EXHIBIT 10.12
TECHNOLOGY LICENSE AGREEMENT
THIS AGREEMENT, dated as of the 23rd day of October , 1991, by and
between RAMTRON CORPORATION ("Ramtron"), a Delaware, USA, corporation having its
principal office at 0000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Xxxxxx
Xxxxxx of America and Racom Systems Inc. ("Licensee"), a Delaware USA
corporation having its principal office at ____________________________________.
RECITALS
A. Ramtron has developed and owns certain confidential and proprietary
thin-film ferroelectric technology with minimum physical dimensions of
1.2 microns utilizing a storage cell comprised of two transistors and
two capacitors which, when applied to a separate base semiconductor
technology, can be used for the manufacture and production of
nonvolatile, random access semiconductor memory devices.
B. Licensee desires to acquire a license to use the Ferroelectric
Technology in order to manufacture and sell Ferroelectric RF/ID
Products, and Ramtron is willing to grant such a license to Licensee
subject to the terms of this Agreement.
C. Ramtron is a wholly-owned subsidiary of Ramtron International
Corporation ("RIC"), a Delaware, USA, corporation having the same
principal office as Ramtron.
NOW, THEREFORE, in consideration of the recitals and the mutual covenants
contained herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Ramtron and Licensee hereby agree as
follows:
ARTICLE I Definitions
When used in this Agreement, the following terms have the following meanings:
1.1 "Affiliate" means any enterprise, whether a corporation,
unincorporated association, joint venture, partnership or otherwise in
which a person or corporation, any holding company or subsidiary of
such corporation, or any holding company or subsidiary of such holding
company, participates directly or indirectly and in relation to such
enterprise, such person, corporation or any such holding company or
subsidiary has the power to appoint the management thereof, or control
the majority of votes at a general meeting.
1.2 "Ferroelectric Technology" means the technology referred to in Recital
A and all patents, semiconductor chip or circuit Layout rights,
copyrights, utility models, designs, confidential or other proprietary
rights and applications or rights for registration therefor,
processes, formulae, drawings, trade secrets, know-how,
technical data and other information relevant to the design and
manufacture of "Ferroelectric RF/ID Products" (as hereinafter defined)
based on the Technology referred to in Recital A made or developed by
Ramtron as of the date of this Agreement together with the
Improvements.
1.3 "RF/ID Product" means a device remotely powered by electromagnetic
waves or sound waves in which data can be retained in such device
and/or altered using electromagnetic waves or sound waves without
electrical or physical contact; this includes a device containing a
microprocessor, commonly known as a "smart card." RF/ID Product does
not include random access non-contact memory cards whose primary
application is data storage, not identification.
1.4 "Ferroelectric RF/ID Products" means RF/ID Products that
Monolithically Incorporate the Ferroelectric Technology and have a
memory capacity of no more than 256-kilobits.
1.5 "Improvements" means all improvements, enhancements and developments
to the Ferroelectric Technology, processes and materials for use
therein, made by Ramtron or its Affiliates prior to June 30, 1996, or
to which Ramtron or its Affiliates may be entitled or may become
entitled prior to June 30, 1996. "Improvements" shall not include any
such improvements, enhancements and developments: (a) if Ramtron or any
of its Affiliates, as the case may be, are expressly prohibited from
making same available to Licensee pursuant to a bona fide contract with a
third party; and (b) unless they have been reduced to commercial
practice, or are capable of imminent reduction to commercial practice
by Ramtron, its Affiliates or Licensee.
1.6 "dollars" or "$" means United States currency unless otherwise
specified.
1.7 "Technology License" has the meaning set forth in Section 2.1.
1.8 "Effective Date" means date of this Agreement.
1.9 "Net Sales" means the total of all gross amounts Licensee invoices or
charges purchasers or licensees or otherwise receives, whether from
purchasers or licensees for or with regard to the sale, license or
other transfer for value of Ferroelectric RF/ID Products in integrated
circuit or wafer form that are Manufactured By (or manufactured on
behalf of Licensee by any sublicensee or subcontractor) Licensee, less
costs of insurance incident to transportation and shipping charges,
excise taxes and customs duties, allowances for actual returns and
uncollectible accounts. Should Licensee sell such Ferroelectric RF/ID
Products in combination with other components or equipment, then the
calculation of Net Sales shall be based on the price normally charged
by Licensee for such Ferroelectric RF/ID Products when separately
invoiced or priced or if no such separately invoiced or priced sales
of such Ferroelectric RF/ID Products have been made, then the
calculation of Net Sales shall be based on the price which Licensee
would charge for such Ferroelectric RF/ID Products in an
arm's-length commercial sale transaction for cash. "Net Sales" shall
not include any amount which Licensee invoices or charges purchasers
or licensees or otherwise receives from purchasers or licensees with
regard to products purchased by Licensee pursuant to the Supply
Agreement of even date between the parties or any similar agreement
which may be entered into between the parties or their Affiliates from
time to time.
1.10 "Royalty Period" means a period of three (3) months ending on the last
day of March, June, September and December of each year this Agreement
is in effect referred to in Section 2.4, following the expiration of
the immediately preceding Royalty Period.
1.11 "Royalty Year" means each period comprised of each consecutive set of
four (4) Royalty Periods.
1.12 "FRAM Product" means a random access semiconductor memory device
utilizing Ramtron's thin-film ferroelectric technology.
1.13 "Monolithically Incorporate" means all electronic functions are
contained in a single integrated circuit.
1.14 "Manufactured By" means RF/ID products manufactured by Licensee or for
or on behalf of Licensee by any person other than Ramtron or any of
its Affiliates.
ARTICLE II Technology License and Fees
2.1 Grant of License
(a) Upon the terms and subject to the conditions of this Agreement,
Ramtron hereby grants to Licensee a worldwide, nonexclusive,
nontransferable, right and license to use the Ferroelectric
Technology in the design, manufacture, sale, lease and
distribution of Ferroelectric RF/ID Products (the "Technology
License"). The Technology License may not be used by Licensee
for any purpose other than those specifically stated in this
Section 2.1.
(b) With respect to Ramtron's grant of licenses subsequent to the
date or this Agreement other than to the Licensee, Ramtron may,
in its sole discretion, restrict such licenses to preclude the
use of the Ferroelectric Technology in the design, manufacture,
sale, lease or distribution of Ferroelectric RF/ID Products by
including provisions with the following intent:
"Notwithstanding any other provision of this license, the
licensee acknowledges to Ramtron that the right to use the
Ferroelectric Technology in the design, manufacture, sale, lease
or distribution of Ferroelectric RF/ID Products is expressly
excluded from the rights conferred on the licensee hereunder and
the licensee is expressly prohibited from
using the Ferroelectric Technology in the design, manufacture,
sale, lease and distribution of Ferroelectric RF/ID Products."
(c) In the event that Ramtron does not restrict such licenses as
described above and such licensee or any of its Affiliates
commercially sells Ferroelectric RF/ID Products on or before
December 31, 1996, then, subject to Subsection (f) below,
Licensee shall be entitled to give written notification to
Ramtron requiring either that: (i) if Licensee has paid to
Ramtron the Additional License Fee pursuant to Section 2.2.1(b),
then Ramtron shall pay to Licensee the sum of TWO MILLION DOLLARS
($2,000,000) within thirty (30) days after receiving the
notification; or (ii) if Licensee has not paid to Ramtron the
Additional License Fee pursuant to Section 2.2.1(b), then Ramtron
shall cancel the Additional License Fee referred to in Section
2.2.1(b) Ramtron and Licensee hereby acknowledge that the
payment of TWO MILLION DOLLARS ($2,000,000.00) or alternatively
the cancellation of the Additional License Fee shall constitute
Licensee's sole and exclusive right in such event and such amount
represents a genuine pre-estimate of the liquidated damages
likely to be suffered by the Licensee as a result of commercial
sales of Ferroelectric RF/ID Products by such other licensee or
its Affiliates.
(d) Ramtron acknowledges that there is no restriction imposed upon
Seiko Epson Corporation or Deutsche ITT Industries GWBH ("ITT")
pursuant to licenses granted by Ramtron to such parties to
exploit the Ferroelectric Technology under License Agreement
dated 2 March, 1989 and 1 June, 1988, respectively, as amended
from time to time. In the event that either of Seiko Epson
Corporation or ITT or any of their respective Affiliates
commercially sells Ferroelectric RF/ID Products on or before June
30 1996, then, subject to Subsection (f) below, Licensee shall be
entitled to give written notification to Ramtron requiring either
that: (i) if License has paid to Ramtron the Additional License
Fee pursuant to Section 2.2. 1 (b) , then Ramtron shall pay to
the Licensee the sum of ONE MILLION DOLLARS ($1,000,000.00)
within thirty (30) days after receiving the notification; or (ii)
if Licensee has not paid to Ramtron the Additional License Fee
pursuant to Section 2.2.1(b), then Ramtron shall reduce the
Additional License Fee referred to in Section 2.2.1(b) by the sum
of ONE MILLION DOLLARS ($1,000,000.00). Ramtron and Licensee
hereby acknowledge that the payment of ONE MILLION DOLLARS
($1,000,000.00) or alternatively the reduction of the Additional
License Fee by, ONE MILLION DOLLARS ($1,000,000.00) shall
constitute Licensee's sole and exclusive right in such event and
such amount represents a genuine estimate of the liquidated
damages likely to be suffered by the Licensee as a result of
commercial sales of Ferroelectric RF/ID Products by both or any
of Seiko Epson Corporation, ITT or their Affiliates.
(e) Neither Ramtron nor any Affiliate of Ramtron shall manufacture, sell,
lease or distribute either Ferroelectric RF/ID Products or
semiconductor components that Ramtron "knows" are intended to
Monolithically Incorporate RF/ID Products and the Ferroelectric
Technology to any company other than Licensee; nor shall it directly
enter into the RF/ID Product business except pursuant to its owner-
ship interest in Licensee. As used herein, "knows" shall mean the
actual acknowledge of Ramtron or any Affiliate of Ramtron and Ramtron
shall have no obligation to make affirmative inquiry of any persons
other that Ramtron's employees and employees of Ramtron's Affiliates
regarding the intended use of any such Ferroelectric RF/ID Products or
semiconductor components that it manufactures sells, leases, or
distributes.
(f) Notwithstanding anything contained in this Agreement or elsewhere to
the contrary:
(i) Licensee shall be entitled to the remedies set forth in
Subsection (c) above only once, that is, only with respect to the
first such additional licensee who commercially sells
Ferroelectric RF/ID Products on or before December 31 1996, and
Licensee shall not be entitled to the referenced payment or
cancellation of the Additional License Fee with respect to
additional licensees, regardless of number;
(ii) Licensee shall be entitled to the remedies set forth in
Subsection (d) above only once, that is, only with respect to
commercial sales of Ferroelectric RF/ID Products on or before
June 30 1996 by the first of Seiko Epson Corporation, ITT or
their respective Affiliates, and not by each of such parties; and
(iii) The amount of any payment or cancellation of the Additional
License Fee to which Licensee may be entitled under Subsection
(c) above shall be reduced (but not below zero) by the amount of
any payment or debt forgiveness to which Licensee may be
entitled, or may have received, under Subsection (d) above, and
vice versa, such that the maximum aggregate amount of payments
and/or debt forgiveness to which Licensee is or may be entitled
under Subsection (c) and (d) above shall not exceed TWO MILLION
DOLLARS ($2,000,000) in any event.
2.2 License Fees. For and in consideration of Ramtron's grant to Licensee
of the Technology License:
2.2.1 Licensee shall pay the following non-refundable initial and additional
license fees to Ramtron:
(a) INITIAL LICENSE FEE. Licensee shall pay an initial license fee
to Ramtron of TWO MILLION DOLLARS ($2,000,000.00) ("Initial
License Fee") on or before October 30, 1991; provided that
Ramtron shall credit against the payment of this Initial License
Fee the Option Payment made by Licensee to Ramtron pursuant to
Section 2 of the Option Agreement entered into by the parties as
of October 16, 1991.
(b) ADDITIONAL LICENSE FEE. Licensee shall pay an additional license
fee to Ramtron of TWO MILLION DOLLARS ($2,000,000.00)
("Additional Licensee Fee") on or before the later to occur of
(i) June 30 1993 or (ii) the date on which Ramtron notifies
Licensee that Ramtron has sold, to at least three (3) customers
of Ramtron, qualified Ramtron FRAM Product that have a memory
capacity of at least 64-kilobits.
2.2.2 Licensee shall issue to Ramtron, at no additional cost to Ramtron,
such quantity of shares as Ramtron shall be entitled to receive
pursuant to the provisions of that certain Shareholders Agreement of
even date herewith between Ramtron, Intaq International Limited,
Licensee and AWA Limited.
2.3 Royalties. As additional consideration the grant of the Technology
License, Licensee agrees to pay to Ramtron for the period from the
Effective Date through to June 30 1996, royalties equal to two
percent (2%) of the Net Sales earned by Licensee from the sale,
license or other of transfer for value of Ferroelectric RF/ID
Products Manufactured By Licensee during each Royalty Period.
Thereafter, Licensee shall similarly pay Ramtron royalties but at the
reduced rate of one percent (l%) of Net Sales. This section shall
not apply to products purchased by Licensee pursuant to the Supply
Agreement of even date between the parties or any similar agreement
which may be entered into between the parties from time to time.
2.4 Certification of Royalties. Licensee shall, on or before 30 April, July
31, October 31 and January 31 in each year during which royalties are
payable under this Agreement furnish to Ramtron a statement, certified by a
financial officer of Licensee, concerning the Net Sales by or on behalf of
Licensee of Ferroelectric RF/ID Products Manufactured By Licensee during
the preceding Royalty Period in sufficient detail to permit the computation
of the royalties due for such Royalty Period, and shall accompany such
statement by payment, in immediately available dollar funds, of the
royalties due according to that statement. On or before the last day of
the first three month period following the end of each Royalty Year,
Licensee shall furnish to Ramtron a comparable statement, certified by an
internationally, recognized firm of independent certified public
accountants, certifying the Net sales by or on behalf of Licensee
of Ferroelectric RF/ID Products Manufactured By Licensee during the
preceding Royalty Year.
Licensee shall accompany such statement by payment in immediately available
United States dollar funds of any amounts due to Ramtron for such preceding
Royalty Year.
2.5 Dispute Regarding Royalties. In the event of any dispute regarding the
amount of any royalty payment allegedly due under or pursuant to this
Agreement, the parties shall agree in commercial good faith on and appoint
an internationally recognized firm of independent certified public
accountants, who shall audit the books and records of Licensee and
determine the amount, if any, of the disputed royalty payment or payments,
which determination shall be final and legally binding on the parties for
all purposes of this Agreement. If the parties are unable to agree on such
a firm of independent certified public accountants, such a firm shall be
appointed by the Chairman, President or the highest officer at such time of
the American Institute of Certified Public Accountants. Ramtron and
Licensee shall pay fifty percent (50%) of the cost of any audit conducted
pursuant to this Section 2.5.
ARTICLE III Technical Materials and Assistance.
3.1 Technical Materials. Each of Licensee and Ramtron shall furnish and
provide to the other reasonable technical assistance, materials information
and data reasonably necessary for the exploitation of the Technology
License, to the extent it shall be reasonably necessary for the other
party's performance of its obligations undertaken in this Agreement,
provided, unless otherwise agreed, that all costs and expenses, including
salary, employee benefits, travel and lodging of such personnel, and
support staff shall be paid in advance by the party receiving such benefit
or reimbursed immediately upon presentation to the recipient of appropriate
documentation evidencing the other party's having paid or incurred such
costs or expenses as a result of such assistance.
3.2 Assistance. Ramtron shall at the request of Licensee and a Ramtron's
expense (to be agreed from time to time), provide up to two (2) of
Ramtron's personnel for no more than one (1) year to assist Licensee in the
transfer of the Ferroelectric Technology to Licensee for Licensee's
manufacture of Ferroelectric RF/ID Products. However, in the event that
such Ramtron employees shall be required to travel to Licensee's premises,
Licensee shall pay all travel and travel related costs of such Ramtron
employees. For a period of three (3) years from the Effective Date of the
Technology License, Ramtron agrees to receive and to educate and train
personnel of Licensee at Ramtron's principal plant or facility in the
United States. The number of persons to be received for such education and
training sessions shall not exceed two (2) at any one time, and the number
and frequency of such sessions shall be determined by Ramtron in good
faith based upon its experience in such matters. Such Licensee personnel
shall not at any time be considered to be Ramtron's employees and the
salaries, employee benefits, travelling and living costs and expenses and
all other costs of the attendees of such training sessions shall be borne
by and shall be the sole responsibility of Licensee. In the event that any
employee of Licensee shall be assigned to Ramtron's
premises or any employee of Ramtron shall be assigned to Licensee's
premises under this Section 3.2, the sending party shall be responsible for
any and all liability of any type whatever to any other person, firm or
entity arising from any direct or indirect action or inaction relating to
the carrying out of his/her duties under the terms of the assignment. The
sending party shall cause such employees to be covered by its liability
insurance policy or policies. Whether or not any action or inaction of any
such employee is covered by insurance, the sending party shall hold
harmless and indemnify the other party against and from all losses, claims,
damages, liabilities, obligations or expenses (including attorneys' fees,
court costs and costs of investigation) incurred by the receiving party or
to which it may become subject as a result of any action or inaction
relating to the carrying out of the said employee's duties while assigned
to the receiving party.
3.3 Scheduling. All services of the parties to be provided pursuant to this
Article III shall be scheduled and conducted so as not to interfere
unreasonably with the normal course of their businesses. In determining and
carrying out such activities, the parties shall act towards each other in
commercial good faith, with a view toward minimizing the respective cost to
each party of carrying out such activities. The parties acknowledge that
the costs incurred by Ramtron in furtherance of its obligations under this
Article III are anticipated to be incidental in nature and amount.
3.4 Supply of Information. From time to time during the period commencing from
the date of this Agreement through June 30 1996, Licensee may request in
writing that Ramtron provide to Licensee specific information developed by
Ramtron or any Affiliate in relation to the Ferroelectric Technology and
relevant to the design, manufacture, sale, lease and distribution of
Ferroelectric RF/ID Products. Each such written request by Licensee shall
specify in detail the particular information that is sought. If Licensee
does not itself have sufficient knowledge to specify in detail the
particular information that is sought, Licensee shall be entitled to
request information of a particular description. Ramtron shall consider
each such request and if Ramtron determines, in its reasonable discretion,
that the requested information is (i) sufficiently developed toward
commercial use or application and (ii) relevant to the design, manufacture,
sale, lease and distribution of the Ferroelectric RF/ID Products; and (iii)
able to be provided to Licensee by Ramtron or such Affiliate in the
ordinary course of business, then Ramtron shall provide such information
to Licensee within forty-five (45) days after Ramtron's receipt of the
specific request therefor. Any such information that is provided by
Ramtron to Licensee shall be deemed to be licensed by the Technology
License. All such information furnished by Ramtron or any Affiliate to
Licensee pursuant to this Section 3.4 shall remain confidential to Ramtron
and such Affiliate. Ramtron and such Affiliate shall retain for itself and
for the benefit of all other Affiliates the right to utilize or furnish to
others such information in any way whatsoever, subject to the terms of this
Agreement.
ARTICLE IV Nontransferability, of Technology License.
4.l Nontransferability. Except as provided in Sections 4.2 and 4.4, the
Technology License may not be assigned, sublicensed, subdivided or
transferred in any way whatsoever by Licensee without Ramtron's prior
written consent, such consent to be within Ramtron's sole discretion.
Notwithstanding the preceding sentence, if Licensee desires to sublicense
the Technology License to third parties (but not more than one third party
at any time) for subcontract manufacturing purposes only, Ramtron shall not
unreasonably withhold its consent provided that Licensee ensures that such
sublicense does not result in the transfer to such third parties of any
rights or information not needed by such third parties in order to perform
subcontract manufacturing for Licensee. Notwithstanding the prior
sentence, Licensee may not sublicense the Technology License for
subcontract manufacturing purposes to those entities, or parties related to
such entities or their Affiliates, identified on Attachment 1, attached
hereto and incorporated herein by this reference without Ramtron's prior
written consent, such consent to be within Ramtron's sole discretion.
4.2 Ramtron hereby consents to the grant of a sub-license of the type
contemplated by section 4.1 to AWA Microelectronics Pty Limited. In
addition, Ramtron hereby consents to the grant of a sub-license of the type
contemplated by Section 4.1 to any one of those entities, or parties
related to such entities, identified on Attachment 2, attached hereto and
incorporated herein by this reference, without Ramtron's prior written
consent provided, however, that the parties hereto acknowledge and agree
that at least thirty (30) days prior to each anniversary of the Effective
Date hereof, the parties shall revise the list set forth on Attachment 2
for the immediately following year, such that the list of parties set forth
on Attachment 2 to this Agreement shall be reviewed and revised on or prior
to each anniversary of the Effective Date of this Agreement.
4.3 Change in Control. For purposes of this Agreement and the Technology
License, any of the following events shall be deemed to be an attempted
transfer of the Technology License and shall be subject to the provisions
of this Agreement including, but not limited to, the provisions of Sections
4.4 and 8.3;
(a) A "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934) of voting shares of Licensee and is entitled
to exercise more than 25% of the total voting power of all
outstanding voting shares of Licensee (including any voting shares
that are not then outstanding of which such person or group is
deemed the beneficial owner unless such "person" or "group' was
entitled to exercise more than 25% of such total voting power as of
the Effective Date; or
(b) Any consolidation of Licensee with, or merger of Licensee into, any
other entity, any merger of another entity into Licensee, or any sale
or transfer of all or substantially all of the assets of Licensee to
another entity (other than a merger which does not result in any
reclassification conversion, exchange or cancellation of outstanding
shares of Licensee or a merger which is effected solely to change the
jurisdiction of incorporation of Licensee).
This Section shall not apply to any shares issued by Licensee in accordance
with the provisions of the Shareholders Agreement a copy of which is
Exhibit "C" to the Option Agreement between the parties.
4.4 Transfer by Change in Control. Licensee may not transfer the Technology
License by any of the events described in Section 4.3 without Ramtron's
prior written consent, such consent not to be unreasonably withheld,
notwithstanding the prior sentence, Licensee may not transfer the
Technology License so those entities, or parties related to such entities,
identified in Attachment 1 without Ramtron's prior written consent, such
consent to be within Ramtron's sole discretion.
ARTICLE V Disclaimers of Warranty and Limitations of Liability.
5.1 Reliance on Disclaimers and Limitations. The license fees for the
Technology License, and the substance of the other rights and duties of
Licensee and Ramtron in this Agreement, have been negotiated in reliance
on, and are based upon the applicability and enforceability of, the
disclaimers, warranties and limitations of liability contained in this
Article V.
5.2 DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED IN THIS ARTICLE V,
RAMTRON MAKES NO WARRANTIES TO LICENSEE OR TO ANY OTHER PARTY BY VIRTUE OF
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREUNDER, AND RAMTRON
EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR ARISING BY
USAGE OF TRADE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, AND LICENSEE UNCONDITIONALLY ACCEPTS
SUCH DISCLAIMER LICENSEE SHALL NOT MAKE OR PASS ON TO ITS CUSTOMERS
(WHOLESALE OR RETAIL) OR SUBLICENSEES ANY WARRANTY OR REPRESENTATION ON
BEHALF OF PAYMENT.
5.3 Limitation of Liability for Termination. Notwithstanding anything
contained in this Agreement or under applicable law to the contrary, in no
event shall Ramtron be liable for any indirect, special, incidental or
consequential damages, including, without limitation, loss of business,
income or profits, resulting from Ramtron's termination of this Agreement,
whether or not Ramtron has been advised of the possibility, of such damages
arising in any way out of the termination of this Agreement. Without
limiting the generality of the foregoing, Licensee assumes all risks
arising out of or relating to its inability to meet any commitments made to
and/or perform any agreements entered into with any customer (wholesale or
retail) of Licensee in the event of any termination
by Ramtron of this Agreement. Provided, however, that nothing contained in
this Section 5.3 is intended to disclaim or waive any rights that Licensee
may have against Ramtron with respect to actual and direct damages suffered
by Licensee as a result of the breach of this Agreement or the wrongful
termination of this Agreement by Ramtron and provided further that nothing
contained in this Section 5.3 shall prejudice or restrict Licensee's right
and entitlement to also terminate this Agreement in the event of any breach
of this Agreement by Ramtron.
ARTICLE VI Protection of the Ferroelectric Technology.
6.1 Patents, Copyrights and Intellectual Property. Ramtron shall at its own
cost obtain such patent, copyright or similar registration or intellectual
property protection of the Ferroelectric Technology throughout the world as
is reasonable having regard to: the relative cost thereof; the benefit of
the protection obtained; and all other relevant circumstances. Upon
request by Licensee, Ramtron shall provide Licensee a list of all issued
patents pertaining to the Ferroelectric Technology.
6.2 Patent and Other Applications. From time to time during the term of this
Agreement, but no less frequently than once each calendar quarter, Ramtron
shall provide to Licensee, insofar as Ramtron lawfully may, a general
description of each application for any patent copyright, utility, model,
design, circuit layout or semiconductor chip protection filed by Ramtron or
any Affiliate anywhere in the world during the immediately preceding
calendar quarter on any invention, work, design, circuit layout or mask or
other aspect of the Ferroelectric Technology relating to the design or
manufacture of Ferroelectric RF/ID Products and licensed under this
Agreement. Licensee may, within sixty (60) days of receipt of such
information from Ramtron, request in writing that Ramtron or such Affiliate
allow an officer or employee of Licensee to visit the premises of Ramtron
or such Affiliate for the purpose of reviewing a copy of any such
application that Licensee designates in such notice. Thereafter, Ramtron
or its Affiliate shall allow such officer or employee of Licensee access to
the facilities of Ramtron or such Affiliate at reasonable times and upon
reasonable notice for the sole purpose of reviewing a copy of any such
application; provided, however, that the officer or employee of Licensee
shall not be permitted to make or take copies of all or any portion of such
application without the express written consent of Ramtron or such
Affiliate. If, after any such review by Licensee, Licensee determines that
the invention disclosed by any such application may or would be useful to
Licensee in connection with the manufacture and sale of Ferroelectric RF/ID
Products, then Licensee may, within sixty (60) days after its review of any
such application, request in writing that Ramtron or its Affiliate file a
corresponding application in any country in which Licensee exercises or
intends to exercise any of the rights granted herein or in which such
application or an analogous application is fileable. Ramtron shall, or
procure that such Affiliate shall, insofar as it lawfully may, comply with
any such request; provided,
however, that if Ramtron, in its reasonable discretion, determines that any
such filing may impair or affect any pending applications filed by Ramtron
or any Affiliate with respect to a particular invention, or may impair or
affect the ability of Ramtron or such Affiliate to file any additional
applications or registrations in any other jurisdiction in the future,
then Ramtron and such Affiliate shall not be required to comply with any
such request.
If Ramtron or any Affiliate does file a companion application in any
jurisdiction at the request of Licensee, then Licensee shall bear the full
costs (including government fees, taxes, charges and the like and
associated charges for attorneys' services) for such application and the
issuance and maintenance of any resulting registration. Any application so
filed at Licensee's expense, as well as any other registrations relating to
the Ferroelectric Technology relevant to the manufacture of Ferroelectric
RF/ID Products applied for or taken out by Ramtron or any Affiliate shall
be included in the Technology License granted in Article 2.1 hereof. If
Licensee fails to pay any costs payable by it hereunder when due, such
failure shall constitute a breach of and default under this License,
subject to the terms and provisions of Section 8.2 hereof.
6.3 Notice of Infringement. Each of Ramtron and Licensee shall promptly
advise the other in writing of any claim, action, lawsuit, or
proceeding threatened, made, or brought against them or either them for
infringement of a patent issued to a third party, or for violation of a
third party's patent trade secret, or other intellectual property right
based in any instance upon Licensee's use of the Technology License, or
Licensee's sale, lease, or distribution of Ferroelectric RF/ID Products
or based in any instance upon Ramtron or any of Ramtron's licensees or
Affiliates of which Ramtron knows, use of the Ferroelectric Technology
as the case may be.
6.4 Infringement by Ferroelectric Technology. In the event that the
Ferroelectric Technology is, or in the reasonable judgement of Ramtron, is
likely to become the subject of any legal action based in whole or in part
on a claim that the Ferroelectric Technology infringes the proprietary
rights of any person, Ramtron may reasonably demand that Licensee cease to
use the Technology License and that Licensee cease to sell, lease and
distribute Ferroelectric RF/ID Products utilizing the allegedly infringing
Ferroelectric Technology until and unless there is a final judgement or
other final resolution establishing Ramtron's right to continue licensing
the Ferroelectric Technology. In the event that Licensee fails to cease
to use the Technology License or fails to cease selling, leasing and
distributing Ferroelectric RF/ID Products utilizing the allegedly
infringing Ferroelectric Technology promptly upon such demand by Ramtron,
Licensee shall indemnify and hold Ramtron harmless against any and all
costs and expenses ( including reasonable attorneys' fees) paid or
payable by Ramtron as a result of Licensee's failure to promptly cease
such activities. Notwithstanding anything else contained herein to the
contrary, the
failure by Licensee to cease use of the Technology License and the selling,
leasing and distributing of Ferroelectric RF/ID Products shall not
constitute a breach of or default under this Agreement. However, in the
event of any such failure by Licensee, Ramtron shall be entitled to require
Licensee to provide, and Licensee shall provide to Ramtron, reasonable
security for Licensee's indemnification obligation to Ramtron as a result
of Licensee's continued use of the Technology License and/or manufacture,
lease or sale of the Ferroelectric RF/ID Products. Ramtron shall have
control of the defense of such claim, action, lawsuit, or proceeding, and
shall pay the costs thereof (except any cost of the Licensee's associated
attorneys, if any); and Licensee shall assist Ramtron, at Ramtron's cost
and expense, in the defense of any such claim, action, lawsuit, or
proceeding. Licensee shall have the right to be represented by an attorney
at its own expense in any such controversy.
6.5 Indemnification by Ramtron. Ramtron shall, at its own expense,
indemnify, defend, and hold harmless Licensee from and against any cost,
liability, loss, or expense arising from any actual or alleged
infringement by Licensee or any patent, trademark, copyright, or other
intellectual property right of any third party provided that: (i) such
alleged infringement is attributable solely to the Ferroelectric
Technology and does not arise from the use of such Ferroelectric
Technology as a part of or in combination with any other devices or
parts; (ii) such alleged infringement does not arise from any portion or
aspect of a Ferroelectric RF/ID Product that was designed or specified
by Licensee or any consultant to or representative of Licensee (other
than Ramtron); (iii) Licensee gives Ramtron immediate notice in writing
of any such suit and permits Ramtron, through counsel of its choice, to
answer the charge of infringement and defend such suit; (iv) such cost,
liability, loss, or expense does not result from Licensee's failure to
promptly cease use of the Ferroelectric Technology and sale, lease, and
distribution of Ferroelectric RF/ID Products after notification by
Ramtron in accordance with Section 6.4 above; and (v) Licensee gives
Ramtron all the needed information, assistance, and authority, at
Ramtron's expense, to enable Ramtron to defend such suit.
Notwithstanding anything else contained in this Section 6.5 or elsewhere
this Agreement to the contrary, in no event shall Ramtron's total
payments in respect of liability to Licensee hereunder, whether or not
the result of more than one actual or alleged infringement, exceed the
aggregate amounts paid by Licensee to Ramtron pursuant to Section 2.3
hereof, provided, however that if the aggregate amount of such cost,
liability, loss, or expense incurred by Licensee exceeds the aggregate
amounts paid by Licensee to Ramtron pursuant to Section 2.3 hereof, then
the Licensee shall be entitled to offset any such excess against
subsequent amounts owed or owing by Licensee to Ramtron pursuant to
Section 2.3 hereof. THIS SECTION 6.5 STATES RAMTRON'S TOTAL LIABILITY
AND RESPONSIBILITY, AND LICENSEE'S SOLE REMEDY FOR ANY ACTUAL OR ALLEGED
INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, OR OTHER INTELLECTUAL
PROPERTY RIGHT BY THE FERROELECTRIC TECHNOLOGY LICENSED HEREUNDER, OR
ANY PART THEREOF. THIS SECTION 6.5 IS IN
LIEU OF AND REPLACES ANY OTHER EXPRESSED, IMPLIED, OR STATUTORY WARRANTY
AGAINST INFRINGEMENT. IN NO EVENT SHALL RAMTRON BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY
SUCH INFRINGEMENT.
6.6 Indemnification by Licensee. Licensee shall, at its own expense,
indemnify, defend, and hold harmless Ramtron from and against any cost,
liability, loss, or expense arising from any actual or alleged infringement
by Licensee, or any Affiliate, of any patent, trademark, copyright, or
other intellectual property right of any third party, provided that: (i)
such alleged infringement is not attributable solely to the Ferroelectric
Technology; (ii) Ramtron gives Licensee immediate notice in writing of any
such suit and permits Licensee, through counsel of its choice, to answer
the charge of infringement and defend such suit; and (iii) Ramtron gives
Licensee all the needed information, assistance, and authority, at
Licensee's expense, to enable Licensee to defend such suit. In the case of
a final award of damages in any such suit, Licensee shall pay such award
but shall not be responsible for any settlement made without its prior
written consent. THIS SECTION 6.6 STATES LICENSEE'S TOTAL LIABILITY AND
RESPONSIBILITY, AND RAMTRON'S SOLE REMEDY (EXCEPT TO THE EXTENT SET FORTH
IN SECTION 6.4 HEREOF), FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OR ANY
PATENT, TRADEMARK, COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE
FERROELECTRIC RF/ID PRODUCTS, OR ANY PART THEREOF. THIS SECTION 6.6 IS IN
LIEU OF AND ANY REPLACES ANY OTHER EXPRESSED, IMPLIED, OR STATUTORY
WARRANTY AGAINST INFRINGEMENT, EXCEPT AS SET FORTH IN SECTION 6.4 HEREOF.
IN NO EVENT SHALL LICENSEE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT.
6.7 Infringement by Third Party. Upon becoming aware of any material
infringement by a third party or any of the rights covered by this
Agreement, each party shall promptly notify the other party of such
infringement. After receipt of notice of such infringement, Ramtron
shall have the right, in its sole discretion, either to (i) assert a
claim, action, lawsuit or legal proceeding on its own behalf and/or on
behalf of Licensee in which Ramtron shall be entitled to all awards and
recoveries resulting directly from, and shall be responsible for any and
all costs and expenses arising out of, such claim, action, lawsuit or
proceeding or (ii) determine not to assert any claim, lawsuit, legal
proceeding or action of any kind against the alleged infringer. In the
event that Ramtron elects not to assert any claim, lawsuit, legal
proceeding or action of any kind against the alleged infringer, then
Ramtron shall, if requested by Licensee in writing, permit and authorize
Licensee to assert a claim, action, lawsuit or legal proceeding against
the alleged infringer, in which case, Licensee shall be entitled to any
and all awards and recoveries resulting directly from, and shall be
responsible for any and all costs and expenses arising out of, such
claim, action, lawsuit or legal proceeding; provided, however, that in
such event, if at any time after Licensee has commenced any claim, action,
lawsuit or legal proceeding against the alleged infringer, Ramtron elects
to join in such proceeding, then Licensee
shall take all actions necessary to allow Ramtron to formally join
in such proceeding and, thereafter, Ramtron shall have the right
to participate in and direct and control any such action or
proceeding, and Ramtron shall be responsible for any and all
further costs and expenses arising after the commencement of
Ramtron's participation in any such claim, action, lawsuit or legal
proceeding; provided further that notwithstanding any intervention
by Ramtron in any such proceeding, Licensee shall be entitled to
any and all awards and recoveries resulting directly from such
proceeding, after reimbursing Ramtron for all actual
out-of-pocket costs and expenses incurred by Ramtron in connection
with such proceeding. Notwithstanding the foregoing, Licensee
shall be entitled to commence and join in any proceedings to
recover any losses or damage suffered by Licensee on its own
account, provided Licensee shall bear all the costs and expenses of
so doing.
ARTICLE VII Confidentiality.
7.1 Confidentiality. The parties agree with each other to keep
strictly confidential and not without the prior written consent of
the other parties to disclose to any person or entity any
information whatever which is part of or which relates to the
Ferroelectric Technology, Ferroelectric RF/ID Products or Ramtron
FRAM Products, and each party further agrees to bind in a manner so
as to be legally enforceable, its employees, agents, consultants,
advisors and representatives to such confidentiality, including
without limitation as to such disclosures as may be necessary for
the parties performance of their obligations and enjoyment of their
rights under this Agreement, and otherwise as the relevant other
party may consent to in writing.
7.2 Marking of Documents and Materials. In furtherance, but not in
limitation, of the provisions of Section 7.1, each party shall
use its reasonable endeavors to cause all written materials and
other physical documents and materials of all types relating to or
containing information of or about the Ferroelectric Technology,
Ferroelectric RF/ID Products or Ramtron FRAM Products to be plainly
marked to indicate the secret, proprietary and confidential nature
thereof and to prevent the unauthorized use or reproduction
thereof, directly or indirectly.
7.3 Indemnification. Without limitations of any other right,
remedy or benefit accruing to either party under this Agreement or
by law, each party shall indemnify the other party fully for all
damages caused by any unauthorized disclosure or use of any
information intended to be kept secret confidential and
proprietary in accordance with this Article VII by such party or
its representatives, employees, agents, consultants, sublicensees,
etc.
7.4 Survival. This Article VII shall survive the expiration or
earlier termination of this Agreement and of the Technology License
and shall remain in effect for so long as the Ferroelectric
Technology is being used or Ramtron FRAM Products are being
manufactured, anywhere in the world.
7.5 Public Domain. The provisions of this Article VII shall not
apply to any information that the party can demonstrate by written
evidence was in the public domain through no unlawful action or
omission by such party or obtained from third parties not bound by
law or confidentiality agreements to maintain the confidentiality
thereof.
7.6 Obligations to Disclose. This Article VII shall not prohibit
the parties from disclosing under legally enforceable obligations
any information required to be disclosed to any governmental
authorities and shall not prohibit the parties from disclosing
general financial and technical information in order to obtain
funding or other financial advantages from any authority or
institution or corporation or for the relevant party to exercise
its rights and perform its obligations in respect of the Technology
License or to otherwise carry on its business in the ordinary
course. Nothing contained in this section shall entitle Licensee
to transfer or assign the Ferroelectric Technology or the
Technology License.
7.7 Trademark. Licensee shall have right to utilize Ramtron's
FRAM trademark. Ramtron makes no representation, warranty or
covenant of any type whatsoever regarding such trademark.
ARTICLE VIII Terms and Termination.
8.1 Expiration. This Agreement and the Technology License shall
remain in full force and effect from the Effective Date until
termination under this Article VIII. Unless terminated earlier,
this Agreement and the Technology License shall terminate on the
date of the expiration of the last to expire of any effective
rights protecting the material part of the Ferroelectric Technology
as it relates to the Ferroelectric RF/ID Products anywhere in the
United States, Canada, the countries of the European Economic
Community, Japan, South Korea, Taiwan, China, Hong Kong, Singapore,
Australia and New Zealand whether by applicable law of patents,
trade secrets or other equivalent applicable legal protection of
proprietary business know-how and technology.
8.2 Termination for Breach. In the event of a material breach or
default by a party in the performance of its respective duties,
obligations or undertakings set forth in this Agreement, the other
party shall have the right to give written notice to the defaulting
party, notifying such party of the specific breach or default
involved and, if within ninety (90) days after such notice the
defaulting party shall not have remedied or commenced diligently to
remedy the breach or default and thereafter prosecute such remedy
to completion within a commercially reasonable time, the aggrieved
party shall have the right in addition to any other right, remedy
or benefit it may have under this Agreement or applicable law, to
terminate this Agreement and the Technology License upon five (5)
days written notice to the defaulting party and effective upon the
fifth (5th) day after the giving of such termination notice, this
Agreement and the Technology License shall be terminated without
any further act or writing whatever.
8.3 Termination By Ramtron. Notwithstanding any other provision of
this Agreement and in addition to any other right, remedy or
benefit Ramtron may have under this Agreement or applicable law,
Ramtron shall have the unconditional right to terminate this
Agreement and the Technology License effective immediately, if:
(a) Licensee fails or refuses to: (i) pay to Ramtron on the date
due any payment provided to be made to Ramtron in accordance with
Sections 2.2.1(a) or 2.2.1(b); or (ii) issue shares to Ramtron in
accordance with Section 2.2.2; or (iii) pay to Ramtron within
thirty (30) days of written demand after the due date thereof for
any royalties due hereunder provided, however, nothing in this
subparagraph shall be construed to relieve Licensee of its
liability to pay to Ramtron the Initial License Fee or Additional
License Fee if such is due and payable and royalties on all
Ferroelectric RF/ID Products Manufactured By Licensee and sold,
leased or otherwise transferred by Licensee prior to or after
the date of such termination in accordance with this Agreement.
(b) At any time Licensee is adjudged by a court of law to be
bankrupt or insolvent, or files petition in bankruptcy or an answer
admitting the material facts recited in such petition if filed by
another, or is put or decides to go into dissolution or
liquidation, or otherwise discontinues its business, makes an
assignment for the benefit of its creditors or enters into any
other general arrangement with its creditors, becomes insolvent, or
has a trustee, receiver or custodian of any kind appointed to
administer any substantial amount of its property, or is placed or
enters into any comparable situation under the laws of any other
nation, or any state or province in which its operations may be
conducted, or otherwise seeks to take advantage any bankruptcy or
insolvency statute now or hereafter in effect in any such location;
or
(c) Licensee purports to assign, subdivide, sublicense or transfer
in any way whatsoever the Technology License in contravention of
the provisions of this Agreement.
(d) Licensee uses or attempts to use the Technology License in the
manufacture, sale, lease, distribution or transfer of any type
whatsoever of a product or application which does not involve a
Ferroelectric RF/ID Product.
8-4 Termination By Licensee. Notwithstanding any other provision
of this Agreement and in addition to any other right, remedy or
benefit Licensee may have under this Agreement or applicable law,
Licensee shall have the right and option in its sole discretion to
terminate this Agreement and Technology License without payment of
any penalty and without incurring any obligation to pay royalties
after the effective date of such termination if, with respect of
Ferroelectric RF/ID Products or the Ferroelectric Technology, any
order is made or given in any proceedings which are commenced
against Licensee or Ramtron having the effect of restraining or
impairing the exercise of the Technology License or any of the
Licensee's material rights under this Agreement.
8.5 Effects of Termination. Upon termination of this Agreement and
the Technology License for whatever reason:
(a) The rights under the Technology License and all intellectual
property and other rights granted to Licensee under this Agreement
shall immediately revert to, and vest in, Ramtron and absolutely no
interest whatever in any of such rights, in whole or in part shall
thereafter remain in Licensee or any of its subcontractors, agents,
employees or shareholders, or any person or entity in any way
affiliated with, or related to, Licensee. Accordingly, from the
date of said termination such rights, and any of them, may not, and
they shall not, be exercised in any way, in whole or in part, by
Licensee or any person or entity with whom Licensee shall have
entered into any agreement or understanding relating in any way to
the Technology License or any of the rights granted to Licensee
under this Agreement whether or not such agreement or understanding
shall have been approved by Ramtron unless Licensee has lawfully
acquired or is lawfully able to use such rights.
(b) Except and to the extent that Licensee has lawfully acquired
or is lawfully able to exercise such rights, Licensee shall
cease forthwith the manufacture, sale and distribution of the
Ferroelectric RF/ID Products under the Technology License and not
use further, except as herein provided, and return to Ramtron
specifications, data sheets, drawings, designs, photographs,
photostats, negatives, undeveloped film, tape recordings and other
electronic records, writing in any language and any other documents
or materials furnished to Licensee or otherwise obtained by
Licensee from Ramtron, including without limitation any and all
notes and written or electronic transcriptions on any part of the
Ferroelectric Technology and any and all similar materials in any
way, in whole or in part, based thereof, as well as any and all
similar materials which in any way contain, reflect or relate to
any of the Ferroelectric Technology.
(c) Licensee shall offer in writing to Ramtron the right to
purchase any or all Ferroelectric RF/ID Products which are unsold
at the time of such termination. The price for such goods to
Ramtron shall not be less favorable than the price offered to third
parties. If Ramtron does not accept any such offer within seven
(7) days following receipt then it shall be deemed to have declined
same.
8.6 Sale of Stock. Notwithstanding the provisions of Section 8.5,
after termination of this Agreement and the Technology License,
Licensee shall be entitled to sell existing units of Ferroelectric
FF/ID Products which are in Licensee's stock on the date of such
termination, if any, but only to existing customers of Licensee as
of the date of termination. Royalties shall be payable on any such
sales in accordance with Article II of this Agreement.
8.7 Survival. Articles V, VI, VII, X and sections 8.5, 8.6, 12.3,
12.5 and 12.10 of this Agreement shall permanently survive any
termination or expiration of this Agreement.
ARTICLE IX Governmental Requirements.
9.1 Compliance With Laws. In performing their respective duties
hereunder and in carrying out their activities under the Technology
License, the parties shall comply with all applicable laws,
regulations procedures, ordinances and rulings of any governmental
authority having jurisdiction over Licensee Ramtron, Licensee's use
of the Technology Licensee or Licensee's design, manufacture, use,
sale, lease or distribution of Ferroelectric RF/ID Products.
9.2 Exports. Without limitation of any other provision of this
Agreement, Licensee shall not, without receiving the prior
authorization of the United States Office of Export Administration
or other appropriate governing body exercising controls over
exports and re-exports of United States goods and technical data,
export or re-export directly or indirectly any technical data
included in Ferroelectric RF/ID products or the Ferroelectric
Technology to any country or area forbidden to such exports under
United States law or regulation.
9.3 Governmental Approvals. Licensee shall use its best efforts,
with the cooperation of Ramtron, to obtain any necessary approval
of this Agreement by any governmental authorities having
jurisdiction over Licensee's activities pursuant to this Agreement
and to obtain the consent of any governmental to the remittance of
payments under this Agreement in accordance with its terms, in the
event that any such consent should become necessary.
ARTICLE X Payments and Taxes.
10.1 Payments. Any and all payments of every kind which may be
payable by Licensee under the terms of this Agreement shall be paid
in immediately available funds in United States dollars to Ramtron or
at such bank as Ramtron may from time to time designate in writing
to Licensee.
10.2 Taxes. Any and all taxes (including withholding taxes payable
in correction with Sections 2.2 or 2.3 to any country other than
the United States), duties, excises and imposts (other than income
or profits taxes, except for withholding taxes, assessed or imposed
directly an Ramtron alone and based solely on Ramtron's income)
payable with respect to any sums due under this Agreement to
Ramtron shall be borne and discharged by Licensee and no part
thereof shall be deducted from the amounts otherwise payable under
any provision of this Agreement, all of said amounts to be net,
free and clear of any and all deductions under any and all
conditions whatever.
ARTICLE XI Assignment By Ramtron.
11.1 Assignment by Ramtron Licensee hereby consents to an
assignment by Ramtron to RIC of this Agreement and Ramtron's rights
and obligations arising hereunder, provided that RIC agrees to be
bound by all of the terms of this Agreement and the Ferroelectric
Technology has been assigned to RIC.
ARTICLE: XII Miscellaneous.
12.1 Successors and Assigns and Binding Effect. The rights and
benefits of the parties under this Agreement shall accrue to, and
run in favor of, each party's successors and assigns. The rights
and obligations of the parties under this Agreement shall be
binding upon their respective successors and assigns.
12.2 Assignments. Except as provided in Articles IV and XI and
notwithstanding the provisions of Section 12.1, no Party shall make
or purport to make any assignment, transfer or conveyance, in whole
or in part, of its rights and obligations under this Agreement
without the prior written consent of the other party such consent to
be within the other party's sole discretion.
12.3 Governing Law. This Agreement shall take effect under, be
construed and enforced according to, and be governed by the laws
in force in the State of Colorado, USA, without reference to
conflict of laws principles, and subject to section 12.10, the
parties irrevocably submit to the personal and exclusive
jurisdiction and venue of the Colorado state courts of El Paso
County.
12.4 Severability. The provisions of this Agreement are
severable. If any provision or part of this Agreement shall be
held by any court or other official body of competent jurisdiction
to be invalid of unenforceable for any reason, the remaining
provision or parts hereof shall continue to be given effect and
shall bind the parties hereto unless the unenforceability or
illegality has the consequences of substantially altering the
respective rights and obligations of the parties hereto.
12.5 No Partnership or Other Relationship Created. The parties are
not, nor shall any party hold itself out to be, the partner, agent,
joint venturer, employee or independent contractor of the other for
and purpose whatever, nor shall any legal or fiduciary relationship
between them, other than as may be explicitly provided in this
Agreement, exist by virtue of this Agreement. No party shall be or
become liable for any representation, act or omission of the other
as a consequence of this Agreement and no party is authorized to
create any such liability on behalf of the other. This Agreement is
not for the benefit of any third party and shall not of itself be
deemed to give any right or remedy to any third party for any
purpose whatever.
12.6 Waivers. Any waiver exercised under any provision of this
Agreement shall not be deemed a general waiver with respect to any
other provision of this Agreement, and no failure to exercise and
no delay in exercising, any right, power or privilege hereunder
shall operate as a waiver thereof, except where specified to the
contrary herein, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further
exercise thereof or of any other right, power or privilege. The
rights and remedies provided herein are, and shall be interpreted
to be, cumulative and not exclusive of any other rights provided
by law or otherwise.
12.7 Notices. All notices permitted or required to be given to the
parties of this Agreement shall be in writing and delivered
personally or sent by certified or registered airmail (return,
receipt required, postage prepaid), by air freight (return
requested), or by telefax or telex (with receipt acknowledgement
requested) addressed to the respective parties at its usual and
principal place of business. Such notices shall be deemed to have
been effectively given and received on the day of delivery if
delivered personally, or, if by telegram, telecopy, telex, or air
freight, on the next day following the sending of such notice by
telegram, telecopy, telex, or air freight provided this receipt
shall have been acknowledged, and of mailed, on the seventh (7th)
business day following such mailing.
12.8 Entire Agreement. This Agreement contains the entire and
only agreement of licensee and Ramtron with respect to the
Technology License and supersedes entirely any and all other
agreements either oral or written between the parties with respect
thereto, and each of Licensee and Ramtron acknowledge that it has
no claims against the other under or arising from any prior
understanding or document. No agreement, statement or promise
relating to the subject matter of this Agreement which is not
contained herein shall be valid or binding.
12.9 Changes or Amendment. Any change, revision, termination or
attempted waiver of any of the provisions contained in this
Agreement shall not be binding unless in writing and signed by the
part against whom the same is sought to be enforced. This Section
may only be waived in writing. This Agreement shall be amended or
supplemented only by written instrument duly executed by or on
behalf of the parties hereto, and if and when so supplemented or
amended shall include all such supplements and any amendments.
12.10 Arbitration. Any dispute or claim arising out of or in
connection with this Agreement will be finally settled by binding
arbitration in Colorado Springs, Colorado under the Rules of
Arbitration of the International Chamber of Commerce by one
arbitrator appointed in accordance with those rules. The arbitrator
will apply Colorado law to the merits of any dispute or claim,
without reference to conflict of law principles. The arbitration
and all pleadings and written evidence shall be in the English
language. Judgement on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. Notwithstanding
the foregoing, the parties may apply to any court of competent
jurisdiction for temporary or preliminary injunctive relief without
breach of this arbitration provision.
12.11 Attorney's Fees. In the event of any controversy, claim or
dispute between the parties hereto arising out of or relating to
this Agreement, including but not limited to a controversy settled
by arbitration the prevailing party shall be entitled to recover
from the losing party reasonable expenses, including attorneys'
fees and costs.
12.12 Force Majeure. If the performance by any party of any of its
obligations under this Agreement shall be in any way prevented,
interrupted, or hindered as a result of any force majeure,
including, without limitation, war, civil disturbance, strike or
other labor disturbance, lockout, legislation or restriction of any
governmental or other authority, fire, unavailability of materials
or finished goods, delay of carriers or any other similar
circumstances (other than financial difficulties) beyond the
reasonable control of such party, the obligations of the party
contested shall be wholly or partially suspended during the
continuance and to the extent of such prevention, interruption or
hinderance, provided however, that local commercial availability of
materials or finished goods shall not alone constitute force
majeure for purposes hereof if such materials or finished goods are
otherwise (even if it is at a higher cost) available. A party
unable to perform timely its obligations under this Agreement due
to any of the foregoing reasons must take all reasonable steps to
remedy its nonperformance or delay its performance with the lesser
possible delay and by doing whatever may reasonably be done to
mitigate the adverse effect of its nonperformance upon the other
party of this Agreement.
12.13 Headings. The headings of the Sections of this Agreement have
been inserted for convenience or reference only and shall in no way
affect the interpretation of any of the terms or conditions of this
Agreement.
IN WITNESS WHEREOF, the undersigned parties to this Agreement have enacted
this document as of the date and year first above written.
"RAMTRON" "LICENSEE"
RAMTRON CORPORATION RACOM SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ [illegible]
----------------------- ---------------------
Its: Xxxxxx X. Xxxxxxxxx Its: /s/ [illegible]
----------------------- ---------------------
Chief Executive Officer
0843G
ATTACHMENT I
IBM
TEXAS INSTRUMENTS
MOTOROLA
INTEL
MICRON TECHNOLOGIES
NEC CORPORATION
HITACHI CORPORATION
TOSHIBA
FUJITSU
MATSUSHITA ELECTRICAL INDUSTRIAL CO. LTD.
MITSUBISHI ELECTRIC CORPORATION
OKI SEMICONDUCTOR
SONY CORPORATION
SAMSUNG
LUCKY GOLDSTAR
DAEWOO
TAIWAN SEMICONDUCTOR
NMB SEMICONDUCTOR CO. LTD.
SIEMENS
SGS-THOMSON
PHILIPS
NATIONAL SEMICONDUCTOR
ATTACHEMENT II
To be advised.
