Product and Market Development Agreement
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This
Agreement (“Agreement”) is
entered into and made effective as of December 4, 2008 (the “Effective Date”) by
and between LG Innotek Co., Ltd., a Korean corporation with offices at 00,
Xxxxxxx-xxxx, Xxxxxxxxxxxx-xx, Xxxxx, Xxxxx (“LGIT”) and
ParkerVision, Inc., a Florida corporation with offices at 0000 Xxxxxxxxxx Xxx,
Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 (“ParkerVision”).
Recitals
WHEREAS,
ParkerVision has developed and patented technology that is designed to address
certain limitations in applying traditional approaches to RF transmission,
reception, and power amplification, and
WHEREAS,
LGIT desires to develop in conjunction with ParkerVision, and ParkerVision
desires to develop in conjunction with LGIT, ParkerVision RF Components (as
defined below) to meet the market requirements for handset and data card
products, and
WHEREAS,
LGIT also desires to have ParkerVision supply, and ParkerVision desires to
supply, ParkerVision RF Components that LGIT will design into LGIT RF Products
(as defined below) for application into handset and data card products,
and
WHEREAS,
the parties desire to market and promote LGIT RF Products to the mobile
communications community, including mobile handset and data card OEMs, and
chipset suppliers internationally.
NOW,
THEREFORE, in consideration of the foregoing premises and of the performance of
the mutual covenants herein, the parties agree as follows:
1. DEFINITIONS
1.1 “Confidential
Information” has the meaning set forth in Section 10.1.
1.2 “Development Tools”
means the ParkerVision development tools described in the Statement of
Work.
1.3 “Improvements” means
any improvement, including without limitation variations, optimizations,
enhancements, modifications, or derivatives obtained, developed, created,
synthesized, designed, derived or resulting from, based upon or otherwise
generated (whether directly or indirectly, or in whole or in part).
1.4 “Intellectual Property
Rights” means patents, certificates of invention, utility models, design
rights and similar invention rights, copyrights, trade secret rights, mask work
rights, and any other intangible property or proprietary rights (other than
trademarks, trade names, service marks and trade dress rights) recognized
anywhere in the world under any state or national statute or treaty or common
law right, including without limitation all applications and registrations with
respect to any of the foregoing.
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1.5 “ParkerVision RF
Components” means integrated circuits based on the Specifications in an
SOW.
1.6 “ParkerVision
Software” means any software or firmware provided by ParkerVision to
LGIT, including software included within any Development Tools that may be
provided under this Agreement, or any software or firmware loaded onto
ParkerVision RF Components.
1.7 “LGIT RF Products”
means RF products to be manufactured and sold by LGIT that incorporate the
ParkerVision RF Components.
1.8 “Specifications” means
the specifications for the ParkerVision RF Components, such specifications to be
jointly developed by the parties pursuant to an SOW, executed by both parties,
and attached as an Exhibit to an SOW.
1.9 “SOW” means a
Statement of Work for development of a ParkerVision RF Component containing the
Specifications, tasks, deliverables, target delivery dates and
payments. The SOW under this Agreement is set forth in Exhibit A attached
hereto and may be modified by mutual written agreement.
2. PARKERVISION
RESPONSIBILITIES
2.1 Development
Plan. Subject to the terms and conditions set forth in the
SOW, ParkerVision shall use commercially reasonable efforts to develop the
ParkerVision RF Components to meet the Specifications in accordance with the
schedule set forth in the SOW. ParkerVision shall, monthly or if
requested by LGIT from time to time during the term of this Agreement, submit to
LGIT a written progress report (“Progress Report”)
documenting the work ParkerVision has completed during the period between each
Progress Report. The Progress Report shall be in sufficient detail to
clearly indicate the progress made toward achieving the objectives and
milestones set forth herein and specified by LGIT, and achieving compliance with
the Specifications and any other requirements of the SOW for the work to be
performed by ParkerVision hereunder.
2.2 License
Grant. ParkerVision hereby grants LGIT, for the term of this
Agreement, a nonexclusive, royalty-free, and nontransferable license, under
ParkerVision’s Intellectual Property Rights, to use and reproduce any
ParkerVision Software and use any other items provided by ParkerVision hereunder
as may be reasonably necessary solely for the purposes of fulfilling LGIT’s
specific development tasks under the SOW and to incorporate the ParkerVision RF
Components into LGIT RF Products.
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2.3 No Reverse
Engineering. LGIT shall not (a) reverse engineer or reconfigure the
ParkerVision RF Components or any of its elements other than as reasonably
required for the development of the LGIT RF Products for the purposes of this
Agreement, (b) modify, translate, reverse engineer, decompile, disassemble or
otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate or
otherwise circumvent any software protection mechanisms in the ParkerVision
Software including without limitation any such mechanism used to restrict or
control the functionality of the ParkerVision Software, or (ii) to derive
the source code or the underlying ideas, algorithms, structure or organization
from the ParkerVision Software or ParkerVision RF Components; (c) alter, adapt,
modify or translate the ParkerVision Software in any way for any purpose,
including without limitation error correction; or (d) distribute, rent, loan,
lease, transfer or grant any rights in the ParkerVision Software or
modifications thereof in any form to any person or entity.
2.4 Development
Tools. Upon request of LGIT, ParkerVision shall provide to
LGIT pursuant to mutually agreeable terms and conditions certain Development
Tools as described in the SOW. LGIT agrees to use items delivered to
it by ParkerVision solely for the purposes consistent with this Agreement,
agrees not to dispose of items delivered to it by ParkerVision hereunder and/or
pursuant to the SOW (by sale, transfer or otherwise) without the prior written
consent of ParkerVision, and agrees not to disclose or use such items in any
manner inconsistent with the limitations imposed upon such use and disclosure by
ParkerVision.
2.5 Engineering
Personnel. As specified in the SOW, ParkerVision shall provide
a suitably qualified and reasonably staffed engineering support team with
clearly defined contact points and escalation processes. Each party shall
appoint one (1) project manager who will act as a general liaison with the other
party for the term of this Agreement.
2.6 Support
Services. After completion of each party’s tasks specified in
the SOW and acceptance by LGIT of ParkerVision’s Final Deliverable (as defined
below) under the SOW, ParkerVision shall provide to LGIT reasonable technical
support as LGIT may request from time to time.
3. DELIVERY
AND ACCEPTANCE
3.1 Deliverables. ParkerVision
shall develop and deliver to LGIT the deliverables specified in the SOW in
accordance with the terms and conditions of this Agreement. Subject to the terms
and conditions set forth in the SOW, deliverables to be provided by ParkerVision
are set forth in the SOW and may include a description of the technical approach
selected for implementing the ParkerVision RF Components, a development program
plan identifying program tasks, responsibilities, and schedules, the completion
of development tasks, suggested development schedules with key milestones and
design reviews, and the delivery of the Development
Tools. ParkerVision may also provide specifications and best-practice
guidelines for system level design, pursuant to the SOW.
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3.2 Acceptance.
ParkerVision shall, [*], deliver to LGIT the deliverables specified in the SOW
at the place designated by LGIT, and shall use commercially reasonable efforts
to complete the delivery by the agreed delivery schedule (“Delivery
Date”). LGIT shall conduct acceptance testing of the
deliverables (“Acceptance Test”) and
notify ParkerVision of the results of the Acceptance Test in writing within [*]
days after the delivery of the deliverables. Upon successful completion of, and
closure of action items from the review and Acceptance Test of, the final
deliverable in the SOW (the “Final Deliverable”),
LGIT shall accept such Final Deliverable. If within [*] days of such
review and Acceptance Test, LGIT fails to provide ParkerVision with either
written notice of acceptance or written notice of rejection of the Final
Deliverable, LGIT will be deemed to have accepted such Final
Deliverable.
3.3 Rejection. LGIT
may, in good faith and after determining that the Final Deliverable does not
comply in all material respects with the Final Deliverable requirements set
forth in the SOW, reject such Final Deliverable; provided that LGIT provides
written documentation to ParkerVision noting the areas in which the Final
Deliverable fails to comply with the requirements set forth in the
SOW. If LGIT rejects, in good faith, the Final Deliverable specified
in the SOW after attempts to correct by ParkerVision made within [*] months from
the Effective Date, then LGIT may, at its sole option, pursue any of the
following options upon provision of written notice to ParkerVision:
3.3.1 terminate
this Agreement immediately;
3.3.2 continue
to allow ParkerVision to correct the Final Deliverable based on the existing
Specifications or based on mutually agreed revised Specifications;
or
3.3.3 choose to
accept the non-compliant Final Deliverable based on the existing Specifications
or based on mutually agreed revised Specifications.
The
parties acknowledge and agree that the above options in 3.3.1,
3.3.2 and
3.3.3 of
this Section 3.3 (Rejection) are not mutually exclusive.
4. LGIT
RESPONSIBILITIES
4.1 Development of LGIT RF
Product. LGIT shall use commercially reasonable efforts to
fulfill its obligations under the SOW and to incorporate the ParkerVision RF
Components into the LGIT RF Products for production release.
4.2 LGIT Testing
Equipment. LGIT shall provide pursuant to mutually
agreeable terms and conditions certain testing equipment to ParkerVision (“LGIT Testing
Equipment”) as specified in the SOW. ParkerVision agrees to
use LGIT Testing Equipment delivered to it by LGIT solely for the purposes
consistent with this Agreement, agrees not to dispose of items delivered to it
by LGIT hereunder and/or pursuant to the SOW (by sale, transfer or otherwise)
without the prior written consent of LGIT, and agrees not to disclose or use
such items in any manner inconsistent with the limitations imposed upon such use
and disclosure by LGIT.
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4.3 Support. LGIT
shall be responsible for providing any technical support to its end-user
customers as necessary for using the LGIT RF Products.
5. JOINT
RESPONSIBILITIES
5.1 Specifications. The
parties agree to work together to define Specifications that will address the
market requirements for incorporating ParkerVision RF Components into LGIT RF
Products for application into handset and data card products.
5.2 Marketing and
Promotion. The parties also agree to use commercially
reasonable efforts to market and promote such LGIT RF Products to the mobile
terminal industry, to identify target customers to market and promote the LGIT
RF Products, and cooperate in promoting the LGIT RF Products to such potential
customers as chipset vendors, mobile terminal OEMs and service providers
internationally.
6. PURCHASING
TERMS
6.1 Known Good
Die. ParkerVision shall sell to LGIT Known Good Die (KGD)
ParkerVision RF Components in the form of unpackaged integrated
circuits. ParkerVision shall provide reasonable purchasing terms,
once the development work under this Agreement and the SOW is successfully
completed, outlining pricing and delivery information relating to the sale of
ParkerVision RF Components to LGIT.
6.2 Field of
Use. LGIT shall only sell ParkerVision RF Components
incorporated into LGIT RF Products for use in commercial mobile handset or
datacard applications employing waveform standards GSM, EDGE, WCDMA, HSPA in any
combination or subset therein as defined by the 3GPP standards
body.
6.3 Additional
Consideration.
6.3.1 Intent. ParkerVision
intends to work with LGIT to aid it in its efforts to develop and commercialize
the LGIT RF Products during the term of the Agreement as set forth in this
Agreement. ParkerVision intends to work with LGIT to provide it with
the unique solutions defined within the SOW and the high quality technical and
business support that is reasonably needed to meet both parties’ commercial
objectives related to the ParkerVision RF Components developed under the terms
of this Agreement. Both parties believe that the successful commercialization of
the LGIT RF Product can result in LGIT becoming a leading global supplier in the
market for HEDGE RF modules for mobile handset and datacard
applications.
[*]
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7. FEES
AND PAYMENT
7.1 Expenses. Each
party agrees to furnish, [*], all tools and materials necessary to perform its
obligations under this Agreement and shall bear all expenses associated with
such performance unless specified
otherwise in the SOW or otherwise agreed by the parties.
[*]
8. OWNERSHIP
8.1 ParkerVision.
8.1.1 ParkerVision RF Components
and Development Tools. ParkerVision hereby retains all right,
title and interest in and to the Intellectual Property Rights relating to the
ParkerVision RF Components and any Development Tools provided under this
Agreement regardless of whether developed prior to or pursuant to this
Agreement. ParkerVision shall have the exclusive right to apply for
or register patents, copyrights, and such other proprietary protections as it
wishes with respect to the ParkerVision RF Components and any Development Tools
provided under this Agreement.
8.1.2 Improvements. ParkerVision
shall be the sole and exclusive owner of any and all right, title and interest
in and to any Improvements to ParkerVision RF Components that may be jointly
developed (i.e., jointly authored, as defined under United States Copyright Act
(Title 17 of the United States Code), or jointly invented, as defined under the
United States Patent Act (Title 35 of the United States Code), regardless of
whether such Improvements to ParkerVision RF Components are patented or
patentable) by one (1) or more employees of ParkerVision and one (1) or more
employees of LGIT hereunder, and all Intellectual Property Rights
therein. LGIT hereby irrevocably transfers, conveys and assigns, and
agrees to irrevocably transfer, convey and assign, to ParkerVision, without
reservation and in perpetuity, all right, title, and interest that LGIT may have
in and to any such jointly developed Improvements to ParkerVision RF Components,
including without limitation all Intellectual Property Rights with respect
thereto in any and all countries. ParkerVision shall have the
exclusive right to apply for or register patents, copyrights, and such other
proprietary protections as it wishes. LGIT agrees to execute such
documents, render such assistance, and take such other action as ParkerVision
may reasonably request, at ParkerVision’s expense, to apply for, register,
perfect, confirm, and protect ParkerVision’s rights in any Improvements to
ParkerVision RF Components.
8.2 LGIT.
8.2.1 LGIT RF
Products. LGIT hereby retains all right, title and interest in
and to the Intellectual Property Rights relating to the LGIT RF Products except
for ParkerVision RF Components incorporated therein. LGIT shall have
the exclusive right to apply for or register patents, copyrights, and such other
proprietary protections as it wishes with respect to the LGIT RF Products except
for ParkerVision RF Components incorporated therein.
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8.2.2 Improvements. LGIT
shall be the sole and exclusive owner of any and all right, title and interest
in and to any Improvements to LGIT RF Products that may be jointly developed
(i.e., jointly authored, as defined under United States Copyright Act (Title 17
of the United States Code), or jointly invented, as defined under the United
States Patent Act (Title 35 of the United States Code), regardless of whether
such Improvements to LGIT RF Products are patented or patentable) by one (1) or
more employees of ParkerVision and one (1) or more employees of LGIT hereunder,
and all Intellectual Property Rights therein. ParkerVision hereby
irrevocably transfers, conveys and assigns, and agrees to irrevocably transfer,
convey and assign, to LGIT, without reservation and in perpetuity, all right,
title, and interest that ParkerVision may have in and to any such jointly
developed Improvements to LGIT RF Products, including without limitation all
Intellectual Property Rights with respect thereto in any and all
countries. LGIT shall have the exclusive right to apply for or
register patents, copyrights, and such other proprietary protections as it
wishes. ParkerVision agrees to execute such documents, render such
assistance, and take such other action as LGIT may reasonably request, at LGIT’s
expense, to apply for, register, perfect, confirm, and protect LGIT’s rights in
any Improvements to LGIT RF Products. For purposes of this Section
8.2.2 (Improvements), the way in which ParkerVision RF Components are integrated
into the LGIT RF Products is not considered an Improvement to the LGIT RF
Product.
9. PUBLIC
ANNOUNCEMENT
The
parties agree that neither party shall make any other announcement concerning
the execution or content of this Agreement without the other party’s express
written consent. However, either of the parties may at any time make
announcements that are required by applicable law, regulatory bodies, or stock
exchange or stock association rules, so long as the party so required to make
the announcement, promptly upon learning of such requirement, notifies the other
party of such requirement and discusses with the other party in good faith the
exact wording of such announcement.
10. CONFIDENTIAL
INFORMATION
10.1 “Confidential
Information” means, with respect to either party, any confidential
business or technical information, including know-how, whether or not patentable
or copyrightable, that the disclosing party identifies as confidential or
proprietary at the time it is disclosed or delivered to the receiving
party. Any information disclosed or provided under an SOW is
Confidential Information whether or not such information is marked or identified
as confidential or proprietary.
10.2 Exceptions. Confidential
Information does not include any information that the receiving party can
demonstrate by written records: (a) was known to the receiving party prior
to its disclosure hereunder by the disclosing party; (b) is independently
developed by the receiving party; (c) is or becomes publicly known through
no wrongful act of the receiving party; (d) has been rightfully received
from a third party whom the receiving party has reasonable grounds to believe is
authorized to make such disclosure without restriction; or (e) has been
approved for public release by the disclosing party’s prior written
authorization. Each party may disclose any Confidential Information
as required to be produced or disclosed pursuant to applicable law, regulation
or court order, provided that the receiving party provides prompt advance notice
thereof to enable the disclosing party to seek a protective order or otherwise
prevent such disclosure. In addition, each party may disclose the
existence and terms of this Agreement in confidence in connection with a
potential acquisition of substantially the entire business of such party or a
private offering of such party’s securities, or to the extent required by law in
connection with a public offering of such party’s securities.
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10.3 Non-Disclosure and
Non-Use. Each party will: (i) not use any Confidential
Information of the other party except as permitted by this Agreement; (ii) not
disclose any such Confidential Information to any person or entity other than
its own employees, consultants and subcontractors who have a need to know and
who have executed in advance of receiving such Confidential Information a
suitable nondisclosure and restricted use agreement that comports with the
applicable provisions of this Agreement; and (iii) use all reasonable efforts to
keep such Confidential Information strictly confidential. Each party
will use reasonable efforts to enforce such nondisclosure and restricted use
agreements.
11. TERM
This
Agreement shall commence on the Effective Date and continue for [*] unless
terminated pursuant to Section 12 (Termination).
12. TERMINATION
12.1 Termination for
Breach. In the event of a material breach of this Agreement,
the nonbreaching party shall be entitled to terminate this Agreement by written
notice to the breaching party, if such breach is not cured within [*] days after
written notice is given by the nonbreaching party to the breaching party
specifying the breach.
12.2 Termination for
Insolvency. Either party may terminate this Agreement
immediately if the other party is adjudicated bankrupt, becomes insolvent, makes
a general assignment for the benefit of creditors, or enters dissolution or
liquidation proceedings.
12.3 Termination if Final
Acceptance Not Achieved. LGIT may terminate this Agreement
with [*] days written notice if Final Acceptance does not occur within [*]
months from the Effective Date.
12.4 Effect of Termination or
Expiration.
12.4.1 Return of
Materials. In the event this Agreement expires or is
terminated by either party, then each party shall return to the other party or
destroy all documents, materials and other tangible objects containing or
representing Confidential Information and all copies thereof and any documents,
materials and other tangible objects belonging to the other party, provided to
it by the other party hereunder, or any portion thereof, in its possession or
control.
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12.4.2 Payment of
Fees. Upon any expiration or termination becoming effective,
either party will, within sixty (60) days thereafter, or otherwise as they
become due, pay all fees hereunder and interest owed the other party as of the
date of such termination or expiration.
12.5 Survival of Certain
Provisions. The provisions of Sections 1 (Definitions), 2.3
(No Reverse Engineering), 8 (Ownership), 10 (Confidential Information), 13
(Warranties), 14 (Indemnification), 15 (Limitation of Liability) and 16 (General
Provisions) of this Agreement will survive any expiration or termination of this
Agreement.
13. WARRANTIES
13.1 Warranties.
13.1.1 Warranties by
ParkerVision. ParkerVision hereby represents and warrants to
LGIT that: (a) it has the full right, power and authority to enter into this
Agreement and grant the rights granted hereunder; (b) this Agreement is a valid
and binding obligation of such party; (c) it has obtained and shall maintain
throughout the term of this Agreement all necessary licenses, authorizations,
approvals and consents to enter into and perform its obligations hereunder in
compliance with all applicable laws, rules and regulations; (d) the Final
Deliverable (and any part thereof) shall not violate or infringe any
Intellectual Property Rights of a third party; (e) ParkerVision has all rights
with respect to any software tools which are necessary for ParkerVision to
perform its obligations and deliver the specified deliverables to LGIT, under
this Agreement; (f) ParkerVision has not sold, assigned, leased or disposed of,
encumbered any rights granted to LGIT under this Agreement, or entered into any
other agreements that would conflict with its obligations under this Agreement;
and (g) the Final Deliverable shall, as from the Acceptance Date and for a
period of one (1) year thereafter, be free from all errors, defects in design,
materials and workmanship and shall comply with all the applicable
Specifications thereof, and upon the request of LGIT, ParkerVision shall,
without prejudice to any other remedy which LGIT may have, at LGIT’s option,
immediately repair or replace, at LGIT’s option, any such errors or defects, and
deliver the repaired or replaced items to LGIT within [*] days of such request
at the costs and expenses of ParkerVision.
13.1.2 Warranties by
LGIT. LGIT hereby represents and warrants to ParkerVision
that: (a) it has the full right, power and authority to enter into this
Agreement and grant the rights granted hereunder; (b) this Agreement is a valid
and binding obligation of such party; and (c) it has obtained and shall maintain
throughout the term of this Agreement all necessary licenses, authorizations,
approvals and consents to enter into and perform its obligations hereunder in
compliance with all applicable laws, rules and regulations.
13.2 Disclaimer of Other
Warranties. EXCEPT AS SET FORTH IN SECTION 13.1 (WARRANTIES),
NEITHER PARTY MAKES ANY WARRANTIES TO THE OTHER, EITHER EXPRESS, IMPLIED OR
STATUTORY, AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES,
INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
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14. INDEMNIFICATION
14.1 ParkerVision
Obligations.
14.1.1 Intellectual Property
Indemnity. Subject to prompt, written notification by LGIT,
cooperation by LGIT and control of all litigation and/or settlement by
ParkerVision, ParkerVision shall defend LGIT from and against any third party
claims brought against LGIT alleging that any ParkerVision RF Components
delivered to LGIT under this Agreement or otherwise used by LGIT in accordance
with the terms hereof infringes or misappropriates any Intellectual Property
Rights of any third party. LGIT agrees to notify ParkerVision
promptly of any matters in respect to which the foregoing indemnity in this
Section 14.1 may apply. If notified in writing of any action or claim
for which ParkerVision is to provide the foregoing indemnity, ParkerVision shall
defend or settle those actions or claims [*] ParkerVision shall keep
LGIT reasonably informed of the status of any claim which ParkerVision is
defending and shall consult reasonably with LGIT with respect
thereto. Notwithstanding the foregoing, ParkerVision shall obtain
LGIT’s advance written consent if LGIT is required to incur or admit liability
as a result of such settlement by ParkerVision.
[*] Remedy in the Event of
Prohibition of Use. If a preliminary or final judgment is, or
is reasonably likely to be, entered against LGIT’s use, sale, lease or
distribution of any LGIT RF Product that incorporates ParkerVision RF
Components, due to infringement of any third party Intellectual Property Rights
by the ParkerVision RF Components, or if ParkerVision reasonably believes that
the ParkerVision RF Components may be found to infringe any Intellectual
Property Rights, then ParkerVision shall, [*], either (a) modify the
ParkerVision RF Components so that they become noninfringing, (b) substitute the
ParkerVision RF Components with other non-infringing products with materially
the same functionality (or better) as the infringing ParkerVision RF Components
or parts or (c) obtain a license to permit LGIT to exercise the rights granted
hereunder; provided, however, that in the event that ParkerVision is unable
after using commercially reasonable efforts to accomplish either (a), (b) or
(c), then LGIT agrees to cease any and all use, sale, lease and distribution of
any LGIT RF Product that incorporates such ParkerVision RF Components within
thirty (30) days of receipt of notice from ParkerVision or such earlier time as
may be required to comply with a court order [*]
14.2 Limitation of
Indemnification Liability. In no event shall ParkerVision be
liable under Section 14 (ParkerVision Obligations) for any infringement or
misappropriation: (i) by any product not provided by
ParkerVision hereunder; or (ii) arising from a combination with, addition
to, or modification of the ParkerVision RF Components by anyone other than
ParkerVision.
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14.3 Sole
Remedy. THIS SECTION 14 (INDEMNIFICATION) STATES THE SOLE AND
EXCLUSIVE LIABILITY OF THE PARTIES FOR INFRINGEMENT OR ALLEGATIONS OF
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES FOR ANY PRODUCT
PROVIDED HEREUNDER, AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY IN REGARD THERETO, INCLUDING BUT NOT LIMITED TO THE WARRANTY AGAINST
INFRINGEMENT SPECIFIED IN THE UNIFORM COMMERCIAL CODE.
15. LIMITATION
OF LIABILITY
15.1 Consequential
Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER
FOR LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES (EXCEPT TO THE EXTENT THAT SUCH LOST PROFITS OR SUCH DAMAGES CONSTITUTE
THE MEASURE OF DIRECT DAMAGES UNDER THE RELEVANT INTELLECTUAL PROPERTY LAWS,
EXCEPT FOR A BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION
10 (CONFIDENTIAL INFORMATION) OF THIS AGREEMENT, AND EXCEPT FOR AMOUNTS PAYABLE
TO THIRD PARTIES UNDER SECTION 14 (INDEMNIFICATION)), HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY, ARISING IN ANY WAY IN CONNECTION WITH THIS
AGREEMENT. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
15.2 Damages
Cap. IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING IN ANY
WAY IN CONNECTION WITH THIS AGREEMENT EXCEED [*]. HOWEVER, THE
FOREGOING LIMITATION OF LIABILITY IN THIS SECTION 15.2 SHALL NOT APPLY WITH
RESPECT TO EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER
SECTION 10 (CONFIDENTIAL INFORMATION) OF THIS AGREEMENT [*]
16. GENERAL
PROVISIONS
16.1 Assignment. This
Agreement may not be assigned in whole or in part by either party without the
written consent of the other, which consent will not be unreasonably withheld,
except that LGIT or ParkerVision may assign this Agreement in connection with a
merger, reorganization, change of control or sale of all or substantially all of
its assets or business to which this Agreement relates.
16.2 Notice.
16.2.1 Unless
otherwise changed by notice in writing from LGIT to ParkerVision, ParkerVision
shall serve notice upon LGIT as follows:
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*
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED
PORTIONS.
|
[*]
LG
Innotek Co., Ltd.
00
Xxxxxxx-xxxx
Xxxxxxxxxxxx-xx,
Xxxxx, Xxxxx
Unless
otherwise changed by notice in writing from ParkerVision to LGIT, LGIT shall
serve notice upon ParkerVision as follows:
Chief
Executive Officer
ParkerVision,
Inc.
0000
Xxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
With copy
to:
Chief
Financial Officer
ParkerVision,
Inc.
0000
Xxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
16.2.2 Notice
shall be made by regular or priority mail, recognized commercial overnight
courier, hand delivery, facsimile transmission or electronic mail with proof of
receipt, and shall be effective as of the date received.
16.3 Severability. If
any paragraph or provision of this Agreement shall be deemed void or invalid as
a matter of law, the remaining paragraphs or provisions of this Agreement shall
nevertheless remain in full force and effect.
16.4 No Joint Venture,
etc. Nothing herein shall be deemed to constitute ParkerVision
and LGIT as partners, joint venturers or otherwise associated in or with the
business of the other. Neither party shall be liable for any debts,
accounts, obligations or other liabilities of the other
party. Neither party is authorized to incur any debts or other
obligations of any kind on the part of or as agent for the other except as may
be specifically authorized in writing.
16.5 No Implied
Obligations. Nothing in this Agreement shall be deemed to
prevent either party from developing (independently or jointly with third
parties) or commercializing products similar to, complimentary or competitive
with the products that are subject to this Agreement; except that neither party
shall violate its obligations of confidentiality under Section 10 (Confidential
Information) or knowingly infringe the Intellectual Property Rights of the other
party.
16.6 Waiver. No
relaxation, forbearance, delay or negligence by any party hereto in enforcing
any of the terms and conditions of this Agreement, or the granting of time by
any party to another, shall operate as a waiver or prejudice, affect or restrict
the rights, powers or remedies of any party hereto.
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*
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED
PORTIONS.
|
16.7 Complete
Agreement. This Agreement and the Exhibits attached hereto
represent the full and complete agreement and understanding of the parties
hereto with respect to the subject matter hereof. Any amendment
thereof must be in writing and executed by the parties hereto.
16.8 Governing
Law. All questions of law, rights, and remedies regarding any
act, event or occurrence undertaken prior to or pursuant to this Agreement shall
be governed by and construed in accordance with the laws of the State of New
York, without regard to or application of choice of law rules or principles, and
the United States. The parties agree that all proceedings, disputes and claims
concerning the interpretation or the performance of this Agreement, including
questions involving its existence, validity and duration shall be subject to the
exclusive jurisdiction of federal courts in the State of New York, and the
parties voluntarily subject themselves to the jurisdiction of such
courts.
16.9 Compliance with Export
Control Laws. Each party agrees to comply with all applicable
export and reexport control laws and regulations, including the Export
Administration Regulations (“EAR”) maintained by the United States Department of
Commerce. Specifically, each party covenants that it shall not
– directly or indirectly – sell, export, reexport, transfer, divert,
or otherwise dispose of any software, source code, or technology (including
products derived from or based on such technology) received from the other party
under this Agreement to any country (or any individual national thereof) subject
to antiterrorism controls or U.S. embargo, or to any other person, entity, or
destination prohibited by the laws or regulations of the United States, without
obtaining prior authorization from the competent government authorities as
required by those laws and regulations.
16.10 Government
Approvals. LGIT hereby represents and warrants that no
consent, approval or authorization of or designation, declaration or filing with
any governmental authority in Korea is required in connection with the valid
execution, delivery and performance of this Agreement. LGIT
represents and warrants that the provisions of this Agreement, and the rights
and obligations of the parties hereunder, are enforceable under the laws of
Korea.
16.11 Language. This
Agreement is in the English language only, which language shall be controlling
in all respects, and all versions hereof in any other language shall not be
binding on the parties hereto. All communications and notices to be
made or given pursuant to this Agreement shall be in the English
language.
16.12 Multiple
Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be considered an original and all of which
together will constitute one agreement. This Agreement may be
executed by the attachment of signature pages which have been previously
executed.
16.13 Remedies
Cumulative. Except as expressly provided herein, all rights
and remedies enumerated in this Agreement will be cumulative and none will
exclude any other right or remedy permitted herein or by law or in
equity.
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CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED
PORTIONS.
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16.14 Headings. The
headings contained in this Agreement are inserted for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
16.15 Force
Majeure. No party shall be responsible or liable to another
party for nonperformance or delay in performance of any terms or conditions of
this Agreement due to acts or occurrences beyond the reasonable control of the
nonperforming or delayed party, including but not limited to, acts of God, acts
of government, wars, riots, strikes or other labor disputes, fires and floods,
provided the nonperforming or delayed party provides to the other party written
notice of the existence and the reason for such nonperformance or
delay. Notwithstanding the foregoing, the other party may terminate
this Agreement if such nonperformance or delay extends for a period greater than
ninety (90) days.
IN
WITNESS WHEREOF, the parties have executed this Agreement through their duly
authorized representatives as set forth below:
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LG
Innotek Co., Ltd.
|
ParkerVision,
Inc.
|
|||
|
Signature:
|
[*] | Signature: |
/s/ Xxxxxxx X Xxxxxx
|
|
|
Printed
Name:
|
[*] | Printed Name: |
Xxxxxxx X. Xxxxxx
|
|
|
Title:
|
[*] | Title: |
Chief Executive
Officer
|
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*
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED
PORTIONS.
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[*]
[*]
[*]
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