "Work") entitled:
1.
2.
In this Agreement, "Work" means all works, including literary works, pictorial,
graphic and sculptural works, architectural works, works of visual art, mask
works, and any other work that may be the subject matter of copyright
protection; advertising and marketing concepts; information; data; formulas;
designs; models; drawings; computer programs; including all documentation,
related listings, design specifications, and flowcharts, trade secrets, and any
inventions including all processes, machines, manufactures and compositions of
matter, and any other invention that may be the subject of patent protection;
and all statutory protection obtained or obtainable thereon including those in
foreign countries.
The undersigned hereby assigns to Intel all right, title, and interest to all
Work created by Assignor arising out of or utilized by the Assignor in the
performance of the Agreement, and the ownership of the same shall be vested
solely in Intel. In respect to copyrights, this assignment shall be effective
for the entire duration of the copyrights and shall include, but not be limited
to all rights to derivative works. Assignor waives all rights of attribution,
and integrity for specific works created by Assignor under the Agreement in
respect of all marketing, advertising, and commercial uses thereof.
Assignor represents and warrants that the Work is original; that neither the
Assignor's interest in the Work nor the copyright therein is encumbered or
subject to any undisclosed lien or charge; and that Assignor is free to make the
present assignment and has no legal obligation or prior commitment that is
inconsistent with this Agreement.
ASSIGNOR
Signature: _________________________________
Printed Name:_______________________________
Date:_______________________________________
CONFIDENTIAL 81
<PAGE> 107
EXHIBIT C
<PAGE> 108
EXHIBIT C-1
Manufacturing Package
***
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 109
EXHIBIT C-2
Design Package
***
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 110
EXHIBIT C-3
ESCROW PROVISIONS
1. Manufacturing Package and Design Package Deposit. Within thirty days
after the Effective Date, Novatel Wireless shall deliver to the escrow
agent identified below (the "Escrow Agent", respectively), such
documents and other specified media comprising the Manufacturing and
Design Packages, respectively, consisting of the software, firmware,
schematics, process specifications, etc. as set forth in Exhibits C-1
and C-2, respectively as are then available to Novatel Wireless (it
being understood by Intel that the Products are still under development
and that the remaining portions of the Manufacturing and Design Packages
will be delivered to the Escrow Agent when available to Novatel Wireless
as set forth in Exhibits C-1 and C-2). Novatel Wireless shall deliver
the Manufacturing and Design Packages to the Escrow Agent at the
following address:
Data Securities International, Inc.
[Attn: Contract Administration
6165 Greenwich Drive
Suite 220
San Diego, CA 92122
Telephone: (619) 457-5199
Facsimile: (619) 457-4252]
2. Delivery of Updates. During the term of the Agreement and pursuant to
Sections 4.5 and 5.4 of the Agreement, Novatel Wireless shall provide
Updates to the Manufacturing and Design Packages. Novatel Wireless shall
give written notice to Intel and Escrow Agent, before delivering the
Manufacturing and Design Packages of the applicable Release to Escrow
Agent, stating that the Manufacturing and Design Packages are ready for
delivery. Upon ten (10) days prior written notice, Intel will have the
right to have a third party consultant as agreed between the parties and
subject to an obligation of confidentiality present at Novatel
Wireless's site in San Diego, California, to inspect the Manufacturing
and Design Packages to ensure that they are complete and accurate prior
to their delivery to the Escrow Agent. Such inspection shall occur
during regular business hours and at mutually agreeable times. The
parties understand and agree that the role of the third party consultant
is only to review the materials and that the designated Novatel Wireless
engineer(s) will be responsible for actually preparing the materials.
Following completion of the review, the parties' representatives shall
jointly ensure that the Manufacturing and Design Packages are sent
immediately by overnight courier to the Escrow Agent at the address set
forth above.
3. Escrow Agreement. Within ten days of the execution of this Agreement, the
parties shall enter into an escrow agreement in a form mutually agreeable to the
parties and with the Escrow Agent. In the event Intel believes that and Escrow
Event has occurred, Intel shall send notice to Novatel Wireless that and Escrow
Event has occurred and Novatel Wireless shall have two (2) business days to
consent or object to such characterization, if Novatel Wireless objects to such
characterization, the parties shall submit the matter to a third-party
consultant (the "Consultant") selected either 1) by mutual agreement; or 2) if
the parties cannot agree, by allowing the American Arbitration Association to
appoint an independent arbitrator for the parties. The parties shall submit
arguments and the Consultant who will decide the matter based upon the
submissions of the parties and shall render a decision on the matter within ten
(10) days after its referral to the Consultant. If the Consultant rules that an
Escrow Event has occurred, the Consultant must then also determine, based on the
parties arguments, the appropriate portion of the Design Package to release from
escrow (ie. that portion expressly required in order for Intel to provide
<PAGE> 111
itself the specific Product Support which Novatel Wireless failed to provide),
and promptly order the release of such portion of the Design Package. Any use of
the Design Package by Intel for this purpose of replacing failed Product Support
shall be limited to replacement of the failed Product Support, and any other use
by Intel of the released portion of the Design Package is prohibited. Intel
covenants and agrees that it shall not provide such written certification unless
an Escrow Event has occurred or Intel has notified Novatel Wireless that Intel
is exercising its option to license the Design Package or the Manufacturing
Package, as the case may be. Novatel Wireless will incur all expenses billed by
the Escrow Agent directly relating to the escrow and the escrow agreement but
not any other costs incurred by Intel relating to the escrow or escrow
agreement.
88
CONFIDENTIAL
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EXHIBIT D
<PAGE> 113
EXHIBIT D
SUPPORT AND TRAINING REQUIREMENTS
DEFINITIONS
Error definition and severity shall mean the following:
a) A "critical" error is one that causes a critical service of the
device to fail, resulting in interruption of basic service
severely degrading the performance of the device. There is
generally no recovery or workaround for this type of error.
b) An "important" error is one that degrades basic service on the
device and some functions of the device are either nor available
or not adequate. There is no convenient workaround available for
this type of error.
c) A "minor" error is one that causes results in unexpected or
incorrect behavior but does not prevent operation of the device.
Minor errors will normally have convenient workarounds.
d) A "discretionary" error is one that is a suggestion or comment
by the user.
PRODUCT SUPPORT
1. Customer Support Contacts
Parties will assign designated technical support specialist at their
respective centralized customer support locations. Parties will also
assign a designated contact for escalation and provide that contact to
the other party. Novatel Wireless will be responsible for first line
customer support if Intel *** any Novatel Wireless *** Product.
Intel will be responsible for first line customer support for any Intel
*** Product.
2. Bug Information
Novatel Wireless will provide Intel copies of Novatel Wireless's
customer support database.
3. Customer support Escalation Procedure
a) If Intel is unable to solve a customer problem related to the
Products, it shall submit to Novatel Wireless a written
explanation of the problem (a problem report along with an end
user report if applicable) along with a severity designation as
outlined in the procedure below. Novatel Wireless shall
acknowledge the receipt of such submitted problem reports within
one business day of such submission. Novatel Wireless will
assist the Intel in solving such problems as outlined in the
procedure below. Such assistance will be available to the Intel
at no cost, at least during Intel's normal business hours (8-5pm
PST), for so long as Intel continues to purchase the Products.
For support provided outside that period, a mutually agreed
charge shall be established for such
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 114
assistance.
b) There will be weekly meetings, at Intel's request, between the
Parties' technical support specialists to discuss such problem
reports, the respective problems, solutions to existing
problems, and for Novatel Wireless to provide Product Changes
(and work-arounds) to current problems. This meeting will
generally be a conference call, but at times may be a
face-to-face meeting (at each parties expense) depending upon
the severity of the problems.
c) The Parties agree that Intel shall receive one of the following
resolutions to the problem:
Complete resolution, which results in the problem's
resolution and removal from the problem list.
Interim workaround, which results in delivering an
interim patch and giving Intel a date for a complete
resolution. The problem will be tracked through the
Parties' weekly support meeting.
The problem is logged as a bug and Intel is given an
interim workaround or a projected resolution date. The
bug is tracked through the Parties' weekly support
meeting.
d) Problem expected response time
a) For each error type, Novatel Wireless has a specific
numbers of days to acknowledge the problem, and a
specific number of days to respond with a fix, plan for
a fix, or have the problem logged for a future update.
Note that all time frames listed below assume that
correction of the specified problem is possible within
the allowed time frame. Novatel Wireless commits to
making every reasonable effort to meet these time
frames. If a fix or workaround is not possible within
the allowed time frame, Novatel Wireless will work with
Intel to provide an estimate of the time required to
correct the problem, will use its reasonable efforts to
correct the problem as close to the allowed time frame
as possible, and will report regularly to Intel until
corrective action is complete.
b) The parties shall use good faith to escalate response
times when necessary from time to time. Milestones below
are based on indicated days after problem is reported to
Novatel Wireless.
c) Time-frames below are based on indicated days after
problem is reported to Novatel Wireless.
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CONFIDENTIAL
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<TABLE>
<CAPTION>
NUMBERS IN DAYS CRITICAL IMPORTANT MINOR DISCRETIONARY
--------------- -------- --------- ----- -------------
<S> <C> <C> <C> <C>
RESPOND 1 3 10 30
FIX, PLAN, OR LOG 3 5 90 90
</TABLE>
e) Customer Support Contacts
Parties will assign designated technical support specialists at their
respective centralized customer support locations. Parties will also
assign a designated contact for escalation and provide that contact to
the other party.
IMPLEMENTATION SERVICES
1. Novatel Wireless shall provide an engineering focal contact for
Intel
a) Available Normal Novatel Wireless Business Hours based
on the location in which the engineering contact
resides.
b) Engineering focal point must have access to both
hardware and software engineering; otherwise expertise
in both areas is required.
c) Novatel Wireless will make reasonable efforts to provide
schematic and board design review for any device using
the *** .
d) Novatel Wireless will make reasonable efforts to provide
schematic and board design review for any module built
by Intel from the design and manufacturing package.
e) Novatel will make reasonable efforts to provide
facilities for test and evaluation of the RF subsystem
on any device produced by Intel containing Novatel
Wireless radios or *** .
2. Manufacturing Test Engineering Support. The Implementation
Services provided by Novatel Wireless pursuant to Section 3.3 of
the Agreement shall include without limitation the following:
a) Novatel Wireless will test and functional validation
plans for manufacturing tests.
b) Novatel Wireless will provide any software test code
using for manufacturing validation and test.
c) Novatel Wireless will provide necessary design
specifications for jigs used in manufacturing validation
and test.
d) Onsite support for manufacturing test validation at
Intel or manufacturer of choice. If such request is made
by Intel subsequent to Intel or Intel's Manufacturer(s)
achieving a functional test yield of *** as provided
in Section 3.3 of the Agreement, Intel shall reimburse
Novatel Wireless for the expenses incurred by Novatel
Wireless in fulfilling such request.
TRAINING
1. Novatel Wireless to provide one day of hardware training per new
module release and interface supported a minimum of 90 days
before the release is generally
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*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 116
available.
2. Novatel Wireless to provide one day of software training per new
software update or release if the new release or update adds or
removes functionality. Training to be provided a minimum of 45
days before the release is generally available.
3. Novatel Wireless to provide one week of support training per
released product or Intel manufactured product based on the
Novatel Wireless design package.
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EXHIBIT E
<PAGE> 118
EXHIBIT E
QUALITY ASSURANCE REQUIREMENTS
PURPOSE
This document outlines Intel's minimum expectations for information submitted
and actions taken by Novatel Wireless to manage and continuously improve the
quality and reliability of products purchased by Intel.
CONTENTS
1. Quality Definitions
2. Quality Systems
3. Workmanship Standards
4. Data Reporting Format
5. Equipment Calibration
6. Part Placement Inspection
7. Wave Soldering Machines
8. Post ICT Part/Solder Inspection
9. Packaging Requirements
10. Outgoing Quality Audit (OQA)
11. Training
12. Incoming Inspection at Intel
13. Quality Telephone Call
14. Engineering Change Notification (ECN) Approval Process
15. MRB Review
16. Process Change Notification (PCN) Approval Process
17. Design Approval and Revision Control
18. Quality Action Notification (QAN)
19. Customer Line Fallout FA/CA
20. Supplier Control
21. Material Handling
22. 1000 DPM Quality Plan
1. QUALITY DEFINITIONS
1.) I.P.C.-A-610B: Workmanship standard for Printed circuit board
assemblies created by the Institute for Interconnecting and Packaging of
Electronic Circuits.
2.) Intel Workmanship Standards: Workmanship standards created by Intel
for the manufacture of printed circuit board assemblies
(Doc#99-0007-001).
3.) Mil-Std 105E: Military Standard covering Sampling and Inspection
procedures.
4.) A.Q.L.: Acceptable Quality Level.
5.) I.S.O.: International Standards Organization.
6.) DPM: Defective Parts per Million.
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7.) C.L.F.: Customer Line Fallout at Intel customer location measured in
defective parts per million.
8.) F.L.F.: Factory Line Fallout at Intel factory measured in defective
parts per million.
9.) O.R.T.: On-going Reliability Testing at Supplier factory specifying
type of environmental chamber used; sampling, and duration of testing
2. QUALITY SYSTEM
Novatel Wireless is responsible for developing and implementing a
quality system based on an ISO program. Novatel Wireless should be ISO
certified or planning to do so within the next calendar year. Novatel
Wireless will be expected to maintain certification as long as they are
building products for Intel.
3. WORKMANSHIP STANDARDS
Intel will judge supplier quality to Intel Workmanship Standards
(Doc#99-0007-001) . For items not addressed in the IWS document then
defer to IPC-A-610B.
4. DATA REPORTING FORMAT
Novatel Wireless shall submit quality data to Intel on a regular basis.
This data will consist of Novatel Wireless product, factory and critical
parameter performance. The following is a list of the data that will be
sent to Intel:
<TABLE>
<S> <C> <C>
1. Supplier Initial Test Yield Data -Sent monthly
2. Supplier Final Test Yield Data -Sent monthly
3. Supplier Out-going Quality Audit -Sent monthly
4. Supplier ORT -Sent monthly
</TABLE>
Item 4, ORT test data to be available by the end of ***.
Data to be sent monthly should arrive before the 15th of each month for
the previous month's data. Data reported to: Materials Quality Engineer.
Novatel Wireless will work with Intel to detail the content of the
report, and will pass on to our supplier as our data reporting
requirements.
5. EQUIPMENT CALIBRATION
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Novatel Wireless mechanical measuring instruments, tools, test equipment
will be calibrated at a specified interval of time to ensure accuracy of
measurement. Novatel Wireless will keep records which show the equipment
location, calibration date due data and the equipment's detail. Novatel
Wireless QC will ensure that the calibration is done on schedule.
6. PART PLACEMENT INSPECTION
For all Intel production runs, Novatel Wireless will require its
supplier to inspect two boards per line every two hours prior to wave
solder for proper placement of all components. Novatel Wireless will
require its supplier to maintain a record of parts found missing or
incorrectly placed, segregated by placement station. Trends, reversed
diodes and electrolytic capacitors will require written corrective
action. Novatel Wireless will require its supplier to retain records for
at least one year and these will be available to Intel upon request.
7. WAVE SOLDERING MACHINES
Novatel Wireless will require its supplier to check wave solder heat
profile at the beginning of each production run.
Novatel Wireless will require its supplier to use X-bar r charts to
monitor and control the wave soldering machines' flux density, conveyer
speed, pre-heat temperature(s), solder wave height, and solder pot
temperature. Novatel Wireless will require its supplier to take sample
readings for charts four times daily. Novatel Wireless will require its
supplier to check solder pot cleaning system every 2 hrs. (if
applicable) Novatel Wireless will require its supplier to retain all
charts for a period of at least one year and be made available to Intel
upon request.
8. POST ICT PART/SOLDER INSPECTION:
Novatel Wireless will require its supplier to perform sample inspections
of all parts not included in ICT for proper placement, type,
orientation, and solder joint quality. Novatel Wireless will require its
supplier to provide a list of these components and a layout drawing with
parts highlighted for use by inspector for each Intel P/N.
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9. PACKAGING REQUIREMENTS
Adherence to Intel Specification General Supplier Packaging Standard,
Intel Doc #662394 is required.
Packaging must prevent any functional damage to units contained therein,
when the package is dropped from a height of 99.14cm onto a flat
concrete surface. Boxes arranged on palette for shipment will be secured
using stretch-wrap or cardboard. Novatel Wireless will ship no packages
to Intel which are damaged without prior approval from Intel Material
Engineering.
Intel reserves the right, for one time as to each modem SKU, to place
sensors in and on Novatel Wireless packaging at Novatel Wireless's
factories for the purpose of collecting data on the forces being
experienced by Intel-bound modems during shipment. This data can and
will be used by Intel to drive continuous improvement in packaging
methods and revisions to this section of the Quality Management Plan.
10. OUTGOING QUALITY AUDIT (OQA):
Outgoing Quality Audit to be performed on all Intel products. This audit
will be performed on each production lot in accordance with MIL-STD
105E, single sample size, level II inspection level, AQL (critical 0%,
major .65% , min 1.5%). Samples will be randomly selected from boxed
units. Units will be unpacked, inspected, tested, and repacked for
shipment. All rejected lots will be re-tested or screened by production
using electrical or mechanical inspections as applicable. A checklist
will be used to document all OQA inspections, test parameters and their
relative classifications (critical, major, or minor). A current copy of
this list will be made available to Intel upon request. This list will
include, but is not limited to, the following inspections: packing,
visual, safety, and electrical tests (per Novatel Wireless Test Spec).
11. TRAINING
Prior to allocation of jobs, all new production personnel and inspectors
at Novatel Wireless qualified suppliers shall be trained to Novatel
Wireless workmanship standards and QC system, both on and off the job as
necessary.
12. INCOMING INSPECTION AT INTEL
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Intel does reserve the right to perform incoming inspections at Intel
facilities and/or outgoing inspections at Supplier's facility on
Intel-bound product as necessary. If necessary, Intel will use a
statistical sampling method deemed appropriate whereby any one failure
will be cause for rejection of the entire lot. Disposition of the lot
will be determined by Intel Materials Engineer and may include return
for credit or repair. Novatel Wireless agrees to perform a 100% screen
of lot(s) if requested by Intel Materials Engineer.
13. QUALITY TELEPHONE CALL
A monthly Quality call will be established at a mutually agreed upon
time to discuss all on-going issues such as:
a) Product Change Notification's (PCNs)
b) Failure analysis of fallouts
c) Business issues
d) Quality Action Notice's (QANs)
e) New Issues
f) ld issues
The following job titles and functions to be represented by both Buyer
and Supplier on the monthly quality call include:
a) Engineering Manager - scope includes but not limited to general
engineering issues and ECNs
b) Production Supervisor and/or Manager - scope includes but not
limited to PCNs
c) QC Supervisor and/or Manager - scope includes but not limited to
FA of fallouts and CAs
d) Account Manager - scope includes but not limited to business and
new issues
Novatel Wireless will schedule the quality telephone call meeting when
production starts.
14. ENGINEERING CHANGE NOTIFICATION (ECN) APPROVAL PROCESS
All ECN'S that affect the fit, form, and/or function of the power supply
will require Intel's approval before implementation. In certain
instances Intel may require Novatel Wireless to submit samples for
approval. Novatel Wireless will notify Intel at least 60 days prior to
proposed implementation date, with exceptions made for safety assurance
and lines down avoidance.
15. MRB REVIEW
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Novatel Wireless will perform MRB reviews for special or urgent issues
(safety, etc.).
16. PROCESS CHANGE NOTIFICATION (PCN) APPROVAL PROCESS
Novatel Wireless process changes, if deemed to have an effect by Novatel
Wireless on Intel product quality, will require Intel's approval before
implementation. Novatel Wireless will provide justification and/or
additional details if requested by Intel. Novatel Wireless will notify
Intel at least 60 days prior to proposed implementation date, with
exceptions made for safety assurance and lines down avoidance.
17 DESIGN APPROVAL AND REVISION CONTROL
Novatel Wireless shall complete all elements of the following test
procedures for new Intel modem designs. Test results must be reviewed by
Intel Materials Engineer, and Intel must have a hard copy on file prior
to being released for production.
1. Novatel Wireless Design Review Procedures
2. Novatel Wireless Q.A. and Reliability Procedures
Novatel Wireless shall maintain a document control system which insures
that the latest revision of all prints, specifications, and drawings is
used for all Intel production, inspection and testing. Only component
specifications issued by Intel Commodity Management should be considered
valid for production purposes.
18. QUALITY ACTION NOTIFICATION (QAN)
A QAN will take priority over all sustaining issues and a teleconference
call/meeting between Intel and Novatel Wireless will take place with 24
hours to formulate strategy and exchange information. Intel expects
Novatel Wireless to take ownership of all supplier-attributable quality
excursions, and provide immediate containment plan(s) for an issue and
root cause analysis/long term corrective action. Intel's expectation for
Novatel Wireless response time is: short term CA/containment methods
within 48 hours of notification.
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19. CUSTOMER LINE FALLOUT FA/CA
Intel expects that Novatel Wireless will provide failure analysis and
short term containment and corrective actions within 48 hours of receipt
of customer failures. Long-term corrective action will be received
within 10 business days. All reports will be sent to both the regional
Intel office involved, and Intel Materials Engineer.
20 SUPPLIER CONTROL
Novatel Wireless shall maintain a supplier control system which assures
that purchased material and services are of sufficient quality to
conform to Intel specified requirements. Novatel Wireless shall use and
control Purchase Orders to ensure that the correct information is
communicated to Novatel Wireless. Novatel Wireless shall perform
manufacturing/quality system audits of all key component suppliers
periodically to ensure their continuous improvement. For each sub
component purchased, Novatel Wireless shall implement one or both of the
following:
1. Require statistical process control (SPC) and test data from
suppliers to assure conformance to specified requirements.
2. Perform incoming inspections at a statistical sampling rate
sufficient to assure conformance to specified requirements.
Novatel Wireless will retain records of incoming inspections, SPC data,
and audit reports for at least one year and make them available to Intel
upon request.
21. MATERIAL HANDLING
Novatel Wireless shall maintain a material handling system which ensures
that all incoming material are handled properly to avoid physical
damage, temperatures beyond those recommended for materials, or other
conditions which might degrade the quality and/or reliability of the
materials. This system must assure that no material is stored beyond its
recommended shelf-life. All non-conforming material must be tagged, and
placed away from conforming materials in a controlled area designated
for non-conforming material only.
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22. 1000 DPM QUALITY PLAN
Schedule to reduce DPM is as follows:
<TABLE>
<S> <C>
Q2 2000 1800DPM
Q3 1500DPM
Q4 1000DPM
</TABLE>
Action to reduce DPM are the following:
a) Implement shop floor system and closed loop corrective action
plans
b) Total process review implementation in ***.
c) Double inspection line implementation in ***.
Detailed standard procedures for above items are documented for internal
control purposes.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT F
INTENTIONALLY OMITTED
<PAGE> 127
EXHIBIT G
<PAGE> 128
[DOUBLE-CLICK HERE TO BEGIN]
CORPORATE NON-DISCLOSURE AGREEMENT ("CNDA")
PRE-SIGNED VERSION - ASMO & EMEA ONLY
INSTRUCTIONS
PLEASE NOTE: This form is for ASMO and EMEA only, including Ireland and Israel.
This form should not be used for IJKK, APAC or Russia. The instructions for
completing the blanks on the CNDA are as follows:
(a) Agreement Date: Date that Participant signs the CNDA.
(b) CNDA Number: By entering your WWID# you should have generated a unique
CNDA number.
(c) Intel Contact: The Intel employee who can answer questions about the
CNDA and Participant, with mail stop and telephone number. This is
generally the Intel employee who asked Participant to sign the CNDA.
(d) Participant Name: Use complete company name. For a multi-location
company, clearly indicate whether the CNDA applies to the entire company
or a specific division or site. For example, Participant's name should
state "ABC Company," "ABC Company, P.C. Division," or "ABC Company,
North Carolina Research Facility."
(e) Participant Address: Use headquarters' address. If the CNDA applies only
to a specific division or location, then use the address of the division
or location.
(f) Printing: Print TWO (2) original CNDA's for Participant signature.
(g) Signatures: Signatures must be by an authorized officer (i.e.,
President, Vice President or General Manager). This Agreement is
designed to authorize disclosures of Confidential Information using the
CITR or MP-CITR. Therefore, Participant's authorized representative must
understand and agree to this procedure. If an officer of the Participant
is not available, use an Intel SU-NDA. NOTE: To enable quick execution,
Intel has pre-signed this CNDA. Any modifications to the CNDA will
render the CNDA and Intel's signature null and void.
(h) Return: Keep one signed original for your records, and return one signed
original to Intel as follows: For ASMO, one signed original must be
returned to: Intel Corporation, Attn. Post Contract Mgmt, FM6-03, 1900
Prairie City RD., Folsom, CA 95630. For EMEA, one signed original must
be returned to Participant's local Intel contact.
<PAGE> 129
AGREEMENT DATE: Wednesday, August 02, 2000 CNDA# 6983494
CORPORATE NON-DISCLOSURE AGREEMENT
This Corporate Non-Disclosure Agreement ("Agreement") is entered into and made
effective as of the date set forth above, by and between Intel Corporation and
its majority owned worldwide subsidiaries ("Intel"), and the Participant, as
identified below, and its majority owned worldwide subsidiaries (the
"Participant"). Unless the Participant indicates on the Participant's line below
that this Agreement will apply only to a specific division or location, this
Agreement will apply to the Participant's entire company worldwide.
THE PARTIES AGREE AS FOLLOWS:
1. CONFIDENTIAL INFORMATION TRANSMITTAL FORM. The confidential, proprietary
and trade secret information of the disclosing party ("Confidential
Information") to be disclosed hereunder is that information which (i) is
described in the Confidential Information Transmittal Record ("CITR")
executed from time to time hereafter and (ii) is marked with a
"confidential", "proprietary", or similar legend. CITRs are subject to
the terms of this Agreement. CITRs will be executed, in writing or in
electronic form, by the parties prior to the disclosure of Confidential
Information. All Confidential Information received from the disclosing
party will be in tangible form. To be considered Confidential
Information, non-tangible visual and/or verbal disclosures must be
identified as confidential prior to disclosure and reduced to writing,
marked as provided above and delivered to the receiving party within
thirty (30) days of the original date of disclosure. A mutually signed
CITR form will suffice as a writing for such non-tangible disclosures
between the parties. The CITR will indicate the disclosing party, a
description of the Confidential Information disclosed, the names of the
representatives of the parties and the date when the disclosure covered
by the CITR commenced.
2. OBLIGATIONS OF RECEIVING PARTY. The receiving party will maintain the
confidentiality of the Confidential Information of the disclosing party
with at least the same degree of care that it uses to protect its own
confidential and proprietary information, but no less than a reasonable
degree of care under the circumstances. The receiving party will not
disclose any of the disclosing party's Confidential Information to any
employees or to any third parties except to the receiving party's
employees, parent company and majority-owned subsidiaries who have a
need to know and who agree to abide by nondisclosure terms at least as
comprehensive as those set forth herein; provided that the receiving
party will be liable for breach by any such entity. For the purposes of
this Agreement, the term "employees" shall include independent
contractors of each party. The receiving party will not make any copies
of the Confidential Information received from the disclosing party
except as necessary for its employees, parent company and majority-owned
subsidiaries with a need to know. Any copies which are made will be
identified as belonging to the disclosing party and marked
"confidential", "proprietary" or with a similar legend.
3. PERIOD OF NON-ASSERTION. Unless a shorter period is indicated in the
applicable CITR, the disclosing party will not assert any claims of
breach of this Agreement or misappropriation of trade secrets against
the receiving party arising from the receiving party's disclosure of the
disclosing party's Confidential Information made more than five (5)
years from the date of the CITR under which such information was
disclosed. However, unless at least one of the exceptions set forth in
Section 4 below has occurred, the receiving party will continue to treat
such Confidential Information as the confidential information of the
disclosing party and only disclose any such Confidential Information to
third parties under the terms of a non-disclosure agreement.
4. TERMINATION OF OBLIGATION OF CONFIDENTIALITY. The receiving party will
not be liable for the disclosure of any Confidential Information which
is:
(a) rightfully in the public domain other than by a breach of a duty
to the disclosing party;
(b) rightfully received from a third party without any obligation of
confidentiality;
(c) rightfully known to the receiving party without any limitation
on use or disclosure prior to its receipt from the disclosing
party;
(d) independently developed by employees of the receiving party; or
(e) generally made available to third parties by the disclosing
party without restriction on disclosure.
5. TITLE. Title or the right to possess Confidential Information as between
the parties will remain in the disclosing party.
6. NO OBLIGATION OF DISCLOSURE; TERMINATION. Neither party has any
obligation to disclose Confidential Information to the other. Either
party may terminate this Agreement at any time without cause upon
written notice to the other party; provided that each party's
obligations with respect to Confidential Information disclosed during
the term of this Agreement will survive any such termination. Either
party may, at any time: (a) cease giving Confidential Information to the
other party without any liability, and/or (b) request in writing the
return or destruction of all or part of its Confidential Information
previously disclosed, and all copies thereof, and the receiving party
will promptly comply with such request, and certify in writing its
compliance.
7. RESIDUALS. Either party may use Residuals for any purpose, including,
for example, use in the development, manufacture, promotion, sale and
maintenance of its products and services; provided that this right to
use Residuals does not result in or amount to a license under any
patents, copyrights, trademarks, or maskworks of the disclosing party.
The term "Residuals" means any information retained in the unaided
memories of the receiving party's employees who have had access to the
disclosing party's Confidential Information pursuant to the terms of
this Agreement. An employee's memory is unaided if the employee has not
intentionally memorized the information for the purpose of retaining and
subsequently using or disclosing it to a third party. Subject to the
terms and conditions of this Agreement, the receiving party's employees
shall not be prevented from using Residual information as part of the
employee's skill, knowledge, talent, and/or expertise on future
projects.
8. GENERAL.
(a) This Agreement is neither intended to nor will it be construed
as creating a joint venture, partnership or other form of
business association between the parties, nor an obligation to
buy or sell products using or incorporating the Confidential
Information.
(b) Both parties understand and acknowledge that no license under
any patents, copyrights, trademarks, or maskworks is granted to
or conferred upon either party in this Agreement or by the
disclosure of any Confidential Information by one party to the
other party as contemplated hereunder, either expressly, by
implication, inducement, estoppel or otherwise, and that any
license under such intellectual property rights must be express
and in writing.
(c) The failure of either party to enforce any right resulting from
breach of any provision of this Agreement by the other party
will not be deemed a waiver of any right relating to a
subsequent breach of such provision or of any other right
hereunder.
(d) This Agreement will be governed by the laws of the State of
Delaware without reference to conflict of laws principles, if
any.
(e) This Agreement, any accompanying CITR and CITRs executed from
time to time hereafter which incorporate the terms of this
Agreement, constitutes the entire agreement between the parties
with respect to the disclosure(s) of Confidential Information
described in each CITR, and may not be amended except in a
writing signed by a duly authorized representative of the
respective parties. Any other agreements between the parties,
including non-disclosure agreements, will not be affected by
this Agreement.
(f) The disclosing party disclaims all warranties regarding all
Confidential Information disclosed pursuant to this Agreement,
including all warranties as to the accuracy or utility of such
Confidential Information.
INTEL CONTACT: Debashis Chowdhury M/S: Ch6-329 TEL. NO: (480) 554 2582
AGREED:
INTEL CORPORATION PARTICIPANT: Novatel Wireless Inc.
2200 Mission College Blvd. ----------------------------
Santa Clara, CA 95052-8119 (Company Name, Division/Sub,
if applicable)
----------------------------
/s/ SEAN MALLONEY (Street Address)
---------------------------
Sean Malloney ----------------------------
Vice President (City) (State) (Zip)
Director, Sales and Marketing
----------------------------
Signature of Authorized
Representative (e.g.
President or V.P.)
----------------------------
Printed Name & Title
NOTE: TO ENABLE QUICK EXECUTION, INTEL HAS PRE-SIGNED THIS STANDARD CNDA. ANY
MODIFICATIONS TO THIS CNDA WILL RENDER THIS CNDA AND INTEL'S SIGNATURE NULL AND
VOID.
<PAGE> 130
EXHIBIT H
<PAGE> 131
EXHIBIT H
INTEROPERABILITY STATEMENT OF WORK
This statement of work covers Intel's use and integration of radio *** into
its designs. It is meant as a process placeholder for a more detailed Statement
of Work that will include dates, times, resources, and deliverables by each
party, in the form of Part C of Exhibit B-1 of the Agreement , which shall be
mutually agreed by the parties. The first statement of work will be done for the
*** for both *** and *** and additional statements of work will be
mutually agreed by the parties for the ***. An outline for the
Statement of Work for the *** is set forth below.
1) Novatel Wireless shall provide *** specifications, and
schematics to Intel for use in *** for the ***
listed in Exhibit A of the Agreement.
2) Hardware Design Review (after Intel completes initial hardware
design) (approx. *** )
a. Intel will provide to Novatel Wireless a schematic
layout package for its production design incorporating
one of the Novatel Wireless *** .
b. Novatel Wireless will review with Intel the design and
provide feedback to Intel on any performance
improvements or errors that are found in the design.
c. Intel will perform any needed changes and modifications
on the design and submit it to Novatel Wireless for a
final review.
d. A final design review will take place on the hardware
design package with both parties signing off on the
Intel design.
3) Software Design Review (After Intel completes initial software
design) (Approx. *** )
a. Intel will provide to Novatel Wireless a SW architecture
design document that details Intel's use of the
*** design SW features and functionality Intel is
planning to use.
b. Novatel Wireless will review the design in detail with
Intel's software engineers providing feedback on
performance improvement, errors, and or features that
are not available or functioning in the ***.
c. Intel will perform changes and modifications to the
software design and submit it to Novatel Wireless for a
final review.
d. A final design review will take place on the SW
architecture design with both parties signing off on the
Intel design.
4) Onsite Integration (When boards are ready and *** is
available) (Approx. *** )
a. At Intel's request, Novatel Wireless will provide onsite
hardware engineering support for board bring up,
diagnostics, and debugging of the Intel ***
incorporating the *** from Novatel Wireless.
b. At Intel's request, Novatel Wireless will provide onsite
software engineering support for software bring up,
diagnostics, and debugging of the software interfaces
between the embedded *** software stack and the ***.
5) Resources
Each party shall provide sufficient resources to perform the
obligations ascribed to it in
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*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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this Exhibit B.
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EXHIBIT I
INTENTIONALLY OMITTED
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EXHIBIT J
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EXHIBIT J-1
***
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 136
***
CONFIDENTIAL 113
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT J-2
***
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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***
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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Exhibit J-3
***
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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***
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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