EX-10.23
2
puredepth_ex1023.htm
LICENSE AGREEMENT
Exhibit
10.23
Confidential
Treatment Request -- Redacted Copy
LICENSE
AGREEMENT
THIS
LICENSE AGREEMENT (the “Agreement”) is made by and between
PureDepth, Inc., a Delaware corporation, with its principal place of business
at
000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxx, XX 00000 together with its
subsidiaries (“PureDepth”) and Samsung Electronics Co., Ltd. represented by
Samsung Digital Media Business, a Korean corporation, with its principal
place
of business at 416 Maetan 3-dong, Youngtong-gu, Suwon-si, Gyeonggi-do
(“Samsung”). The effective date of this Agreement is the date last
signed below by both parties (the “Effective Date”).
WHEREAS,
PureDepth is a research and design business focused on developing new display
technology. PureDepth has developed and continues to develop “MLD
Technology” (as defined below) with promising commercial potential.
WHEREAS,
Samsung is a leading manufacturer and distributor of LCD desktop display
monitors and public information displays.
WHEREAS,
PureDepth and Samsung have previously entered into a Non-Disclosure Agreement
dated January 9, 2007 (“NDA”) and a Memorandum of Understanding and Prototype
Agreement dated February 22, 2007 (“MOU”), and a Variation to Memorandum of
Understanding and Prototype Agreement (“Variation”) to allow the parties to
first investigate and then agree licensing and market
opportunities.
WHEREAS,
PureDepth wishes to grant to Samsung a license to incorporate PureDepth’s
multi-layer display technology into Samsung products and to Produce (as herein
defined), offer for sale, sell and/or distribute such Samsung products within
the Field of Use (as herein defined) and Territory (as herein defined) under
the
terms and subject to the conditions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and covenants and conditions
contained herein, Samsung and PureDepth agree as follows:
1. Definitions.
1.1 “Confidential Information”
means, whether disclosed orally or in writing: (a) the technical transfer
information including the Manufacturing Package and Design package provided
and
to be further provided under the MOU and this Agreement (“Technical
Transfer Information”), Know-How, and PureDepth Pending Applications whether or
not marked confidential or otherwise identified as such (b) information and
materials relating to research and development of products, processes and
technologies conducted by PureDepth for PureDepth and/or other persons; and
(c) commercial information relating to the business of the PureDepth and/or
the business of any party for whom PureDepth is providing its services; and
any
reports prepared by PureDepth or its advisors in respect of the operations
of
PureDepth; and (d) information, knowledge or material which PureDepth has
designated or may designate as proprietary and/or which relates to business,
methods, services, techniques, products, programming or research of PureDepth;
and (e) any copies of any of the information described above or any material
derived
from that information.
1.2
“Depth Enhancing Technology” means technology utilizing two (2) or more
screens in a stacked arrangement.
Confidential
Treatment Request -- Redacted Copy
1.3 “Device”
means product incorporating the MLD Technology, as set forth in the applicable
Device Appendix.
1.4
“Field of Use” means the field of use for each particular Device, as set
forth in the applicable Device Appendix.
1.5 “Field
of Use Exclusions” means the excluded markets or fields of use for each
particular Device and Field of Use, as may be set forth in the applicable
Device
Appendix.
1.6 “Know-How”
means, collectively, all know-how, show-how, technical information, technical
knowledge, unpatentable inventions, manufacturing procedures, methods,
specifications, bills of materials, processes, and formulas relating to
PureDepth’s MLD Technology, including, but not limited to, the Technical
Transfer Information.
1.7 “Licensed
Intellectual Property” means the PureDepth Patents and the
Know-How.
1.8 “MP
Date” means the earlier of the commencement of Production or the date which
is [****] after the Effective Date.
1.9 “Milestone”
means any milestone required to be met/fulfilled by either Samsung or PureDepth
in accordance with the terms of this Agreement and as more specifically detailed
in relation to any particular Device and Field of Use in the relevant and
applicable Device Appendix.
1.10 “MLD
Technology”
means Depth Enhancing Technology
that would, absent a license, infringe on the PureDepth Patents.
1.11 “Permitted
Subcontractors” means those subcontractors of Samsung that will be involved
with Production or otherwise of any Device who, as a result, require a
sublicense of the rights granted by PureDepth to Samsung under this
Agreement. Any such sublicense will be subject to the terms and
conditions set out under this Agreement.
1.12 “Plans”
means, collectively, the various guidelines/minimum requirements (at a high
level) to be met by either or both parties, as applicable, in order to
meet/deliver on the respective Milestones, including, in respect of Device
Appendix No 1 in the first instance (and amended/updated/deleted or otherwise
added to/for each other Device Appendix going forward), the:
(a) Branding
Plan (“Exhibit G”);
(b) Production
Plan (“Exhibit H”);
(c) Content
Development Plan (“Exhibit I”),
(d) Public/Investor
Relations Plan (“Exhibit J”);
(e) Device
Labeling Plan (“Exhibit K”); and
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(f)
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Such
other plans as may be added by way of additional exhibits from
time to
time by mutual agreement between the
parties.
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Confidential
Treatment Request -- Redacted Copy
1.13 “Production”
or “Produce” or “Produced” or “Producing” means the
manufacture of any Device from the date of mass production off hard tool (see
Exhibit I – PVT - “Production Plan”) by Samsung or its Permitted
Subcontractors.
1.14 “PureDepth
Patents” means
issued patents owned
by PureDepth as of the Effective Date, as listed in Exhibit B
(“PureDepth Patents”), as well as any renewals, reissues, and reexaminations
thereon and any future patents issued after the Effective Date (and which
will
be deemed to be added to Exhibit B (“PureDepth Patents”) upon
issuance).
1.15 “PureDepth
Pending Applications” means any patent application whether or not published,
beneficially owned or legally owned by PureDepth.
1.16 “Quarter”
and “Quarterly” means the calendar quarters ending 31 March, 30 June, 30
September and 31 December in any calendar year.
1.17 “Territory”
means the described territory for each particular Device, as set forth in
the
applicable Device Appendix.
2. Device
Appendix. The Devices to be licensed in the specified/applicable
Fields of Use by PureDepth to Samsung under the terms of this Agreement will
be
added to this Agreement from time to time, on a Device by Device basis, by
means
of a Device Appendix substantially in the form of Exhibit A (“Sample
Device Appendix”). Each Device Appendix will describe, at a minimum,
the applicable Device, the Field of Use, the Field of Use Exclusions, the
Territory, royalty payments, certain key Milestones required to be met by
either
party and the scope of the license grant by PureDepth to Samsung that are
specific to licensing of the Device. Once the parties have reached
agreement with respect to the terms under which a particular Device will
be
licensed, PureDepth will memorialize such information in the form of a Device
Appendix to be signed by the authorized representatives of the
parties. Once the Device Appendix is signed by the authorized
representatives of the parties it will form part of this Agreement and become
binding on the parties.
3. License
Grants.
3.1 Patent
License. Subject to and expressly conditional upon compliance
with the terms and conditions of this Agreement, including payment of all
royalties due hereunder, and provided Samsung is otherwise not in material
breach under this Agreement, PureDepth hereby grants to Samsung a
non-transferable (subject to Section 17.6 (“Assignment”)), limited license
under the PureDepth Patents to make, have made, Produce, use, import, sell
and
offer to sell Devices in the applicable Field of Use and Territory under
the
Samsung brand (and not private labeled) without further right to sublicense
such
rights (except to Permitted Subcontractors). While the ambit of the
license granted by PureDepth to Samsung hereunder as well as the Territory
for
each Device is specified in each applicable Device Appendix, for clarity,
PureDepth confirms that, as set out in each Device Appendix, as at
the Effective Date, PureDepth will not grant a license under the PureDepth
Patents allowing a third party to enter the applicable Field of Use and
Territory during the applicable Exclusive Period.
Confidential
Treatment Request -- Redacted Copy
3.2 Know-How
License. Subject to the terms of this Agreement and payment of
royalties due, PureDepth hereby grants to Samsung a non-exclusive,
non-transferable (subject to Section 17.6 (“Assignment”)), limited license
in the applicable Field of Use and Territory to use the Know-How in the course
of developing the Devices. While the ambit of the license granted by
PureDepth to Samsung hereunder as well as the Territory for each Device are
specified in each applicable Device Appendix, for clarity, PureDepth confirms
that, as set out in each Device Appendix, as at the Effective Date, PureDepth
will not grant a license allowing a third party to use the Know-How in the
applicable Field of Use and Territory during the applicable Exclusive
Period. Said Know How License will be sublicenseable to Permitted
Subcontractors only. Such Know-How will be disclosed solely to
employees of Samsung and Permitted Subcontractors on a need-to-know basis.
With
respect to Permitted Subcontractors, Samsung will ensure each of the relevant
Permitted Subcontractors executes both an appropriate non-disclosure agreement
and subcontractor agreement in, or substantially in, the form set out in
Exhibits D and E, respectively.
3.3 Improvements.
(i) Samsung
hereby grants PureDepth under Samsung’s intellectual property rights a
[****] to make, have made, market, use, sell, distribute and
import or export products and, [****], in:
[****]
(b) The
parties agree that, for the purposes of this section 3.3(a)
[****] are incorporated into further separate Device Appendices
duly executed by the parties.
3.4 Sublicensing
of Improvements.
(a) With
reference to sections 3.3(a) (iii) and 3.3(i) of this Agreement,
PureDepth’s right to [****] provided that:
(i)
the total royalty payable to [****] incorporated.
(ii) the
royalty shall only be payable to [****] applications within or
outside the Territory in respect of which the sublicense is to be
granted.
(b) With
reference further to section 3.3(a)(iv) of this Agreement:
(i) PureDepth
acknowledges and agrees that [****];
(ii) Samsung
acknowledges and agrees, however, that [****];
(iii) accordingly,
both parties agree to [****] this Agreement) the further or
additional and applicable terms of section 3,3(a)(iv), and
For
the
avoidance of doubt, the license granted under section 3.3 of this agreement,
(including but not limited to make, use, sell etc.)
[****].
3.5 Notification
of Improvement. Samsung will [****], before the
end of the quarter in which the Improvement was conceived by Samsung (or
where
applicable, Samsung’s component manufacturers) at [****], as
applicable.
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Treatment Request -- Redacted Copy
4. Technology
Transfer.
4.1 Disclosure
and Training. During the term of both the MOU and the Variation,
PureDepth has disclosed and made available to Samsung confidential information
memorialized in the Technical Transfer Information. PureDepth has
made and will continue to make personnel available to provide such further
training and supply of Technical Transfer Information to Samsung personnel
as
reasonably required (at PureDepth’s reasonable
discretion).
4.2 Use
of Facilities. In order to facilitate face-to-face time for the
requisite technical transfer, Samsung personnel have and may/will further
be
sent to PureDepth facilities in New Zealand, or other suitable location,
and
PureDepth personnel have and may/will be further be sent to Samsung facilities
as described in the applicable Device Appendix. All travel costs have
and will for travel including reasonable meals and lodging by Samsung and
PureDepth personnel will be borne by Samsung for Samsung personnel and by
PureDepth for PureDepth personnel. PureDepth has and will
further provide office space and desks for Samsung representatives,
as well as phone/fax and Internet access during the training
periods. The use of PureDepth’s facilities by Samsung as provided
herein will be provided during this time by PureDepth at no
charge. In like manner, Samsung has and will provide further use of
Samsung’s facilities to visiting PureDepth personnel during training periods at
no charge. PureDepth and Samsung has and will at all times retain the
administrative supervision of their respective personnel during visits to
each
other’s facilities. PureDepth and Samsung’s personnel have and will,
while on location of the other party, comply with the other party’s rules and
regulations with regard to safety and security.
4.3 Solicitation. Samsung
and PureDepth hereby agree that neither party will directly hire as its own
employee(s) or contract with as its independent contractor(s) any employees
of
the other party, including all technical personnel, during the term of this
Agreement and for a period of at least [****] years from the
termination or expiration of this Agreement, except as may be mutually agreed
upon between the parties; except where such prospective employee responds
to
general advertisements for employment or independent contractor
positions.
5. Milestones
and Plans. Subject to the terms of Section 6 (“Trademarks”)
and Section 7 (“Administrative Procedures), both parties, in addition to
the representations and warranties set out in Section 12 of this Agreement,
will
[****], to/in respect of Device Appendix No 1 and thereafter
to
any other Device Appendix added to and or further amended pursuant to the
terms
of this Agreement.
6. Trademarks. Subject
to the procedures set forth in Section 7 (“Administrative Procedures”)
below and PureDepth’s prior written approval, PureDepth hereby grants to Samsung
a nonexclusive, nontransferable (subject to Section 17.6 (“Assignment”))
limited license, to use the trademark(s) designated by PureDepth (“Trademarks”)
in connection with marketing the Devices, and Samsung agrees to use such
Trademarks on and in connection with each Device. Samsung
acknowledges that all use of the Trademarks will inure to the benefit of
PureDepth. Samsung will not register PureDepth’s Trademarks in any
jurisdiction and will not adopt any trademark for use on any Device which
is
confusingly similar to any trademark of PureDepth or which includes a prominent
portion of any trademark of PureDepth. At PureDepth’s reasonable
request, Samsung will provide Samsung with samples of Samsung’s use of
PureDepth’s Trademarks. Samsung agrees to abide by PureDepth’s
reasonable written trademark policies as issued and provided to Samsung from
time to time. In any case where the Trademarks are not used in
compliance with PureDepth’s trademark policies, upon receipt of written notice
from PureDepth, Samsung will promptly correct the non-compliance and submit
samples of compliant use to PureDepth for approval.
7. Administrative
Procedures. The parties will agree the minimum specification in
relation to all [****] as incorporated within or released as
part of each Device (“Specification”). The parties agree that in
order to provide PureDepth with appropriate information necessary for the
orderly administration of the Patents and Trademarks, [****]
prior to the first commercial shipment of each Device or updated models of
said
Device, Samsung will provide PureDepth with detailed engineering drawings
of the
relevant Device (and as soon as practicably possible thereafter at most
[****] of the applicable Devices(s)) to enable PureDepth to
review and agree with Samsung the proposed use of labeling as set forth Exhibit
K.
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8. Financial
Terms.
8.1 Royalties. In
consideration of the licenses granted by PureDepth in Section 3 (“License
Grants”) to Samsung hereunder, Samsung will pay PureDepth a royalty based on the
number of Devices Produced. Samsung will report royalties payable on
a Quarterly basis in the “Royalty Reporting Form”, described in Section 9.1
(“Royalty Reporting”), by the fifth (5th) day of
the month
following the end of each Quarter. Payment of such royalties will be
[****] following the end of each [****]
(“Payments”).
8.2 Payments. Payments
by Samsung to PureDepth must be made either by wire transfer to an account
nominated by PureDepth or by check drawn from a U.S. bank. Payments
will be made in U.S. Dollars unless PureDepth, in its sole discretion, nominates
an alternate currency. Payments not received when due will accrue
interest at the rate [****] per month or the maximum amount
allowed by law (whichever is less), calculated from the due date.
8.3 Taxes. With
the exception of PureDepth’s obligation to meet its own income taxes, Samsung
agrees to pay, indemnify and hold PureDepth harmless from any sales, use,
excise, import or export, value-added, or similar tax or duty, and any other
tax
or duty not based on PureDepth’s net income (“Transfer Taxes”), and all
government permit fees, license fees, customs fees or similar fees (“Fees”)
based on any Payment, and any penalties, interest, collection costs and
withholding costs associated with any of the foregoing items (“Additional
Costs”). Taxes, Fees and Additional Costs required to be paid by
Samsung pursuant to this Section 8.3 are in addition to, and may not be claimed
as a reduction or offset against, any Payments. Payments will be made
subject to the required withholding of any government with
jurisdiction. Samsung will keep and maintain complete and accurate
accounting records of any withholding taxes required by any jurisdiction
and
will fully cooperate with PureDepth’s efforts to obtain credits of taxes paid or
withheld, where appropriate.
9. Report
and Audit.
9.1 Royalty
Reporting. On or before the fifth day following the end of each
Quarter during this Agreement and in connection with each Quarterly Payment
due
pursuant to Section 8.1 (“Royalties”), Samsung will provide PureDepth with
a binding written report (“Royalty Report”), in the form of the sample royalty
report form included in Exhibit C (“Sample Royalty Report Form”) as
such form may be revised by the parties from time to time, which details
the
calculation of the Royalties due.
9.2 Audit. Samsung
will keep records and accounts reasonably sufficient to show, verify, and
document its calculations of number of Device units Produced and Royalties
due
hereunder. These records will be retained for at least
[****] from the date of expiration or termination of this
Agreement. PureDepth, through its designated, independent, certified
public accounting firm will have the right to examine and inspect all accounts,
books and records of Samsung, as may contain information reasonably bearing
upon
the amount of Royalties payable to PureDepth under this Agreement and the
accuracy and correctness of Samsung’s reports and payments under this
Agreement. Inspections will be scheduled with reasonable advance
written notice on a mutually agreed upon date and will be conducted in a
manner
that is intended to avoid disrupting Samsung’s business and may not occur more
than twice in any calendar year, unless an earlier inspection in that calendar
year showed that less than ninety-five percent (95%) of the Royalties due
to
PureDepth in that applicable year have been paid by Samsung (in which
case [****] may be conducted during that contract year), and
must be during normal business hours at times reasonably acceptable to
Samsung. In the event that an examination discloses an error by
Samsung (for whatever reason) of more than [****] the of
Royalties paid or due to PureDepth for the period under audit, Samsung will
fully and promptly (within no more than [****] of completion of
audit) indemnify and reimburse PureDepth for all PureDepth’s costs and expenses
of the examination, and will promptly pay to PureDepth the amount of the
Royalties due to PureDepth. Samsung will promptly pay PureDepth any
underpayment discovered in the audit, along with interest at the rate of
[****] per month or the maximum amount allowed by law
(whichever is less), calculated from the due date.
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10. Intellectual
Property.
10.1 Ownership
of Intellectual Property. PureDepth is the owner of the PureDepth
Patents. Nothing in this Agreement is intended to transfer the
ownership of any intellectual property owned or licensed by either
party.
10.2 Notice
of Third Party Infringement. Either party will promptly inform the other
party of any suspected infringement of any Licensed Intellectual Property
by a
third party. Either party will additionally provide reasonable
assistance to the other party in the investigation of any suspected infringement
as they relate to the Fields of Use, including preparation for any action
for
infringement and pursuit of any action for infringement.
10.3 Infringement
Actions. Subject to the provisions of Section 10.4
(“Consultation”) of this Agreement, during the Term, Samsung agrees that
PureDepth has the sole right to institute an action for infringement with
respect to the PureDepth Patents against a third party. Where such
infringement is causing Samsung material financial damage and (a) upon request
from PureDepth, Samsung will provide PureDepth with substantiating documentation
of such financial damage, and (b) PureDepth has not instituted an action
for infringement, the parties may negotiate the right to institute such action
or other remedies as the parties agree between them.
10.4 Consultation. Prior
to the commencement of any action by PureDepth, PureDepth will both notify
and
consult with Samsung in relation to both the suspected infringement and proposed
action to be instigated by PureDepth.
10.5 Validity
of PureDepth Patents. PureDepth retains the right to terminate
this Agreement upon written notice, if [****]
10.6 Suspension. In
the event Samsung (as the “Suing Party”) brings a claim for patent infringement
against PureDepth (as the “Defending Party”) or any of PureDepth’s affiliates in
any court of competent jurisdiction, PureDepth as the Defending Party may
immediately and retroactively suspend the licenses granted in Section 3
(“License Grants”) hereunder to Samsung as the Suing Party until such claim has
been settled to the satisfaction of PureDepth as the Defending
Party. In any discussion of a settlement of such patent claim,
[****].
10.7 No
Implied License. Nothing contained in this Agreement will be
construed as conferring any rights by implication, estoppel or otherwise,
to or
under any patents other than the PureDepth Patents, or any non-patent
intellectual property right, now or hereafter owned or licensed by PureDepth,
other than the licenses granted to the Know-How under the terms of
Section 3.2 (“Know-How License”) or the use of Confidential Information
provided in Section 11 (“Confidentiality”). Neither party is required
hereunder to furnish or disclose to the other any technical or other information
except as expressly provided herein. No license, immunity or other
right is granted under this Agreement with respect to the Licensed Intellectual
Property, either directly or by implication, estoppel, or
otherwise: (a) with respect to any item other than a Device
notwithstanding that such other item may be combined with or incorporate
one or
more Devices; or (b) to third parties acquiring a Device from Samsung for
purposes of combining such Device with any other item, including other items
provided by Samsung, or for the use of any such combination even if such
item
has no substantial use other than as part of such combination.
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10.8 No
Action. Except where compelled under court ordered subpoena,
Samsung will not assist a third party in seeking a holding by a court or
administrative agency of competent jurisdiction that any of the PureDepth
Patents or the PureDepth Pending Application are invalid or unenforceable
or
otherwise assist a third party in requesting a reexamination or review of
the
PureDepth Patents or the PureDepth Pending Application by any such court
or
agencies. Samsung agrees that if the validity or enforceability of a
PureDepth Patent is contested, Samsung will continue to pay any royalties
that
would otherwise be due with respect to such PureDepth Patent pursuant to
and in
accordance with the terms of this Agreement until such time as there is a
determination of invalidity or unenforceability with respect to such PureDepth
Patent by a court or administrative agency of competent jurisdiction, at
which
time Samsung’s obligation to pay royalties will be governed by this Section
10.8. If Samsung ceases to pay any royalties that would otherwise be
due with respect to a PureDepth Patent pursuant to and in accordance with
the
terms of this Agreement prior to any determination of invalidity or
unenforceability, Samsung will be deemed to have materially breached this
Agreement and PureDepth will be free to exercise its rights including, but
not
limited to, the termination of this Agreement.
11. Confidentiality.
11.1 Ownership. Samsung
acknowledges that the Confidential Information (including all rights thereto)
is, as between PureDepth and Samsung, the absolute property of PureDepth,
and at
all times will remain the absolute property of PureDepth.
11.2 No
Implied License. Samsung acknowledges that nothing in this
Agreement will be construed as granting or conferring any rights by license
or
otherwise in the Confidential Information, except as expressly provided herein
or as may be subsequently agreed in writing by the parties. Samsung
acknowledges that Samsung acquires under this Agreement only a limited right
to
use the Confidential Information solely for the purposes of this Agreement
and
subject to the terms and conditions of this Agreement.
11.3 Limited
Use. With respect to the Confidential Information, Samsung will:
(a) take all reasonable measures to keep all the Confidential Information
secure and in Samsung’s possession and treat all the Confidential Information as
confidential regardless of when disclosed; (b) not deal with or use the
Confidential Information in any way other than for the purposes expressly
permitted herein and, in the case of any uncertainty, will obtain prior written
clearance or instruction from PureDepth; (c) refrain from making or having
or allowing to be made any copies or duplicates of the Confidential Information
other than those reasonably required for the purposes expressly permitted
herein; (d) limit access to the Confidential Information to those of
Samsung’s employees and the Permitted Subcontractors reasonably requiring such
Confidential Information for the purposes expressly permitted
herein; (e) not, without the prior written approval of an
authorized employee of PureDepth, make use of any of the Confidential
Information or circulate it within Samsung’s own organization except to the
extent necessary for: (i) negotiations, discussions and consultations with
personnel or authorized representatives of PureDepth; (ii) supplying
PureDepth with goods or services at PureDepth order; or (iii) designing and
manufacturing the Devices as permitted under the terms of this Agreement;
(f) ensuring that all employees given access to the Confidential
Information comply with the terms of this Agreement; and (g) not use any of
the Confidential Information in any way which will be harmful to the commercial
interests of PureDepth. Samsung acknowledges that the Confidential
Information has commercial value to PureDepth, and loss or damage will be
sustained by PureDepth if the Confidential Information is dealt with, used
or
disclosed by Samsung other than for the purposes expressly permitted hereunder
and other than strictly in accordance with the terms of this
Agreement.
11.4 Disclosure
of Confidential Information by Samsung. To fulfill the purposes
of this Agreement, Samsung may wish to disclose Confidential Information
to
third parties or Permitted Subcontractors.
(a) Permitted
Subcontractor Disclosure. Where disclosure is to Permitted
Subcontractors, Samsung hereby undertakes that prior to such disclosure Samsung
will:
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(i) Provide
written notice to PureDepth as to the identity of the Permitted Subcontractor;
and
(ii) Execute
both a non-disclosure agreement in, or substantially in, the form attached
hereto as Exhibit D (“Form of Nondisclosure”) and a subcontractor agreement in,
or substantially in, the form attached hereto as Exhibit E (“Form of
Subcontractor Agreement”) with the Permitted Subcontractor.
(b) Other
Third Party Disclosure. Where disclosure is to third parties other than
Permitted Subcontractors, such disclosure may only be made with the prior
written consent of PureDepth and which consent may be on such terms and
conditions as PureDepth sees fit and with respect to any subset of Confidential
Information that PureDepth permits.
(c) Samsung
will take all necessary measures to prevent improper use of the Confidential
Information by any third party, or any Permitted Subcontractor, to whom Samsung
has disclosed any Confidential Information (“Receiving Party”) and
prevent the improper disclosure of the Confidential Information by the Receiving
Party. Samsung agrees that any breach by the Receiving Party under
the terms of the Form of Non-Disclosure will be deemed to be a breach by
Samsung
of the terms of this Agreement. PureDepth will be entitled to seek
any remedy at law or in equity with regards to such breach against the Receiving
Party or Samsung in PureDepth’s sole discretion.
11.5 Indemnification
by Samsung. Except as permitted and anticipated by the terms of
this Agreement, Samsung will not divest itself of the Confidential Information
(or any part of it) or make copies of it in any circumstances which could
lead
to Samsung being unable to at any time, upon the written request of PureDepth,
fully and completely return to PureDepth the Confidential Information furnished
to Samsung, without keeping any copies of the Confidential Information, in
any
medium. Samsung agrees to indemnify PureDepth from and against all
actions, claims, costs, demands, expenses, liabilities, losses, payments
and
proceedings whatsoever incurred or suffered by PureDepth [****]
or any of its respective officers, Receiving Party, Permitted Subcontractor,
employees or advisors or which otherwise arise from Samsung and/or any of
such
persons being in breach of any of the provisions of this Agreement.
11.6 Public
Company. Without limiting Section 11 (“Confidentiality”), Samsung
acknowledges that PureDepth is a public reporting company, and any financial
information that may be disclosed to Samsung is, as at the date of this
Agreement, “material nonpublic information” concerning a public corporation that
is subject to the reporting requirements of the Securities and Exchange Act
of
1934. Accordingly, until PureDepth has filed its current or periodic
reports on Form 8-K and/or Form 10-QSB containing any such material nonpublic
information of PureDepth so disclosed to Samsung (or until PureDepth will
have
otherwise sooner publicly disclosed such information), Samsung agrees
NOT to: (a) buy or sell (including any short sell of) any security, option,
bond or warrant of PureDepth (other than securities that may be issued directly
by PureDepth to Samsung in connection with this Agreement or in partial or
complete fulfillment of the Purpose); or (b) provide any other person, firm
or entity with such material nonpublic information, including any relative,
associate or other individual who intends to or may: (i) trade PureDepth
securities (including short sales of such securities); or (ii) otherwise
directly or indirectly benefit from such information.
12. Representations
and Warranties.
12.1 Representations
of Samsung. Samsung represents and warrants to PureDepth
[****]:
(a) Corporate
Organization, Good Standing, Etc. Samsung is a corporation duly
incorporated, validly existing and good standing under the laws of Korea
and has
all corporate power and authority to own, lease and operate its properties
and
to carry on its businesses as currently conducted and as proposed to be
conducted. Samsung has all necessary corporate power and authority to
enter into this Agreement and to perform its obligations hereunder;
Confidential
Treatment Request -- Redacted Copy
(b) Due
Authorization, Etc. This Agreement has been duly authorized,
executed and delivered by Samsung and constitutes the legal, valid and binding
obligation of Samsung, enforceable against it in accordance with its terms,
subject to any applicable bankruptcy, insolvency, reorganization, moratorium
or
similar laws affecting creditors’ rights generally, and general principles of
equity;
(c) Compliance
with Law. Samsung hereby gives written assurance that it will
[****] of the applicable jurisdiction. Samsung bears
sole responsibility for any violations of [****] by Samsung or
Samsung’s Devices, and Samsung will [****] of any such
violation.
(d) Product
Liability Insurance. Samsung has [****] coverage
and agrees to keep such product liability insurance in effect during the
term of
this Agreement. Samsung will promptly cause PureDepth to be named as
an additional insured on such policy.
12.2 Representations
of PureDepth. PureDepth represents and warrants to Samsung
[****]:
(a) Due
Organization, Good Standing, Etc. PureDepth is a corporation duly
incorporated, validly existing and good standing under the laws of the State
of
Delaware and has all corporate power and authority to own, lease and operate
its
properties and to carry on its businesses as currently conducted and as proposed
to be conducted. PureDepth has all necessary corporate power and
authority to enter into this Agreement, to grant the rights to be granted
to
Samsung hereunder and to perform its obligations hereunder; and
(b) Due
Authorization, Etc. This Agreement has been duly authorized,
executed and delivered by PureDepth and constitutes the legal, valid and
binding
obligation of PureDepth, enforceable against it in accordance with its terms,
subject to any applicable bankruptcy, insolvency, reorganization, moratorium
or
similar laws affecting creditors’ rights generally, and general principles of
equity.
(c) [****]
Subject to Sections [****], PureDepth [****]
The parties acknowledge and agree that
the foregoing PureDepth
[****] used with the PureDepth Patents.
12.3 Disclaimer. With
respect to the role of PureDepth as a licensor to Samsung under the terms
of
Section 3 (“License Grants”) and any applicable Device Appendix,
[****] will be construed (i) as a [****];
(ii) [****], or other rights of third parties; (iii) as
imposing on PureDepth any [****] of any Licensed Intellectual
Property, or to [****] of any Licensed Intellectual Property;
(iv) as granting by implication, estoppel or otherwise any licenses or
rights under patents or other intellectual property rights of PureDepth other
than expressly granted herein, regardless of [****];
(v) imposing on PureDepth any obligation to [****] to
secure or maintain in force any [****]; (vi) as a
warranty that PureDepth will be successful in [****];
(vii) to require PureDepth to [****] PureDepth’s patent
rights. PureDepth does not assume any responsibility for the
manufacture of or use of any [****] or Permitted Subcontractors
under the patent license granted herein; or (vii) as a [****]
of any Licensed Product Produced, used or sold pursuant to this
Agreement. All warranties in connection with
[****]. PUREDEPTH DOES NOT MAKE ANY OTHER
REPRESENTATIONS OR WARRANTIES OR OBLIGATIONS, EXPRESS OR IMPLIED, INCLUDING
BUT
NOT LIMITED TO [****] OR OTHER RIGHTS OF THIRD PARTIES DUE TO
SAMSUNG’S OPERATION UNDER THE LICENSES HEREIN GRANTED. THE PUREDEPTH
PATENTS, KNOW-HOW, ANY SPECIFICATION, OTHER DOCUMENTATION AND RELATED
INTELLECTUAL PROPERTY [****].
Confidential
Treatment Request -- Redacted Copy
13. Indemnification.
13.1 Notwithstanding
the foregoing provisions of this Agreement:
(a) Personal
Injury and Property Claims. [****] (including
court costs and reasonable attorneys’ and experts’ fees) (collectively, “Costs”)
suffered or incurred [****] claim arises from a product
liability claim, personal injury or alleged personal injury or property damage
or alleged property damage [****].
(b) Patent
Infringement. [****] subject to the terms of
Section 14 and 15 following, [****] (to the extent such third
party claim or threatened claim arises out of or flows from any action in
a
[****]) that such third party’s intellectual property rights in
[****] to it under this Agreement.
14. Limitation. IN
NO CASE WILL [****] THIS AGREEMENT, AND IN PARTICULAR SECTION
[****] SUCH LIABILITY.
15. Consequential
Damages. IN NO EVENT WILL [****]
BE LIABLE FOR LOST PROFITS, OR ANY
SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING
IN
ANY WAY IN CONNECTION WITH THIS AGREEMENT. THIS LIMITATION WILL APPLY
EVEN IF [****] HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND NOT WITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
16. Termination.
16.1 Term. Subject
to the overriding provisions of this Agreement, this Agreement will commence
on
the Effective Date and will, in relation to each Device Appendix, expire
upon
the latest expiration date set out in each Device Appendix.
16.2 Termination
for Cause. Either party may terminate this Agreement if the other
party materially breaches this Agreement and fails to cure such breach within
[****] after receiving written notice
thereof. Thereafter, the non-breaching party may, at such
non-breaching party’s option and in addition to any other remedy that such
non-breaching party might be entitled to, terminate this Agreement by written
notice to the breaching party, which notice of termination will be effective
upon receipt.
16.3 Termination
for Insolvency. Either party may terminate this Agreement by
written notice if the other party: (a) files a petition, or has a petition
filed
against it, under any laws relating to insolvency, and the related insolvency
proceedings are not dismissed within sixty (60) days after the filing of
such
petition; (b) enters into any voluntary arrangement for the benefit of its
creditors; (c) appoints, or has appointed on its behalf, a receiver, liquidator
or trustee of any of such party's property or assets; or (d) ceases to carry
on
business in the ordinary course.
16.4 Termination
for Other Valid Reasons. Notwithstanding the legally binding
obligations of the parties created by the terms of this Agreement, either
party
may terminate this Agreement on [****] written notice to the
other party within [****] calendar months from the Effective
Date, if:
(a) In
the case of Samsung:
(i) [****]
after duly complying with the provisions of Section 5, [****]
(and associated requirements as set out in the relevant Plans); and
Confidential
Treatment Request -- Redacted Copy
(ii) Samsung
has, via its duly appointed relationship executive (as detailed in Exhibit
F),
or other person as subsequently appointed by notice in writing to PureDepth
(“Samsung’s Representative”) has notified PureDepth in writing of the
[****] in Section 16.4(a)(i) and has expeditiously met with
PureDepth via PureDepth’s authorized relationship executive (likewise detailed
in Exhibit F) or such other person as subsequently appointed by notice in
writing to Samsung (“PureDepth’s Representative”), to [****]
(and associated requirements as set out in the relevant Plans) as well as
to
consider the impact of such issues to the balance of the Device Appendices;
and
(iii) Despite
[****] the Launch.
(b) In
the case of PureDepth:
(i) [****]
(and associated requirements as set on the relevant/applicable Plans); as
set
out in Device Appendix No. 1 and/or
(ii) [****]
(and associated requirements as set out in the relevant/applicable Plans)
as set
out in Device Appendix No. 1
(iii) PureDepth’s
Representative has notified Samsung in writing of the belief held in Section
16.4(b)(i) or 16.4(b)(ii) and has expeditiously met with Samsung’s
Representative to [****] in Device Appendix No. 1 as well as to
consider the impact of such issues to the balance of the Device Appendices;
and
(iv) [****]
16.5 Effect
of Termination. Notwithstanding termination or expiration of this
Agreement due to any reason of responsibilities by Samsung, Samsung agrees
to
pay PureDepth for Royalties due up to the effective date of
termination. Upon termination or expiration of this Agreement,
Samsung will have ninety (90) days to distribute any remaining inventory
of
Devices in process and in existence as of the effective date of the termination,
subject to the obligation of Samsung to pay royalties to PureDepth for any
Devices Produced by Samsung during such ninety (90) day period. Upon
termination or expiration of this Agreement, Samsung will return, or
upon PureDepth’s request, destroy, within ten (10) days, all PureDepth
Confidential Information. Samsung will provide PureDepth with a
written declaration that all Confidential Information has been returned or
destroyed, as applicable. Samsung will also procure a written
declaration to this effect from Receiving Parties. Termination or expiration
of
this Agreement for any reason, will not be construed to release any party
from
any obligation accrued prior to the effective date of such termination or
expiration. EXCEPT FOR [****] OF THE TERMS OF
THIS AGREEMENT, [****] THIS AGREEMENT IN ACCORDANCE WITH THE
TERMS OF THIS AGREEMENT.
17. General
Provisions.
17.1 Expenses
of the Parties. Each party will pay such party’s own expenses
incurred in connection with the negotiation, execution and performance of
this
Agreement except as otherwise provided herein.
Confidential
Treatment Request -- Redacted Copy
17.2 Waiver. No
term or provision hereof will be considered waived by either party, and no
breach excused by either party, unless such waiver or consent is in writing
and
signed by an authorized representative on behalf of the party against whom
the
waiver is asserted. No consent by either party to, or waiver of, a
breach by either party, whether express or implied, will constitute a consent
to, waiver of, or excuse of any other different or subsequent breach by either
party.
17.3 Amendment
and Modification. This Agreement may be amended, modified and
supplemented by means of a written amendment, signed by the authorized
representatives of the parties, which specifically refers to this
Agreement.
17.4 Notices. Any
notice to any party hereto given pursuant to this Agreement will be given
by
certified or registered first-class mail, return receipt requested, addressed
as
follows:
| If
to Samsung to: | _________________________ |
| | _________________________ |
| | _________________________ |
| | Attention:_________________ |
| | |
| If
to PureDepth: | PureDepth,
Inc. |
| | 000
Xxxxxxxxx Xxxxx, Xxxxx
000 |
| | Xxxxxxx
Xxxx, Xxxxxxxxxx,
00000 |
| | Attention: Xxx
XxXxxxx, CFO |
| | Xxx.xxxxxxx@xxxxxxxxx.xxx |
| | Fax: 000-000-0000 |
| | |
| With
a copy to: | PureDepth,
Inc. |
| | 000
Xxxxxxxxx Xxxxx, Xxxxx
000 |
| | Xxxxxxx
Xxxx, Xxxxxxxxxx,
00000 |
| | Attention: Xxxxxxx
Xxxxxxxxxx, General Counsel |
| | Email:
Xxxxxxx.xxxxxxxxxx@xxxxxxxxx.xxx |
| | Fax: 000-000-0000 |
Any
such
address may be changed by any party by written notice to the other party
as
described herein. Any notice will be deemed delivered when placed for
delivery so addressed with postage or other charges prepaid.
17.5 Governing
Law. This Agreement will be deemed to be executed and performed
in the United States of America, State of
California, County of San Mateo,
and
will be construed in accordance with the laws of the State of
California
as to
all matters, including, but not limited to, matters of validity, construction,
effect and performance, without regard to
California law pertaining to conflicts
or choice of law.
17.6 Assignment. This
Agreement will inure to the benefit of, and be binding upon and enforceable
against, the respective successors and assigns of the parties hereto but
may not
be assigned by Samsung without the prior written consent of
PureDepth. This Agreement may be assigned by PureDepth.
Confidential
Treatment Request -- Redacted Copy
17.7 Headings. Headings
are supplied herein for convenience only and will not be deemed a part of
this
Agreement for any purpose.
17.8 Counterparts. This
Agreement may be executed in any number of counterparts, each of which will
be
deemed an original for all purposes, but all of which together will constitute
one and the same instrument. The parties agree that faxed signature
pages will be treated as original signature pages.
17.9 Severability. If
any term or provision of this Agreement or the application thereof to any
person
or circumstances will to any extent be invalid or unenforceable, the remainder
of this Agreement or the application of such terms or provisions to persons
or
circumstances other than those as to which it is invalid or unenforceable,
will
not be affected thereby and each term and provision of this Agreement will
be
valid and enforceable to the fullest extent permitted by law.
17.10 Independent
Contractors. Each party is an independent contractor and will act
under its own direction and initiative in performing its obligations under
this
Agreement. This Agreement will not create a principal/agent,
employer/employee or partnership relationship between Samsung and
PureDepth. In no event will either party have any authority to (i)
direct or control the day-to-day activities of the other party or (ii) assume
or
create any contract, liability or obligation, express or implied, on behalf
of
the other party.
17.11 No
Third Party Beneficiaries. Except as set forth herein, this
Agreement will not confer any rights or remedies on any party, person or
third
party.
17.12 Publicity. Except
as may be required by law, Samsung will not disclose any of the provisions
of
this Agreement without the prior written consent of PureDepth.
17.13 Export. The
parties acknowledge that implementations of the PureDepth Confidential
Information may be subject to U.S. Export Administration Regulations or
equivalent laws in other jurisdictions that may apply in countries where
implementation or other activity under the licenses granted herein takes
place.
Samsung agrees that Samsung will not export or re-export the Devices without
the
appropriate licenses or approvals from the applicable governmental
entities.
17.14 Force
Majeure. With the exception of payment of monies due, neither
party will be responsible to the other for delay or failure in performance
of
any of the obligations imposed by this Agreement, provided that, such failure
will be occasioned by fire, flood, explosion, lightning, windstorm, earthquake,
subsidence of soil, failure of machinery or equipment or supply of materials, discontinuity
in
the supply of power, court order or governmental interference, civil
commotion, riot, act
of terrorism, war, strikes, labor disturbances, transportation
difficulties, labor
shortage, natural genetic variations of any living matter or by any cause
of
like or unlike nature beyond the reasonable control and without the fault
or
negligence of such parties.
17.15 Press
Release. Press Release. The parties will agree to a joint press
release with regard to the [****], however PureDepth may, as
required by law, file or publish this Agreement (including without limitation,
pursuant to Securities and Exchange Commission's requirements to report under
a
Current Report on Form 8-K) after the submission to, and review by Samsung,
within [****]
of this Agreement. Samsung agrees to
credit appropriately PureDepth in all press releases, promotions, advertisements
and announcements that mention the Devices. Samsung agrees
that PureDepth
may indicate that Samsung is a licensee of the PureDepth Patents in
PureDepth’s
promotional
materials.
17.16 Rights
and Remedies. In the event of any breach of or default under this
Agreement by a party, the other party may suffer irreparable harm and have
no
adequate remedy at law. In the event of any such breach or default,
or any threat of such breach or default, the non-breaching party will be
entitled to injunctive relief, specific performance and other equitable
relief. Further, in any legal action or other proceeding in
connection with this Agreement (e.g., to recover damages or other relief),
the
non-breaching party will be entitled to recover, in addition to any other
relief
to which it may be entitled, such non-breaching party’s reasonable attorneys'
fees and other costs incurred in that action or proceeding. The
rights and remedies of the non-breaching party under this Section 17.16 are
in
addition to, and not in lieu of, any other right or remedy afforded to the
non-breaching party under any other provision of this Agreement, by law or
otherwise.
Confidential
Treatment Request -- Redacted Copy
17.17 Survival. In
the case of any termination or expiration of this Agreement, Section 3.3
(“Improvements”), Section 0 (“Notification of Improvements”), Section 8.1
(“Royalties”), Section 8.2 (“Payments”), Section 9.2 (“Audit”), Section 11
(“Confidentiality”), Section [****] Section 16.5 (“Effect of
Termination”) and Section 17 (“General Provisions”) will survive such
termination or expirations.
17.18 Construction. This
Agreement reflects the wording accepted by the parties and no rule of
construction will apply against either party.
17.19 Entire
Agreement. This Agreement will not be binding
upon the parties and will not obligate either of the parties, until it has
been
signed herein below by both parties. With the exception of, those
provisions set out in [****] that are to survive (being
[****], respectively), this
Agreement comprises the entire agreement between the parties hereto as to
the
subject matter hereof and supersedes all prior discussions, agreements and
understandings, written or oral, between them relating thereto.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
the authorized representative of each of the parties.
|
“SAMSUNG”:
|
“PUREDEPTH”:
|
| | |
|
SAMSUNG
ELECTRONICS CO. LTD.
|
PUREDEPTH,
INC.
|
| | |
|
By: __________________________________
|
By: ______________________________
|
|
Print
Name: ____________________________
|
Print
Name:________________________
|
|
Title: _________________________________
|
Title: _____________________________
|
|
Date: _________________________________
|
Date: _____________________________
|
Confidential
Treatment Request -- Redacted Copy
EXHIBIT
A
Sample
Device Appendix No. ___
See
form
of Device Appendix No. 1 as example.
Confidential
Treatment Request -- Redacted
Copy
PureDepth
Patents
[****]
Confidential
Treatment Request -- Redacted
Copy
EXHIBIT
C
Sample
Royalty Report Form
[****]
Confidential
Treatment Request -- Redacted Copy
EXHIBIT
D
Form
of Nondisclosure
This
NON-DISCLOSURE AGREEMENT (the “Agreement”) is entered into on ____________,
_____ by and between COMPANY (상대회사공식명칭기입),
having its principal place of business at __________(상대회사주소기입)________________
(the “Receiving Party”) and Samsung Electronics Co., Ltd., having its place of
business at _______(당사주소기입)____________________,
Korea (the “Disclosing Party”)
Hereinafter
individually referred to as “Party” and collectively referred to as
“Parties”.
WHEREAS,
the Receiving Party desires to evaluate (discuss/cooperate) the business
relationship with respect to ____________________ provided by the Disclosing
Party (the “Purpose”), and
WHEREAS,
the Disclosing Party possesses certain confidential proprietary information
with
related to the Purpose, and
WHEREAS,
during the course of cooperation and discussions, it may become desirable
or
necessary for the Receiving Party hereto to receive certain confidential
proprietary information related to the Purpose disclosed by Disclosing Party,
and
WHEREAS,
the Disclosing Party desires to prevent the unauthorized use and disclosure
of
its confidential proprietary information.
NOW
THEREFOR, for the Purpose stated hereabove, the Parties enter into this
Agreement in accordance with the following terms and conditions:
|
1.
|
Confidential
Information.
|
For
the
Purpose of this Agreement, “Confidential Information” is defined as any and all
information owned, created, or possessed by the Disclosing Party that the
Disclosing Party desires to protect as confidential against unrestricted
disclosure or improper competitive use, including, but not limited to,
discoveries, ideas, concepts, know-how, techniques, designs, samples, software,
specifications, drawings, blueprints, computer programs and documentation,
proposals, patent applications, business information, strategic and development
plans, employee lists, business manuals, marketing plans, technical or financial
information whether conveyed as communications or data in oral, written,
graphic, or electromagnetic form or otherwise, and all other information
which
may be disclosed by the Disclosing Party or to which the Receiving Party
may be
provided access by the Disclosing Party or others in accordance with this
Agreement, which is not generally available to the public.
|
2.
|
Nondisclosure
Obligations.
|
The
Receiving Party promises and agrees to receive and hold the Confidential
Information in confidence, using all necessary measures to restrict disclosure
of the Confidential Information. Without limiting the generality of the
foregoing, the Receiving Party further promises and agrees:
Confidential
Treatment Request -- Redacted Copy
|
|
a.
|
to
protect and safeguard the Confidential Information against unauthorized
use, publication, or disclosure in any
manner;
|
|
|
b.
|
not
to use any of Confidential Information except for the
Purpose;
|
|
|
c.
|
not
to, directly or indirectly, in any way, reveal, reverse engineer,
de-compile, disassemble, report, publish, disclose, transfer or
otherwise
use any of the Confidential Information except as specifically
authorized
by the Disclosing Party in accordance with this
Agreement;
|
|
|
d.
|
not
to use any Confidential Information to unfairly compete or obtain
unfair
advantage vis a vis the Disclosing Party in any commercial
activity which may be comparable to the commercial activity contemplated
by the parties in connection with the
Purpose;
|
|
|
e.
|
to
restrict access to the Confidential Information to those of its
officers,
directors, employees who need such access to carry out the
Purpose;
|
|
f.
|
to
advise each of the persons or entities to whom it provides access
to any
of the Confidential Information that such persons or entities are
strictly
prohibited from making any use, publishing or otherwise disclosing
to
others, or permitting others to use for their benefit or to the
detriment
of the Disclosing Party, any of the Confidential Information, and,
provide
the Disclosing Party with a copy of a written agreement to that
effect, at
least as restrictive as this Agreement, signed by such persons
or
authorized representatives of the entity;
and
|
|
|
g.
|
to
comply with any other reasonable security measures requested in
writing by
the Disclosing party
|
The
confidentiality obligations hereunder shall not apply to Confidential
Information which the Receiving Party can prove that such
information:
|
|
a.
|
is,
or later becomes, public knowledge other than by breach of the
provisions
of this Agreement;
|
|
|
b.
|
is
already in the possession of the Receiving Party with the full
right to
disclose prior to its disclosure by the Disclosing Party, as evidenced
by
written records; or
|
|
|
c.
|
is
or has been lawfully disclosed by a third party to the Receiving
Party
without an obligation of confidentiality or other
restriction.
|
|
4.
|
Return
of Confidential Information.
|
The
Receiving Party agrees, upon termination of the Purpose or upon the written
request of the Disclosing Party, whichever is earlier, to:
|
|
a.
|
promptly
deliver to the Disclosing Party all records, notes, copies, and
other
written, printed, or tangible materials, in the possession of or
later
received by the Receiving Party, embodying or pertaining to the
Confidential Information.
|
|
|
b.
|
Procure
the return from all persons or entities to whom Confidential Information
has been disclosed, all copies, summaries, records, descriptions,
modifications, drawings, photographs, computer data bases and adaptations
of the documents, tangible items, or other communications as disclosed
or
generated, or which contain any information derived from such documents,
tangible items, other
communications.
|
Confidential
Treatment Request -- Redacted Copy
|
|
a.
|
Nothing
contained in this Agreement shall be construed as granting
or conferring
rights of license or otherwise in any information.
|
|
|
b.
|
Nothing
in this Agreement shall grant to either Party the right to make
commitments of any kind for or on behalf of the other Party. Each
Party to
this Agreement is an independent organization and no agency relationship,
joint venture, or partnership shall be created
thereby.
|
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|
c.
|
All
Confidential Information shall continue to be owned by the Disclosing
Party.
|
|
|
d.
|
The
Receiving Party further agrees that all inventions, improvements,
copyrightable works and designs relating to machines, methods,
compositions, or products of the Disclosing Party directly or indirectly
resulting from or relating to the Confidential Information and
the right
to market, use, license, and franchise the Confidential Information
or the
ideas, concepts, methods or practices embodied therein shall be
the
exclusive property of the Disclosing Party, and the Receiving Party
nor
its clients shall have no right or title
thereto.
|
|
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e.
|
The
Disclosing Party provides Confidential Information solely on an
“AS IS”
basis, with no warranty of any kind, express or implied, including
but not
limited to the warranties of merchantability, fitness for particular
purpose, or noninfringement. The Disclosing Party shall not be
liable to the Receiving Party for any indirect, consequential,
special, punitive, or other non-actual damages of any kind or nature
arising directly or indirectly from any of their obligations under
this
Agreement.
|
This
Agreement shall commence on the date first written above. The Receiving Party’s
right to use the Confidential Information shall continue in effect until
_____
year(s), or until the Disclosing Party provides the Receiving Party with
a
written notice of termination of such right, whichever is earlier.
Notwithstanding the foregoing, the Receiving Party’s obligations to protect the
Confidential Information shall survive and continue beyond any termination
or
expiration of this Agreement.
7. Losses.
The
Receiving Party agrees to indemnify the Disclosing Party against any and
all
losses, damages, claims, or expenses incurred of suffered by the Disclosing
Party as a result of the Receiving Party’s beach or threatened breach of this
Agreement or as a result of the unauthorized use of the Confidential Information
by those persons to whom the Receiving Party has granted access.
The
Receiving Party agrees and acknowledges that any disclosure or misappropriation
of any of the Confidential Information in violation of this Agreement may
cause
the Disclosing Party irreparable harm, the amount of which may be difficult
to
ascertain and for which monetary damages may be inadequate, and therefore
agrees
that the Disclosing Party shall be entitled to an injunction or restraining
order, without bond,
upon
ex parte or other petition to a court of competent jurisdiction,
restraining or enjoining any such further disclosure or misappropriation,
and
for such other relief as the Disclosing Party shall deem appropriate. This
right
to an injunction or restraining order shall not be construed to prohibit
the
Disclosing Party from pursuing any other remedies available to it at law
or in
equity, including the recovery of damages.
Confidential
Treatment Request -- Redacted Copy
Except
above, any and all disputes between the Parties in connection with or arising
out of this Agreement, which the Parties are unable to resolve between
themselves, shall be finally settled by arbitration. The arbitration shall
be
held in Seoul, Korea in accordance with the Commercial Arbitration Rules
of the
Korean Commercial Arbitration Board and under the laws of Korea by one or
more
arbitrator(s) appointed in accordance with the said rules. The arbitration
award
rendered by the arbitrator(s) shall be final and binding upon both Parties.
The
arbitration shall be held in the English language.
|
|
a.
|
Confidentiality
of Agreement. Each Party agrees that it will not disclose
the subject matter or terms of this Agreement or the discussions
between
the Parties without the written consent of the other
Party.
|
|
|
b.
|
Governing
Law. This Agreement, and all transactions contemplated
hereby, shall be governed by, construed and enforced in accordance
with
the laws of Korea without reference to the conflict of laws provisions
therein.
|
|
|
c.
|
Successors
and Assigns. The Receiving Party shall have no right to
assign its right under this Agreement, whether expressly or by
operation
of law, without the written consent of the Disclosing
Party.
|
|
|
d.
|
Entire
Agreement. This instrument contains the entire agreement and
understanding between the Parties with respect to the subject matter
and
transactions hereof and there are no agreements or representations
which
are not set forth herein. All prior negotiations, agreements, and
understandings are superseded
hereby.
|
|
|
e.
|
Modification
and Amendments. No modification, amendment, addition to, or
termination of this Agreement shall be valid or enforceable unless
in
writing and signed by all of the
Parties.
|
|
|
f.
|
Severability. If
any term, provision, clause, article, condition or other portion
of this
Agreement is determined to be invalid, void or unenforceable by
a court of
competent jurisdiction, the same will be deemed amended or deleted
to the
extent necessary to make it enforceable and it will not affect
any other
term, provision, clause, article, condition or other portion hereof,
and
the remainder of this Agreement will remain in full force and
effect.
|
|
|
g.
|
Waiver. None
of the provisions, conditions, or rights under this Agreement shall
be
deemed to be waived by any act or acquiescence on the part of any
Party or
their respective agents. The waiver of any provision, condition,
or right
under this Agreement shall not constitute a waiver of any other
provision,
condition, or right. The failure of any Party to enforce any provision,
condition, or right under this Agreement shall not be deemed a
waiver of
that provision, condition, or
right.
|
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate originals by their duly authorized representatives.
COMPANY
(상대회사공식명칭)
SAMSUNG ELECTRONICS CO., LTD.
By
:________________________ By
:___________________________
Name
:______________________ Name
:________________________
Title
:_______________________ Title
:_________________________
Date
:
______________________ Date
: _________________________
Confidential
Treatment Request -- Redacted Copy
EXHIBIT
E
Form
of Subcontractor Agreement
Samsung
to provide their standard form subcontractor agreement and agree the same
with
PureDepth in due course
Confidential
Treatment Request -- Redacted Copy
EXHIBIT
F
Relationship
Executives
Samsung
Relationship Executive:
Name:
Title:
Address:
Email:
Phone:
Fax:
Cell:
PureDepth
Relationship Executive:
Name:
Title:
Address:
Email:
Phone:
Fax:
Cell:
Confidential
Treatment Request -- Redacted Copy
EXHIBIT
G
Branding
Plan
[****].
Confidential
Treatment Request -- Redacted Copy
EXHIBIT
H
Production
Plan
[****]
The
above
plan may be amended by mutual agreement between the parties.
Confidential
Treatment Request -- Redacted Copy
EXHIBIT
I
Content
Development Plan
[****]
Confidential
Treatment Request -- Redacted Copy
EXHIBIT
J
Public/Investor
Relations Plan
[****]
Confidential
Treatment Request -- Redacted
Copy
EXHIBIT
K
Device
Labeling Plan
MINIMUM
DEVICE LABELING REQUIREMENTS
Patent
Marking Requirements
Purpose
The
purpose of patent marking is to provide constructive notice to the world
of the
patent, and is an important issue in many patent infringement suits. Where
an
article is not appropriately marked, defendants may be able to avoid paying
damages.
Marking
Requirements
As
a
minimum the article should be marked with the relevant patent numbers or
pending
patent application numbers.
For
Example: US Xxx. 1234567; US Xxx. Appn. 10/123456 Pending.
[****]
Trade
Xxxx Marking Requirements
Purpose
Marking
a
trademark serves a number of purposes including providing notice of the owners
claim to the xxxx and directing a consumer to a notice that identifies the
trademark owner. This can be helpful in building the public’s
association of the xxxx with the owner.
Marking
Requirements
There
are
two types of trademarks registered and unregistered.
Unregistered
trademarks can be indicated by the use of the trademark symbol (™).
Registered
marks should be indicated by the registered symbol (®).
[****]
It
is
preferable that the marking be on the article itself and in any associated
literature.
Confidential
Treatment Request -- Redacted
Copy
Device
Appendix No. 1
This
Device Appendix is a supplement to the
License Agreement (the “Agreement”)
between PureDepth, Inc., a Delaware corporation, with a principal place of
business at 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxx, XX 00000 (“PureDepth”)
and Samsung Electronics Co., Ltd., represented by Samsung Digital Media
Business, a corporation organized under the laws of Korea with its principal
place of business located at 416 Maetan 3-dong, Youngtong-gu, Suwon-si,
Gyeonggi-do (“Samsung”). This Device Appendix
sets out the different, additional and particular terms and conditions
applicable solely to the licensing of the Device described in this Device
Appendix and upon signature by the authorized representatives of both parties
will be incorporated by reference into the Agreement and governed
thereby. Such different, additional and particular terms and
conditions apply only to this Device Appendix and in no way alter the terms
and conditions applicable to other Device Appendices incorporated into the
Agreement. All terms used in this Device Appendix will retain
the same meanings as defined in the Agreement and such definitions are
incorporated herein by reference. This Device Appendix is
effective on the date last executed below.
|
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3.
|
Field
of Use Exclusions: [****].
|
|
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4.
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Territory: Worldwide
excluding Japan.
|
[****]
|
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5.2
|
Milestones:
[****]
The Milestones may be
amended/varied by mutual agreement between the
parties.
|
[****]
PureDepth
will provide reasonable
assistance [****]
as set out against each Milestone
detailed in the table
following. [****]
Confidential
Treatment Request -- Redacted Copy
|
|
7.
|
Minimum
Requirements and Sign Off:
|
The
parties further acknowledge and agree that, while each of the [****] Further,
both parties agree to meet regularly in person, with PureDepth traveling
to
Samsung accordingly, to sign off each Milestone (by minute or otherwise)
as duly
complete or satisfactorily met.
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8.3
|
Such
Royalties shall be payable according to Section 8 of this
Agreement.
|
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9.1
|
Samples
and Device Purchase: Samsung will deliver [****]
to PureDepth as set out in Section 7 (“Administrative Procedures”) of the
Agreement and otherwise sell additional Devices to PureDepth at
[****]. Procurement
for other purposes will be agreed between the parties at the relevant
time.
|
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9.2
|
Procurement. If
at any time during the term of this Agreement, [****].
|
This
Device Appendix No.1 will expire on the expiration of [****].
IN
WITNESS WHEREOF, the parties have caused this Device Appendix to be signed
by their duly authorized representatives.
|
“PUREDEPTH”
|
“SAMSUNG”
|
|
PUREDEPTH,
INC.
|
Samsung
Electronics Co., Ltd., represented by Samsung
Digital
Media Business
____________________________________
|
| | |
|
By:__________________________________
|
By: _________________________________
|
| | |
|
Print
Name:____________________________
|
Print
Name: ___________________________
|
| | |
|
Title:_________________________________
|
Title: ________________________________
|
Confidential
Treatment Request -- Redacted
Copy
Device
Appendix No. 2
This
Device Appendix is a supplement to the
License Agreement (the “Agreement”)
between PureDepth, Inc., a Delaware corporation, with a principal place of
business at 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxx, XX 00000 (“PureDepth”)
and Samsung Electronics Co., Ltd., represented by Samsung Digital Media
Business, a corporation organized under the laws of Korea with its principal
place of business located at 416 Maetan 3-dong, Youngtong-gu, Suwon-si,
Gyeonggi-do (“Samsung”). This Device Appendix
sets out the different, additional and particular terms and conditions
applicable solely to the licensing of the Device described in this Device
Appendix and upon signature by the authorized representatives of both parties
will be incorporated by reference into the Agreement and governed
thereby. Such different, additional and particular terms and
conditions apply only to this Device Appendix and in no way alter the terms
and conditions applicable to other Device Appendices incorporated into the
Agreement. All terms used in this Device Appendix will retain
the same meanings as defined in the Agreement and such definitions are
incorporated herein by reference. This Device Appendix is
effective on the date last executed below.
|
|
3.
|
Field
of Use Exclusions: [****].
|
|
|
4.
|
Territory: Worldwide
excluding Japan.
|
[****]
|
|
5.2
|
Milestones:[****][****]
|
PureDepth
will provide reasonable assistance [****] as set out against
each Milestone detailed in the table following.
[****]
Confidential
Treatment Request -- Redacted Copy
|
|
7.
|
Minimum
Requirements and Sign Off:
|
The
parties further acknowledge and agree that, while each of the
[****]. Further, both parties agree to meet
regularly in person, with PureDepth traveling to Samsung accordingly, to
sign
off each Milestone (by minute or otherwise) as duly complete or satisfactorily
met.
|
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8.3
|
Such
Royalties shall be payable according to Section 8 of this
Agreement.
|
|
|
9.1
|
Samples
and Device Purchase: Samsung will deliver
[****] to PureDepth as set out in Section 7
(“Administrative Procedures”) of the Agreement and otherwise sell
additional Devices to PureDepth at
[****]. Procurement for other purposes will be
agreed between the parties at the relevant
time.
|
|
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9.2
|
Procurement. If
at any time during the term of this Agreement,
[****].
|
This
Device Appendix No.2 will expire on the expiration of six (6) calendar months
from [****].
IN
WITNESS WHEREOF, the parties have caused this Device Appendix to be signed
by their duly authorized representatives.
|
“PUREDEPTH”
|
“SAMSUNG”
|
|
PUREDEPTH,
INC.
|
Samsung
Electronics Co., Ltd., represented by
Samsung
Digital Media Business
____________________________________
|
| | |
|
By: ______________________________
|
By: _______________________________
|
| | |
|
Print
Name:________________________
|
Print
Name:__________________________
|
| | |
|
Title: _____________________________
|
Title: ______________________________
|
