Software license, product supply, support agreement for mobile chipset

The following agreement is for software licensing and product supply and support between a North American telecom company focused in the mobile and smartphone market and a China-based company providing chipsets for multi-media, digital cordless and VoIP industry applications.

COMPANY B: North America

This agreement (“Agreement”) is entered into this _____ day of ____, 20__ by and between COMPANY A Incorporated, a company validly existing under the laws of _______, the Republic of China with its main offices located at _______________________________ (“COMPANY A”), and _______________________ a company validly existing under the laws of ___________ with its principal place of business at _________________________________ (“COMPANY B”).

WHEREAS, COMPANY A is engaged in the business of designing, manufacturing and selling various telecommunication equipment;

WHEREAS, COMPANY B is engaged in the business of manufacturing and selling digital signal processing products and applications, and is the owner of, or has certain rights regarding the use of, certain digital voice and communications technologies and is able to provide an integrated system solution based on the _______ chipset (“Chipset”), the definition of which is provided in Paragraph 2.1 of the Statement of Work (“SOW”), attached hereto as Exhibit A;

WHEREAS, COMPANY B has developed [MOBILE PHONE SYSTEM] Call Processing Software and has certain rights to use and license [MOBILE PHONE SYSTEM] Call Processing Software (“Software”) with specifications as described in Paragraph 2.2 of the SOW;

WHEREAS, COMPANY A desires to design and develop a cellular phone for mass production (“Phone”) based on TDMA standards;

WHEREAS, the parties have entered into discussions whereby it is contemplated that the COMPANY B Chipset will be used as a platform, which features _______________ mode;

NOW, THEREFORE, the parties agree as follows:

1. Definitions

1.1 “COMPANY A” shall mean for the purpose of this Agreement COMPANY A Incorporated and all entities directly and indirectly controlled by COMPANY A.

1.2 “Enhancement” or “Enhanced Version” shall mean any version of the Software after adaptations made by COMPANY A for integrating the Software for use with the Phone and the maintenance therefor.

1.3 “Chipset” shall mean the COMPANY B ASIC chipset which comprise [SATELLITE TECHNOLOGY] baseband solution provided to COMPANY A where one of the ASIC is called [ASIC] and the other, Analog IF Interface Chip (IFIC).

1.4 “Deliverables” shall mean all the products, services and software to be delivered under this Agreement.

1.5 “Software” shall mean the Reference Software Packages as defined in Paragraph 2.2 of the SOW in Exhibit A.

1.6 Any undefined terms shall have the meaning assigned to them generally in the telecommunication industry in general and the cellular phone industry in particular.

2. Scope of Responsibility

2.1 COMPANY B Responsibility.
It is the responsibility of COMPANY B to provide with COMPANY A the TDMA system solution (“System Solution”) as described hereunder:

2.1.1 COMPANY B shall provide a developer kit to help COMPANY A’s Phone development as described in the Exhibit A.
2.1.2 This Software shall include software layer 1, protocol stack, API, drivers and test production software (which facilitates COMPANY A’s production of the Phone). The Software shall consist of source codes. COMPANY B shall help COMPANY A to duplicate the same software development environment to facilitate the product development.
2.1.3 COMPANY B shall provide assistance and support to COMPANY A in COMPANY A’s development process around the System Solution provided by COMPANY B. COMPANY B shall support COMPANY A’s Phone development such as verification of the functionality of PCBs for major modification runs. This will happen after a change and PCB review session takes place with both parties, and COMPANY B responds with an official support agreement. COMPANY B undertakes that COMPANY B engineers will be available in Taiwan to provide support and assistance to COMPANY A upon request. COMPANY B shall make available to COMPANY A a team of experts (including without limitation radio frequency, baseband, and software) to interface, respond, support and assist COMPANY A in a manner that is most effective. Clear requirements shall be provided to COMPANY B in a written form to allow the best selection to be made. COMPANY B shall organize the link for COMPANY A to a type approval test company.
2.1.4 COMPANY B has identified the following personnel to interface with and provide support to COMPANY A:

Mr. _____________ Local overall coordinator
Mr. _____________ Technical coordinator
Mr. _____________ Customer Help Desk window
Mr. _____________ Business coordinator

2.2 Both parties agree that each shall individually bear and accept full responsibility for all costs, expenses and liabilities it incurs in the performance of its obligations herein.

3. Pricing of Chipset

3.1 Without liability to COMPANY B, COMPANY A estimates that its requirement for the Chipset might be in the range of between five hundred thousand (500,000) to one million (1,000,000) sets annually. For the avoidance of doubt, COMPANY A shall not be required to make any purchase from COMPANY B for any quantity of the Chipset.

3.2 It is understood that major modifications to the proposed development features of the Phone may be necessary in view of the then market developments and conditions. COMPANY B shall acknowledge and consider each modification request made by COMPANY A in a positive and efficient manner. If both parties decide to implement the proposed new feature after review, then an addendum agreement reflecting the modification shall be executed and attached to this Agreement.

4. Deliverables and Schedules

4.1 COMPANY B deliverables and schedule.

The deliverables described in Paragraph 4 in Exhibit A of the SOW shall be incorporated by this reference into this Agreement, provided however that the project development schedule (“PDS”) to be supplied by COMPANY A shall modify and take precedence over the Milestones listed in Paragraph 3 in Exhibit A of the SOW.

5. Confidential Information

5.1 In the process of carrying out their respective obligations hereunder, COMPANY A may from time to time reveal or provide access to its proprietary information including without limitation its intellectual property rights, patents, and copyrights (“COMPANY A Proprietary Information”) to COMPANY B, and COMPANY B may from time to time do the same (“COMPANY B Proprietary Information”). Both parties agree that Proprietary Information shall include, without limitation, any data or information, whether business or technical, which has not been publicly disclosed and is not a matter of common knowledge and any material to which the respective party has intellectual property rights. In addition, any data or information, if at the time of disclosure by the disclosing party to the receiving party is marked with a legend such as “confidential” or “proprietary”, shall be considered the disclosing party’s Proprietary Information. Without compromising the confidentiality of each of the parties, access to all materials developed during the course of the performance of this Agreement shall be maintained at a reasonable level for the sole purpose of carrying out their obligations herein.

5.2 The disclosing party may provide the receiving party with access to the disclosing party’s facilities. In such an event, the receiving party agrees that any information revealed by way of the provided access to the disclosing party’s facilities shall be considered the disclosing party’s Proprietary Information for the purposes of this Agreement. The disclosing party may provide the receiving party with certain access to the disclosing party’s electronic media or computer systems for information retrieval and in such an event, the receiving party agrees that any information so retrieved shall be deemed to be the disclosing party’s Proprietary Information.

5.3 Notwithstanding the above, the parties hereto agree to exclude from this Agreement any information which the receiving party can demonstrate was or is: (a) wholly independently developed by the receiving party without any reference to the disclosing party’s Proprietary Information; (b) known or has since become known to the general public without breach of this Agreement; (c) identified to the receiving party at the time of disclosure without confidentiality limitation by the disclosing party as shall be evidenced by appropriate documents in the receiving party’s possession; (d) approved for disclosure by written authorization of the disclosing party but only to the extent limited by such written authorization; (e) required to be disclosed pursuant to a judicial action or other legal requirements, provided, however, that the receiving party shall first give a ten (10) day prior written notice to the disclosing party and shall cooperate with the disclosing party if the disclosing party desires to seek a protective order preventing such disclosure; or (f) is rightfully received by the receiving party without confidentiality limitation from a third party and without breach of this Agreement.

5.4 Except as specifically provided for in this Agreement, the receiving party shall only use the other party’s Proprietary Information for the purposes of fulfilling its obligations hereunder. The receiving party shall maintain the confidentiality of the other party’s Proprietary Information and shall not disclose such Information to any third party unless the third party has been specifically authorized by the disclosing party in writing prior to disclosure.

5.5 Proprietary Information shall be handled with the same degree of care which the receiving party applies to its own Proprietary Information, provided that in no event shall the degree of care be less than reasonable care.

5.6 The provisions of this Article shall apply retroactively in full force and effect from the date first contacts were established with respect to the subject matter of this Agreement, and shall remain in full force and effect for a period of five (5) years as from the date of disclosure of the information concerned.

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