Exhibit 10.2
TECHNOLOGY LICENSE AGREEMENT*
This Technology License Agreement is entered into as of December 22,
2000 ("Effective Date") between MystiCom Limited ("MystiCom") an Israeli
corporation with a principal place of business at 0 Xx'xxxxx Xxxxxx, Xxxxxxx
00000 Xxxxxx and Virata Ltd. ("Licensee"), an English corporation with a
principal place of business at Xxxxx Xxxxxxxx Xxxxx, 0 Xxxxx Xxxxxxxx,
Xxxxxxxxxx Road, Cambridge CB3 OBL England.
A. MystiCom is developing and has developed certain proprietary
implementations of hardware designs and related technology.
B. Licensee wishes to obtain a license from MystiCom to manufacture
and distribute products that incorporate certain of MystiCom's technology.
In consideration of the mutual promises, covenants and conditions
contained herein the parties agree as follows:
1. DEFINITIONS
When used in this Agreement, the following terms have the following
meanings:
1.1 Affiliate means an entity that directly or indirectly controls,
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is controlled by, or is under common control with Licensee, for as long as such
control exists, provided that each Affiliate exercising rights under this
Agreement agrees in writing to be bound by the terms of this Agreement. For
purposes of this definition, "control" means the ownership of more than fifty
percent of the voting stock of such entity, or if such entity is not a
corporation, the ability to control the day-to-day operations and business of
such entity.
1.2 Confidential Information means any confidential or proprietary
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information, source code, software tools, designs, schematics, plans or any
other information relating to any research project, work in process, future
development, scientific, engineering, manufacturing, marketing or business plan
or financial or personnel matter relating to either party, its present or future
products, sales, suppliers, customers, employees, investors or business,
identified and marked by the disclosing party as Confidential Information,
whether in oral, written, graphic or electronic form. If disclosed orally, to be
accorded status as Confidential Information such information must be identified
as confidential or proprietary at the time of disclosure, reduced to writing
thereafter marked as confidential and delivered to be receiving party within
thirty (30) days following initial disclosure.
1.3 Core means the MystiCom hardware designs identified in Exhibit A,
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including without limitation (a) any part or component thereof and (b) any
improvements, Updates, or other modifications supplied by MystiCom under this
Agreement.
1.4 Deliverables means the items MystiCom will deliver to Licensee,
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as described in Exhibit B.
1.5 Device means a semiconductor device or other product of Licensee
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incorporating one or more Instantiations.
1.6 Documentation means the documentation specified on Exhibit A or
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supplied by MystiCom in conjunction with the Core.
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* Portions of the material in this Exhibit have been redacted pursuant
to a request for confidential treatment, and the redacted material has been
filed separately with the Securities and Exchange Commission (the "Commission").
An asterisk has been placed in the precise places in this Agreement where we
have redacted information, and the asterisk is keyed to a legend which states
that the material has been omitted pursuant to a request for confidential
treatment.
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1.7 Error means a material nonconformity of the Core with the
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Specifications.
1.8 Instantiation means the embodiment or incorporation of the Core
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in one instance in a semiconductor device or other product. If the Core is
embodied or incorporated in a semiconductor device or other product in more than
one instance, each time the Core is embodied or incorporated in such
semiconductor device or other product will be considered a separate
Instantiation.
1.9 Intellectual Property Rights means all current and future trade
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secrets, copyrights, patents and other patent rights, trademark rights, service
xxxx rights, mask work rights and any and all other intellectual property or
proprietary rights now known or hereafter recognized in any jurisdiction in any
and all media.
1.10 Specifications means the specifications for the Core, as more
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fully described in Exhibit A.
1.11 Taxes mean all taxes, levies, imposts, duties or other charges of
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whatsoever nature however imposed by any subdivision or authority of or in that
country in any way connected with this Agreement or any instrument or agreement
required hereunder plus all interest, penalties or similar liabilities with
respect thereto, except such taxes as are imposed on or measured by MystiCom's
net income by a country, or any subdivision or authority of or in that country,
in which MystiCom is doing business for purposes of that country's income tax
laws.
1.12 Updates means Error correction, bug fixes, minor modifications,
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or minor improvements to the Core which are provided to Licensee under this
Agreement.
2. GRANT OF RIGHTS
2.1 License Grant. MystiCom grants to Licensee and its Affiliates a
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worldwide, non-exclusive, non-transferable, perpetual, royalty bearing license,
without right to sublicense, to the Core with full rights to make, have made,
use, reproduce, and prepare derivative works solely for the purpose of
integrating the Core into the Devices. MystiCom further grants Licensee and its
Affiliates a worldwide, non-exclusive, non-transferable license to import,
export, sell, offer to sell, and distribute the Devices to third parties
including end users, OEMs, and through a multi-tiered distribution network.
2.2 License to Documentation. MystiCom grants to Licensee and its
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Affiliates a non-exclusive right to copy, modify, and distribute (within and
outside of Licensee) the Documentation solely for the purpose of supporting
Licensee's customers.
2.3. License Restrictions. Licensee acknowledges that, except as
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stated in Sections 2.1 and 2.2, this Agreement does not grant Licensee any right
or license under any proprietary rights of MystiCom and that any usage of the
Core not within the scope of the licenses granted in this Agreement is
prohibited.
3. DELIVERY AND ACCEPTANCE
3.1 Deliverables. MystiCom will use reasonable commercial efforts to
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deliver the Deliverables to Licensee in accordance with the schedule in Exhibit
B.
3.2 Acceptance. The Deliverables will be deemed accepted by Licensee
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if MystiCom is not notified in writing of any Errors ("Error Report") within
thirty (30) days after delivery of each Deliverable to Licensee; provided that
the time period will be sixty (60) days for the final Deliverable. In the event
that Licensee notifies MystiCom of such Errors, MystiCom will, at its option,
repair or replace the Deliverable, as soon as commercially practicable. Prior to
submitting an Error Report, Licensee will make reasonable efforts to isolate the
Error to a particular file or hardware environment. The Error Report will state
with particularity the Error discovered, identify the file in which the Error
exists, and identify the hardware and software environment in which Licensee
tested the Deliverable. Licensee also will provide MystiCom with access to any
hardware and software, not already in MystiCom's possession, which Licensee used
to test
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the Deliverable. The foregoing procedure will be repeated until (a) final
written acceptance of the Deliverable by Licensee, or (b) the parties mutually
agree in writing to terminate this Agreement.
4. COMMERCIAL TERMS
4.1 Fees and Royalties. In consideration of the licenses and other
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rights granted under this Agreement, Licensee will pay MystiCom the amounts set
forth in Exhibit C in accordance with the terms in Exhibit C. Licensee will,
within* after the end of each calendar quarter, send to MystiCom a report
detailing the number of Devices sold during the quarter to which the royalty
payment applies, the number of Instantiations per Device, the rates at which
royalties were computed, the amount of royalties due, and all additional details
necessary to show how these amounts were determined; provided that during the
1st Year of Production (as defined in Exhibit C), no reports will be due. The
report will be substantially in the form as described in Exhibit F. Licensee
will provide MystiCom with a written, quarterly report, whether or not any
royalty payments are due. Licensee also will pay to MystiCom all royalties to
which MystiCom is entitled concurrently with delivery of the quarterly report.
All payments due under this Agreement will be paid in U.S. dollars, without
deductions except as expressly permitted herein. All payments due hereunder
above and beyond any prepaid royalty will be earned on the date Licensee ships
each Device to a Third Party. "Third Party" means any person or entity that
receives a Device for use (i) as an OEM; (ii) as a distributor; (iii) as an end
user; or (iv) in any other capacity that uses the Device for the purposes of
that person or entity.
4.2 Payment. All payments made pursuant to this Agreement will be
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made by wire transfer to the Hapoalim Bank, Branch 584, Account No. 40008,
Swift: POALILITA (or such other account as MystiCom may notify Licensee in
writing), for credit to MystiCom by the applicable due date for such payment.
4.3 Late Payment. Any payment not made when due will bear interest at
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a rate equal to * per month or the highest rate permitted by applicable law,
whichever is less, on the unpaid amounts from time to time outstanding from the
date on which portions of such amounts became due and owing until payment
thereof in full.
4.4 No Set-Off. No part of any amount payable to either party
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hereunder may be reduced due to any counterclaim, set-off, adjustment or other
right that the other party may have against such party.
4.5 Taxes. Licensee will be responsible for the payment of Taxes
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imposed in the United Kingdom on the fees paid hereunder, including without
limitation license fees and royalties ("U.K. Taxes"). MystiCom will be
responsible for the payment of Taxes imposed in Israel on the fees paid
hereunder, including without limitation license fees and royalties. All payments
or reimbursements under this Agreement and any instrument or agreement required
hereunder will be made without set off or counter claim and free and clear and
without deduction for any and all present and future Taxes. Licensee agrees to
cause all U.K. Taxes to be paid directly to the appropriate U.K. governmental
authority or authorities as applicable. Licensee will provide evidence that all
applicable U.K. Taxes have been paid to the appropriate taxing authority by
delivering to MystiCom receipts or notarized copies thereof within thirty (30)
days after the due date for such U.K. Tax payments.
4.8 Books and Records. Licensee will keep true and accurate records
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and books of account containing all the data reasonably required for the full
computation and verification of royalty payments due under this Agreement, as
reported on Exhibit F, for each quarter of each of Licensee's fiscal years. Such
materials will be retained for a period of at least three (3) years following
the end of the fiscal year to which they relate. Licensee's books of account
will be maintained in accordance with generally accepted accounting principles
consistently applied. Upon thirty days advance written notice Licensee will
permit the auditing and copying of such records and books of account by
MystiCom's representatives at Licensee's headquarters facility; provided that
MystiCom will not audit Licensee during the first year of this Agreement. Fees
and expenses incurred in connection with such inspections (such as professional
fees
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* This redacted material has been omitted pursuant to a request for
confidential treatment, and the material has been filed separately with the
Commission.
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and expenses paid to accountants or other examiners retained by MystiCom and the
cost of copying records and books of account) will be borne by MystiCom, unless
such inspection reveals that an error of five percent (5%) or more in any
payment was made during any given quarter, in which case the fees and expenses
incurred in connection with the inspection during which such error was
discovered will be borne by Licensee. Audits will not unreasonably interfere
with Licensee's business activities and will not be made more frequently than
once per calendar year, unless an audit reveals an underreporting in excess of
five percent (5%).
5. PROPRIETARY RIGHTS OWNERSHIP
5.1 Ownership. MystiCom will retain all ownership, right, title, and
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interest in and to the Intellectual Property Rights in all current and hereafter
existing revisions of or modifications to the Core, Documentation, and Updates.
5.2 Proprietary Notices. Licensee agrees to reproduce and apply all
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proprietary notices, including copyright notices, of MystiCom to all copies, in
whole or in part, in any form, of the Core and Documentation made hereunder.
5.3 Infringement by Third Parties. If Licensee learns of any possible
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infringement or misappropriation of MystiCom's Intellectual Property Rights, it
will immediately give notice thereof to MystiCom. Licensee agrees to cooperate
with MystiCom's reasonable efforts to seek legal remedies for such infringements
and misappropriations.
6. MAINTENANCE
6.1 Error Correction. For a period of * following the Effective Date,
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MystiCom will, at no additional charge to Licensee, use reasonable commercial
efforts to fix any and all Errors, and provide technical support relating to the
Core as set forth in Exhibit D hereto. Upon each successful fix or correction of
Errors, MystiCom will deliver to Licensee the updated Core comprising such fix
or correction.
6.2 Ongoing Support. Following expiration of the period set forth in
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Section 6.1, Licensee may elect to purchase additional support and maintenance
services from MystiCom at MystiCom's then-current hourly rate which will not
exceed a * per year annual increase from MystiCom's current rate which is * per
hour, plus out of pocket expenses. Alternatively, Licensee may purchase annual
support and maintenance services at MystiCom's then-current annual rates,
payable in advance in quarterly installments. Licensee may cancel such services
on a going-forward basis upon receipt of MystiCom's invoice for any quarterly
installment.
7. WARRANTIES
7.1 Limited Performance Warranty. MystiCom represents and warrants that
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the Core will conform in all material respects to the Specifications for a
period of * after acceptance of the Core in accordance with Section 3.2. The
warranty set forth above will not apply if (a) the Devices are used in any
direct or active operations of any equipment in any nuclear, aviation, mass
transit, or medical applications, or in any other inherently dangerous
applications, or (b) the Core is not used in accordance with the Documentation
or is otherwise misused.
7.2 Documentation Warranty. MystiCom represents and warrants that the
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Core datasheet will accurately describe the use of the Core.
7.3 Remedies. Licensee's sole and exclusive remedy and MystiCom's sole
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and exclusive obligation for a breach of the warranties set forth in Sections
7.1 and 7.2 will be the Error correction provided in accordance with Section 6.
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* This redacted material has been omitted pursuant to a request for
confidential treatment, and the material has been filed separately with the
Commission.
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7.4 Warranty Exclusion. Except as provided in Sections 7.1 and 7.2,
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MystiCom makes no warranty of any kind with regard to the Deliverables, the
Core, the Documentation, or any MystiCom Intellectual Property Rights. MYSTICOM
EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING IN LAW,
CUSTOM, CONDUCT OR OTHERWISE.
7.5 No Warranty Pass Through. Licensee agrees that it will make no
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warranty, express or implied, on behalf of MystiCom and will indemnify and hold
MystiCom harmless from any liability, cost, expense or obligation relating to
any such warranty or representation Licensee may make regarding the Devices or
the Core.
8. INDEMNIFICATION
8.1 Indemnification by MystiCom. MystiCom will indemnify, defend and
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hold Licensee harmless from and against any and all liabilities, losses,
damages, fees, costs and expenses, including without limitation reasonable
attorneys' fees, incurred by Licensee resulting from a third party claim, suit,
action or proceeding (a "Claim") alleging that the Core infringes a valid United
States, European Union, Japan, Singapore, or Taiwan third party patent or
copyright or misappropriates a third party's trade secrets; provided that
Licensee (a) promptly notifies MystiCom in writing of such Claim; (b) provides
MystiCom sole control of the defense or settlement of such claim; and (c)
provides MystiCom assistance at MystiCom's request and reasonable expense.
Licensee may participate in the defense or settlement of the Claim at its own
expense. If an injunction is obtained against Licensee for use of the Core, or
if MystiCom reasonably believes that such injunction is likely, MystiCom will,
at its option and its expense, either (i) procure for Licensee the right to
continue using such Core, (ii) replace or modify Core or the infringing portions
thereof so that they become non-infringing, or (iii) refund royalties and fees
paid therefor depreciated on a straight-line basis over three (3) years and
terminate this Agreement. MystiCom may not settle or compromise any Claim
without Licensee's prior written consent unless such settlement or compromise
unconditionally releases Licensee. MystiCom will have no liability or obligation
to defend or indemnify for any Claim arising from (A) the combination of Core
with Licensee or third party materials or intellectual property, unless it is
determined by a court of competent jurisdiction that the Core is the sole
infringing element of such claim; (B) the modification or translation of Core or
any portion of the Core by a party other then MystiCom; (C) any use by Licensee
of the Core after Licensee becomes aware that the Core may be infringing; or (D)
use of an outmoded or superseded version of the Core ninety (90) days after
MystiCom has made available a revised, non-infringing version.
8.2 Indemnification by Licensee. Licensee will indemnify, defend and
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hold MystiCom harmless from and against any and all liabilities, losses,
damages, fees, costs and expenses, including without limitation reasonable
attorneys' fees, incurred by MystiCom resulting from a Claim that the
manufacture, use or sale of the Devices infringes any patent, copyright or other
Intellectual Property Rights of any third party or misappropriates any trade
secret of any third party, provided that such action is not based solely on the
incorporation or use of the unmodified Core used strictly in accordance with the
license terms of this Agreement; and provided further that MystiCom (a) promptly
notifies Licensee in writing of such Claim; (b) provides Licensee sole control
of the defense or settlement of such Claim except that Licensee may not settle
or compromise any Claim without MystiCom's prior written consent unless such
settlement or compromise unconditionally releases MystiCom; and (c) provides
Licensee assistance at Licensee's request and reasonable expense. Licensee may
not settle or compromise any Claim without MystiCom's prior written consent
unless such settlement or compromise unconditionally releases MystiCom.
8.3 Entire Liability for Infringement. The foregoing provisions of this
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Section 8 state the entire liability and obligations of each party and the
exclusive remedy of each party with respect to any alleged Intellectual Property
Rights infringement by the Deliverables, the Core, and the Documentation.
9. LIMITATION OF LIABILITY
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OTHER THAN FOR BREACHES OF SECTIONS 2 AND 10, OR FOR ANY AMOUNTS
PAYABLE PURSUANT TO SECTION 8, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY
FOR ANY LOST PROFITS OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR
EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF
BUSINESS, LOSS OF USE OR OTHER ECONOMIC DAMAGE, INCLUDING INJURY TO PROPERTY, AS
A RESULT OF BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT, REGARDLESS
OF WHETHER THE OTHER PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT
KNEW OF, THE POSSIBILITY THEREOF. IN NO EVENT WILL MYSTICOM'S AGGREGATE
LIABILITY EXCEED THE AMOUNTS RECEIVED BY MYSTICOM FROM LICENSEE UNDER THIS
AGREEMENT. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THE FOREGOING
LIMIT.
10. CONFIDENTIALITY
10.1 Nondisclosure and Non-Use. All Confidential Information will be
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treated as confidential and not disclosed or transferred by the recipient to
third parties, other than the recipient's agents and employees who need to know
such information to serve the recipient and who are obligated to treat such
information as confidential. Without limiting the foregoing, Licensee
acknowledges that the Core constitutes trade secrets and proprietary properties
of MystiCom and agrees not to disclose or transfer such information or materials
(or any copy or counterpart), regardless of marking requirements, to any third
person, nor use these in any manner except pursuant to this Agreement, without
MystiCom's prior written consent; and Licensee will take the more stringent of
reasonable measures and the measures it uses to protect its own comparable
information and material, to prevent this transfer and use, including without
limitation restricting access to its employees who require access to serve
Licensee and who are obligated to treat such information as confidential.
10.2 Exclusions. Notwithstanding any other provision of this Agreement,
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neither party will be restricted from using information received from the other
party which: (a) is or becomes public knowledge through no wrongful act of the
recipient; (b) is rightfully obtained by the recipient from a third party
without similar restriction and without breach of any obligation owed to the
disclosing party; (c) is approved for release by written authorization of the
disclosing party. The recipient of information will have the burden of
establishing the applicability of any of the above mentioned exclusions.
10.3 Enforcement. Each party will exert its reasonable commercial
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efforts, including, but not limited to the execution of proprietary
non-disclosure agreements with employees, consultants, and other third parties,
and legal action, to enforce compliance with the provisions of this Section 10
by its directors, officers, employees, and any third party to whom it provided
access to Confidential Information of the other party.
11. MARKETING
11.1 Intellectual Property Markings. Licensee shall xxxx the
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documentation for the Devices with a notice reflecting MystiCom's ownership of
the Core and comply with MystiCom's reasonable instructions regarding such
marking.
11.2. Trademarks. MystiCom grants to Licensee a non-exclusive,
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non-transferable, limited license to use MystiCom's trademarks and logos, as
identified in Exhibit E ("Trademarks") on the Devices and Documentation and in
Licensee's advertising and printed material for the Devices, provided that
Licensee complies with the terms herein. Licensee acknowledges the ownership of
the Trademarks by MystiCom, agrees that it will do nothing inconsistent with
such ownership, and that all use of the Trademarks will inure to the benefit of
and be on behalf of MystiCom. Nothing in this Agreement will give Licensee any
right, title or interest in the Trademarks other than the right to use the
Trademarks in connection with the Devices in accordance with the license granted
it herein. Licensee agrees to use the Trademarks only in the form and manner and
only with appropriate legends as prescribed from time to time in writing by
MystiCom, and not to use any trade name, business name or corporate name, or any
trademark or service xxxx in combination with any of the Trademarks without in
each instance obtaining the prior written approval of MystiCom. Licensee agrees
to use reasonable efforts to notify MystiCom of
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any unauthorized use of the Trademarks by others promptly as it comes to
Licensee's attention. MystiCom will have the exclusive right and discretion to
bring infringement or unfair competition proceedings involving the Trademarks.
Licensee, at MystiCom's request, will assist MystiCom in obtaining registrations
for the Trademarks.
11.3 Quality Standards. Licensee will ensure that the Devices are
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subject to the same quality control procedures and standards governing similar
Licensee products. Licensee will provide MystiCom with specimens of its use of
the Trademarks upon request to ensure Licensee's conformance with this Section.
11.4 Publicity. MystiCom will have the right to issue press releases
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announcing the relationship between Licensee and MystiCom, provided that the
parties will mutually agree upon the content and timing of any such press
releases, and to use Licensee's name on MystiCom's customer lists.
11.5 Commercialization. Licensee will use commercially reasonable
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efforts to manufacture, market and sell the Devices.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement will commence on the Effective
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Date and continue for three (3) years after acceptance of final Deliverable,
unless earlier terminated under this Section 12; provided that if Licensee
chooses to use the Core in a new process technology, this Agreement will
automatically be extended for an additional two (2) years. This Agreement may be
renewed for additional one (1) year terms upon mutual written agreement of the
parties at least thirty (30) days prior to the end of the term.
12.2 Termination With Cause. Either party may terminate this
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Agreement upon thirty (30) days written notice of a material breach of this
Agreement by the other party hereto if such breach is not cured within such
thirty (30) day period; provided, however, that the cure period for a failure to
make a payment when due will be ten (10) days. Notwithstanding the foregoing,
MystiCom may terminate this Agreement immediately if Licensee becomes insolvent
in any voluntary or involuntary bankruptcy proceeding or any other proceeding
concerning insolvency, dissolution, cessation of operations, reorganization of
indebtedness or the like and the proceeding is not terminated within sixty (60)
days.
12.3 Effect of Termination
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12.3.1 Breach by Licensee. In the event that this Agreement
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is terminated as a result of material breach of Licensee, then Licensee will not
have the right to receive Updates or other services from MystiCom or to develop
new products and must cease distribution of the Devices immediately.
12.3.2 Breach by MystiCom. If this Agreement is terminated
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by Licensee with cause, due to a material breach by MystiCom, Licensee will
retain the right to sell existing Devices and to support existing customers
using Core, provided that any applicable royalties are duly paid by Licensee, in
accordance with Exhibit C; provided further that Licensee may deduct from such
payments a mutually agreed upon amount for damages incurred by Licensee from
MystiCom's breach.
12.3.3 Additional Remedies. Termination will not relieve
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either party from any liability arising from any breach of this Agreement.
Neither party will be liable to the other for damages of any kind solely as a
result of terminating this Agreement in accordance with its terms, and
termination of this Agreement by a party will be without prejudice to any other
right or remedy of such party under this Agreement or applicable law.
12.4 Survival. Sections 1, 2 (subject to payment under Section 4 and
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termination under Section 12), 4, 5, 7, 8, 9, 10 12 and 13 will survive any
termination or expiration of this Agreement.
13. GENERAL PROVISIONS
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13.1 Relationship. The relationship between the parties will be that
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of independent contractors. Nothing contained herein will be construed to imply
a joint venture, principal or agent relationship, or other joint relationship,
and neither party will have the rights, power or authority to create any
obligation, express or implied, on behalf of the other.
13.2 Dispute Resolution. Except as provided in Section 13.11, in the
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event of any dispute under this Agreement, the parties expressly agree to
attempt to resolve the dispute between the appropriate officers of each party.
If such attempt is unsuccessful, the parties agree to submit the dispute to
nonbinding mediation. In the event that the dispute is not resolved within
thirty (30) days after submission to a mediator, either party may then seek
judicial relief.
13.3 Governing Law; Jurisdiction. This Agreement will be governed in
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all respects by the substantive laws of the State of California, United States
of America, as applied to agreements entered into and to be performed in
California between California residents, exclusive of its conflicts of laws
rules. The parties expressly agree that the United Nations Convention on
Contracts for the International Sale of Goods is specifically excluded from
application to this Agreement. The parties expressly stipulate that all
litigation under this Agreement will be brought in the state courts of the
County of Santa Clara, California, or in the U.S. District Court for the
Northern District of California.
13.4 Attorneys' Fees. In the event any proceeding or lawsuit is
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brought by either party in connection with this Agreement, the prevailing party
in such proceeding will be entitled to receive its costs, expert witness fees
and reasonable attorneys' fees, including costs and fees on appeal.
13.5 Assignment. Licensee may not assign or otherwise transfer this
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Agreement nor any rights or obligations under this Agreement, in whole or in
part, without MystiCom's prior written consent, which will not be unreasonably
withheld. Any attempt by Licensee to effect such an assignment or transfer
without MystiCom's written consent will be void. The parties agree that Licensee
will not have to pay any transfer or assignment fees for any transfer or
assignment made in accordance with this Section.
13.6 Waiver. Failure by either party to enforce any of its rights
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under this Agreement will not be deemed a waiver of any right which that party
has under this Agreement.
13.7 Severability. If for any reason a court of competent
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jurisdiction finds any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced to the maximum
extent permissible so as to effect the intent of the parties, and the remainder
of this Agreement will continue in full force and effect. The parties agree to
negotiate in good faith an enforceable substitute provision for any
unenforceable provision that most nearly achieves the intent and economic effect
of the unenforceable provision.
13.8 Export Compliance; Restricted Rights. Licensee will not export,
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directly or indirectly, the Core or the Devices, or any portions of them in any
form, to any country for which United States laws or regulations require an
export license or other governmental approval, without first obtaining such
license or approval. Licensee hereby agrees to indemnify and hold MystiCom
harmless from and against any losses, damages, penalties or causes of action
resulting from a violation of this Section. If Licensee distributes Devices to
or on behalf of the United States of America, its agencies and/or
instrumentalities (collectively, the "Government") Licensee will ensure that
such Devices are delivered to the Government with restricted rights. Licensee
further agrees to take all reasonable steps to ensure that the Core and the
Devices receive equivalent or greater protection if licensed to foreign
governmental entities.
13.9 Notices. Except as specifically provided herein, all notices
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required hereunder will be in writing and will be given by personal delivery,
international courier service, or by mail, certified or registered, postage
prepaid, return receipt requested, to the parties at their respective addresses
set forth below, or to any party at such other addresses as will be specified in
writing by such party to the other parties in accordance with the terms and
conditions of this Section.
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MystiCom Licensee
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MystiCom Limited Virata Corporation
0 Xx'xxxxx Xxxxxx 4700 Falls of Xxxxx Xxxx
X.X. Xxx 0000 Xxxxx 000
Xxxxxxx 00000 Xxxxxx Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx Attn: Xxx Xxxxxxx
All notices will be deemed effective upon personal delivery, or seven (7) days
following deposit in the mail, or two (2) business days following deposit with
any international courier service in accordance with this Section.
13.10 Injunctive Relief. It is expressly agreed that a violation of
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this Agreement will cause irreparable harm to MystiCom and that a remedy at law
would be inadequate. Therefore, in addition to any and all remedies available at
law, either party will be entitled to an injunction or other equitable remedies
in all legal proceedings in the event of any threatened or actual violation of
any or all of the provisions of this Agreement.
13.11 Force Majeure. Except for the payment of monies due under this
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Agreement, neither party will be liable to the other for delays or failures in
performance resulting from causes beyond the reasonable control of that party,
including, but not limited to, acts of God, labor disputes or disturbances,
material shortages or rationing, riots, acts of war, governmental regulations,
communications or utility failures, or casualties; provided that the delayed
party: (a) gives the other party prompt written notice of such cause and (b)
uses its reasonable efforts to correct such failure or delay in its performance.
The delayed party's time for performance or cure under this Section will be
extended for a period equal to the duration of the cause or sixty (60) days,
whichever is less.
13.12 Headings. The section headings used in this Agreement are used
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for convenience only and are not to be considered in construing or interpreting
this Agreement
13.13 Counterparts. This Agreement may be executed in one or more
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counterparts. each of which will be deemed an original, but which collectively
will constitute one and the same instrument.
13.14 Entire Agreement; Amendment. This Agreement, including all
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Exhibits, reflects the entire agreement of the parties regarding the subject
matter hereof, and supersedes all prior or contemporaneous understanding or
agreements between the parties, whether written or oral. This Agreement will not
be amended, altered or changed except by written agreement signed by both
parties. This Agreement is executed in the English language.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives.
MYSTICOM LIMITED VIRATA LTD.
"MystiCom" "Licensee"
By: /s/ XXXXX XXXXXXX By: /s/ XXXXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxxx
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Title: CEO Title: VP Operations
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