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EXHIBIT 10.51
LICENSE AGREEMENT
This License Agreement (hereinafter "Agreement") is entered into by and
between Cybex Computer Products Corporation ("Cybex"), an Alabama corporation
with its principal place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000, and Mobility Electronics, Inc. ("Mobility"), a Delaware
corporation with its principal place of business at 0000 X. Xxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000, effective the 6th day of March, 2000.
I.
RECITALS
1.1 Cybex owns the Cybex Technology (as herein defined), has pending
patent applications (Nos. 09-430,162 and 09-430,163) pertaining to the Cybex
Technology, and has the right to grant non-exclusive licenses thereunder.
1.2 Mobility desires to obtain from Cybex, and Cybex hereby desires to
grant to Mobility, a certain non-exclusive license under the Cybex Technology as
provided in this Agreement.
II.
DEFINITIONS
The following terms shall have meanings ascribed to them below:
2.1 "CYBEX TECHNOLOGY" shall mean all of Cybex's split computer
technology represented by United States Patent Application No. 09-430,163 for a
"split computer architecture" and United States Continuation Patent Application
No. 09-430,162, and all related intellectual property, including without
limitation software, patents, patents pending, trade secrets, ASIC chips and
related intellectual property blocks, designs, specifications, and any future
enhancements, modifications, variations thereto, and all intellectual property
associated with the adaptation of cables and connectors adapted for use with
such technology and future generations of any of the above. Cybex Technology
does not include any incorporated Mobility Technology.
2.2 "MOBILITY TECHNOLOGY" shall mean all of Mobility's Split Bridge
Technology (as hereinafter defined), including Mobility current split bridge
ASIC chip commonly known as "Merlin" and ASIC split bridge chips currently under
development by Mobility with LSI Logic or developed in the future "Mobility
Split Bridge Chips". This further includes all related intellectual property and
Mobility Split Bridge Chip intellectual property including without limitation
software, patents, patents pending (including without limitation patent
application Nos. 09-130,057 and 09-130,058), trade secrets, ASIC chips and
related IP blocks, designs, specifications, and any future enhancements,
modifications, variations thereto, and all
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intellectual property associated with the adaptation of cables and connectors
adapted for use with Mobility's Split Bridge Chips and technology and future
generations of any of the above. "Split Bridge Technology" is the technology
which allows a main computer PCI bus to be extended to a remote location by
connecting two proprietary Mobility Split Bridge Chips with a high speed cable,
and includes all of the above. Mobility Technology does not include any
incorporated Cybex Technology.
2.3 "PERMITTED APPLICATIONS" shall mean any product or device or ASIC
chip containing Cybex Technology for any application or purpose except those
applications identified in Article 3.3.
III.
GRANT OF LICENSE BY CYBEX
3.1 Subject to Mobility making the royalty payments required pursuant
to this Agreement, and during the Term, Cybex grants to Mobility, for Permitted
Applications only, a worldwide, nontransferable, and nonsublicensable right to
use, sell and otherwise incorporate Cybex Technology.
3.2 The rights granted in Section 3.1 will survive any change in
control of Cybex.
3.3 Mobility shall not have the right to use Cybex Technology in any
server or desk top computer application or product that does not incorporate
Mobility's Technology.
IV.
TITLE AND OWNERSHIP
4.1 Mobility acknowledges that Cybex owns and has all rights, title and
interest in and to all intellectual property relating to Cybex Technology
including all patents, patents pending, trade secrets, software, utility models,
trademarks, mask works, copyrights, and all related applications therefor,
including all future improvements, modifications, and enhancements made to Cybex
Technology.
4.2 If either or both parties develop new technology, products and/or
chips that include a significant amount of both Cybex Technology and Mobility
Technology for extended PCI bus systems and applications that are beyond the
capabilities of Mobility Technology, the parties agree as follows:
(a) Each party will have the right to use, sell, or otherwise market
the joint products or chips, except that Mobility will have exclusive rights in
the portable and handheld computer docking market and Cybex will have the
exclusive rights in the KVM switch market.
(b) Product or chip development cost will be funded fifty percent (50%)
by each party, or if only one party decides to fund such development, the party
that has agreed to fund development will receive 100% of royalties due the other
party until 125% of such development cost is recovered.
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(c) If the joint chips are sold by either party, the other party will
receive a royalty of 15% on the sales revenues of all such chips. Such royalty
may be adjusted from time to time by the mutual written consent of Mobility and
Cybex. Both parties will have the right to purchase and sell such chips from the
manufacturing foundry at cost.
(d) If the joint products are sold by either party, the other party
will receive a royalty of 6% on the sales revenue of all such products. Such
royalty may be adjusted from time to time by the mutual written consent of
Mobility and Cybex. Both parties will have the right to manufacture and sell
such products.
(e) Any technology contributed by a party will be owned 100% by such
contributing party, and may not be used by the non-contributing party for any
purpose other than the joint product and/or joint chip. Any new jointly
developed technology and any associated patents and patent rights will be
jointly owned by the parties, but also may not be used for any purpose other
than the joint product and/or joint chip as provided above without the other
party's consent.
4.3 Pursuant to the terms of this agreement, Cybex agrees to make
available to Mobility, to the extent it has the right to do so, all future
enhancements, variations, modifications, and future generations of Cybex
Technology at a royalty rate defined below.
V.
ROYALTIES AND LINK PURCHASES
During the Term, Mobility shall pay to Cybex royalties as follows:
5.1 On all sales by Mobility of any product incorporating any Cybex
Technology, 6% of Mobility's sale price of such product. This royalty will not
apply to any products sold by Mobility which are purchased from Cybex or its
affiliates for resale.
5.2 Subject to availability (it being acknowledged and agreed that
Mobility shall be treated at least similar to Cybex's other customers), Cybex
and its affiliates shall offer for sale to Mobility any of their products that
incorporate Cybex Technology or Mobility Technology. The price of such product
sales to Mobility will be at a rate no greater than the lowest rate offered to
any third party independent of Cybex or its affiliates that purchases the same
product at comparable volumes. Moreover, Cybex and its affiliates agree to
provide Mobility an appropriate discount on the pricing for the applicable
products if the applicable Cybex or affiliate product incorporates a material
amount of Mobility Technology at terms to be mutually agreed upon in writing.
5.3 Royalties due under Paragraph 5.1 shall be paid quarterly within 30
days of the end of each quarter. Payments shall be made by wire transfer to an
account specified in writing at least 30 days prior to the date a royalty
payment is due. Within 30 days after the end of each quarter, Mobility shall
furnish to Cybex a report providing the number and types of Cybex Technology
sold, the applicable royalty rate, and the total royalty paid.
5.4 Mobility agrees to make and maintain such books, records and
accounts as are reasonably necessary to verify the royalty payments due Cybex
under this Agreement. An independent certified public accountant, selected by
Cybex, who agrees to sign a nondisclosure agreement may, upon reasonable notice
and during normal business hours, but no more often
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than twice each year, audit and inspect those records of Mobility which are
necessary to determine the accuracy of the royalty payments made to Cybex. In
the event that the independent audit reveals that the royalties owed by Mobility
for any given quarter are more than 5% greater than the royalties actually paid
by Mobility for that quarter, then in addition to remitting all outstanding
royalties shown to be due under the audit, all expenses incurred by Cybex in
conducting the audit shall be paid by Mobility within 30 days of receiving the
auditor's report; otherwise, all expenses incurred by Cybex in conducting the
audit shall be borne by Cybex.
VI.
COVENANTS
6.1 Cybex hereby covenants not to utilize Cybex Technology, Mobility
Technology or any technology jointly developed by Mobility and Cybex in any
docking station product, application, or purpose for portable or handheld
computers.
VII.
TERM AND TERMINATION
7.1 The Term of this agreement is perpetual and can only be terminated
upon the written consent of both Cybex and Mobility or as provided in Section
7.2.
7.2 Either Party shall have the right to terminate this Agreement upon
a material default by the other Party of any of its obligations hereunder, if
such default has not been cured within sixty (60) days after receipt of written
notice from the other Party of the alleged default. For purposes of this
Agreement, a material default includes, but is not limited to, the failure of
Mobility to pay any royalties when due and/ or the use of Cybex Technology
except as permitted in this Agreement.
VIII.
REPRESENTATIONS AND WARRANTIES
8.1 REPRESENTATIONS AND WARRANTIES OF CYBEX. Cybex hereby represents,
warrants and covenants to Mobility that as of the execution date of this
Agreement:
(a) Cybex is a corporation duly organized, validly existing and in good
standing under the laws of the State of Alabama, with full power to carry on its
business and activities as now being conducted;
(b) This Agreement has been duly authorized, executed and delivered by
Cybex. Cybex has the corporate power and authority to enter into this Agreement
and to perform its obligations hereunder. No other act, approval or proceeding
on the part of Cybex is or will be required to authorize the execution and
delivery of this Agreement, or the consummation of the transactions contemplated
hereby; and
(c) The execution and delivery by Cybex of this Agreement will not, and
the fulfillment of and compliance by Cybex with the terms, conditions and
provisions hereof will
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not, (i) conflict with any of the terms, conditions or provisions of the
articles of incorporation or by-laws of Cybex, (ii) violate any term, condition
or provision of, or require any consent, authorization or approval under, any
judicial or arbitration judgment, order, award, writ, injunction or decree
applicable to Cybex, or (iii) conflict with, result in a breach of, constitute a
default under (whether with or without the giving of notice or the lapse of time
or both), or accelerate or permit the acceleration of the performance required
by, or require any consent, authorization or approval under any document,
instrument, agreement or license to which Cybex or a person under its control is
a party or is bound or to which any of the assets or properties of Cybex or such
person are subject, other than as set forth on Exhibit A attached hereto.
8.2 REPRESENTATIONS AND WARRANTIES OF MOBILITY.
(a) Mobility is a corporation duly organized, validly existing and in
good standing under the laws of the State of Arizona, with full power to carry
on its business and activities as now being conducted;
(b) This Agreement has been duly authorized, executed and delivered by
Mobility. Mobility has the corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. No other act, approval or
proceeding on the part of Mobility is or will be required to authorize the
execution and delivery of this Agreement, or the consummation of the
transactions contemplated hereby; and
(c) The execution and delivery by Mobility of this Agreement will not,
and the fulfillment of and compliance by Mobility with the terms, conditions and
provisions hereof will not, (i) conflict with any of the terms, conditions or
provisions of the articles of incorporation or by-laws of Mobility, (ii) violate
any term, condition or provision of, or require any consent, authorization or
approval under, any judicial or arbitration judgment, order, award, writ,
injunction or decree applicable to Mobility, or (iii) conflict with, result in a
breach of, constitute a default under (whether with or without the giving of
notice or the lapse of time or both), or accelerate or permit the acceleration
of the performance required by, or require any consent, authorization or
approval under any document, instrument, agreement or license to which Mobility
or a person under its control is a party or is bound or to which any of the
assets or properties of Mobility or such person are subject.
8.3 INDEMNIFICATION.
(a) Mobility shall indemnify, hold harmless and defend Cybex, its
directors, officers, shareholders, employees, representatives, attorneys and
agents (each such Person a "Cybex Indemnitee") from and against any and all
claims, suits, losses, damages, costs, fees and expenses (including reasonable
attorneys' and experts witness fees and court costs) incurred by any Cybex
Indemnitee arising out of, resulting from or otherwise concerning a breach by
Mobility of any of Mobility's representations and warranties contained in this
Article 8.
(b) Cybex shall indemnify, hold harmless and defend Mobility, its
directors, officers, shareholders, employees, representatives, attorneys and
agents (each such Person a "Mobility Indemnitee") from and against any and all
claims, suits, losses, damages, costs, fees and expenses (including reasonable
attorneys' and experts' fees and court costs) incurred by any Mobility
Indemnitee arising out of, resulting from or otherwise concerning a breach by
Cybex of any of Cybex's representations and warranties contained in this Article
8.
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(c) Any Cybex Indemnitee or Mobility Indemnitee, as the case may be,
seeking to be held harmless, defended and indemnified in accordance with the
provisions of Section (a) or (b) of this Section 8.3 shall promptly notify
Mobility or Cybex, as appropriate (the "Indemnitor"), of any claim or suit
brought against such Cybex Indemnitee or Mobility Indemnitee in respect of which
such Cybex Indemnitee or Mobility Indemnitee intends to invoke the provisions of
this Section 8.3, although the failure to so notify the Indemnitor shall not
release such Indemnitor from its obligations under this Section 8.3 unless such
Indemnitor shall have been materially prejudiced by such failure. Such
Indemnitor shall indemnify, hold harmless and defend such Cybex Indemnitee or
Mobility Indemnitee, as the case may be, as above provided and keep such Cybex
Indemnitee or Mobility Indemnitee fully informed on a current basis of the
Indemnitor's defense and/or settlement of such claim or suit. The Cybex
Indemnitee or Mobility Indemnitee, as the case may be, shall reasonably
cooperate in the defense of such claim or suit and shall have the right, but no
obligation, to participate in the defense thereof with counsel of such Person's
choice at such Person's expense.
8.4 WAIVER OF CONSEQUENTIAL DAMAGES, ETC. Except as otherwise
contemplated in Article 8, neither party shall be liable for indirect, special,
consequential or punitive damages (including loss of income, profits or
goodwill) arising under or in relation to this Agreement whether based on an
action or claim in contract, equity, negligence, intended conduct, tort or
otherwise and each party hereby waives any claims with respect thereto. In
connection with the conduct of any litigation with third parties relating to any
liability of one party to the other or to such third parties, the one party
shall have all rights (including the right to accept or reject settlement offers
and to participate in such litigation) which are appropriate to its potential
responsibilities or liabilities. Cybex and Mobility expressly acknowledge that
the limitations and exclusions contained in this Section 8.4 have been the
subject of active and complete negotiation between the parties and represent the
parties' agreement based upon the level of risk to Mobility and Cybex associated
with their respective obligations under this Agreement and the payments provided
to Cybex hereunder.
IX.
PROPRIETARY INFORMATION
9.1 PROPRIETARY INFORMATION. During the period from the date of
disclosure until three (3) years after the termination of this Agreement, Cybex
and Mobility, respectively, will treat and maintain the proprietary business,
technical, patent prosecution and other proprietary information, to include the
documentation and comments communicated between Cybex and Mobility
(collectively, the "Proprietary Information") of the other party in confidence
(using at least the same degree of care as the recipient uses to protect its own
Proprietary Information of a like nature) and only use such Proprietary
Information in furtherance of this Agreement and the transactions and matters
contemplated herein.
9.2 PROPRIETARY INFORMATION. In order to be considered Proprietary
Information, proprietary information must be labeled or marked confidential or
proprietary by the disclosing party or reasonably be expected to be treated as
confidential or proprietary. The receiving party shall not remove any
proprietary or other legal notices from the Proprietary Information of the
disclosing party.
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9.3 CONFIDENTIAL DISCLOSURE. Notwithstanding the foregoing, Cybex or
Mobility may disclose Proprietary Information of the other party to its
employees, agents, consultants, contractors and permitted sublicensees, provided
that each such Person is bound by a like duty of confidentiality and restriction
on use. Notwithstanding the foregoing, such disclosing party shall remain
ultimately responsible for any non-permitted use of the Proprietary Information
by such party's employees, agents, consultants, contractors and permitted
sublicensees.
9.4 LIMITATIONS. Nothing contained herein will in any way restrict or
impair the right of Cybex or Mobility to use, disclose or otherwise deal with
any Proprietary Information of the other party:
(i) that the recipient can demonstrate by written records was
previously known to it;
(ii) that the recipient can demonstrate by written records was
independently developed by it without access to or use of the
Proprietary Information of the disclosing party;
(iii) that is now, or in the future becomes, publicly known other
than through acts or omissions of the recipient;
(iv) that is lawfully obtained by the recipient without
confidentiality or use restrictions known to the recipient
from sources independent of the disclosing party;
(v) that is required to be disclosed to a governmental entity or
agency in connection with seeking any governmental or
regulatory approval, or pursuant to the lawful requirement or
request of a governmental entity or agency; and/or
(vi) that the recipient is required to disclose pursuant to lawful
legal process or other applicable law.
X.
DISCLAIMER OF WARRANTIES
10.1 MOBILITY ACKNOWLEDGES THAT ITS USE OF THE CYBEX TECHNOLOGY IS AT
THE SOLE RISK OF MOBILITY. THE CYBEX TECHNOLOGY MAY CONTAIN DEFECTS, FAIL TO
COMPLY WITH APPLICABLE SPECIFICATIONS, AND PRODUCE UNINTENDED OR ERRONEOUS
RESULTS WHEN OPERATED ALONE OR IN COMBINATION WITH OTHER TECHNOLOGY OR ANY OTHER
HARDWARE, SOFTWARE, EQUIPMENT, OR PRODUCTS. MOBILITY ACCEPTS THE CYBEX
TECHNOLOGY "AS IS." NEITHER CYBEX NOR MOBILITY MAKE ANY WARRANTIES WITH RESPECT
TO THE SUBJECT MATTER OF THIS AGREEMENT OTHER THAN AS EXPRESSLY SET FORTH HEREIN
AND EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGMENT OR OF
FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, CYBEX
SPECIFICALLY DOES NOT WARRANT, GUARANTEE OR MAKE ANY
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REPRESENTATIONS: (i) THAT THE CYBEX TECHNOLOGY WILL MEET MOBILITY'S
REQUIREMENTS; (ii) THAT ANY PRODUCT INCORPORATING THE CYBEX TECHNOLOGY WILL BE
ERROR FREE OR OPERATE IN AN UNINTERRUPTED MANNER; (iii) REGARDING THE USE, OR
THE RESULTS OF THE USE, OF THE CYBEX TECHNOLOGY IN TERMS OF CORRECTNESS,
ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE
RESULTS AND PERFORMANCE OF THE CYBEX TECHNOLOGY IS ASSUMED BY MOBILITY. THE
WARRANTIES SET FORTH IN SECTIONS 8.1 AND 8.2 ABOVE ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES OR REMEDIES. NO VERBAL OR WRITTEN INFORMATION OR ADVICE
GIVEN BY CYBEX OR ITS AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A
WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND MOBILITY SHALL
NOT RELY ON ANY SUCH INFORMATION OR ADVICE. THE FOREGOING DISCLAIMERS OF
WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. MOBILITY AGREES TO
RELEASE CYBEX FROM ANY LIABILITY ANY CUSTOMER OF MOBILITY SUFFERS OR INCURS DUE
TO THE USE OF ANY PRODUCT INCORPORATING THE CYBEX TECHNOLOGY. Mobility shall
include with the sales documentation for any product which incorporates Cybex
Technology or Cybex Chips a disclaimer of any express or implied warranties of
merchantability or of fitness for a particular purpose.
10.2 Nothing in this Agreement shall be construed as a warranty or
representation by any of the Parties to this Agreement (i) as to the validity,
enforceability or scope of any patent, design patent or utility mode; (ii) that
any manufacture, sale, lease, import, use or other disposition of any products
hereunder will be free from infringement of any intellectual property right of
third parties.
10.3 Nothing in this Agreement shall be construed as an agreement or
authorization for Mobility to bring or prosecute actions or suits on behalf of
Cybex against third parties for patent infringement or conferring any right to
bring or prosecute actions or suits on behalf of Cybex against third parties for
patent infringement.
10.4 With the sole exception of its obligations to indemnify set forth
in Paragraph 8.3, Cybex's entire liability to Mobility for any cause whatsoever,
and regardless of the form of action, whether in contract or in tort, shall be
limited to the royalties actually paid by Mobility to Cybex pursuant to this
Agreement.
XI.
GENERAL PROVISIONS
11.1 MARKINGS. Mobility agrees to identify Cybex's products and
packaging incorporating Cybex Technology in a manner approved by Cybex, which
approval will not be unreasonably withheld.
11.2 SUPPORT. Cybex agrees to provide reasonable support to Mobility to
educate Mobility in the use of Cybex Technology at no charge. Additionally,
Cybex will provide Mobility with development and architecture systems support to
meet Mobility's new product development objectives and requirements for a
charge. Such charge will be quoted in advance on a case by case basis.
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11.3 ASSIGNMENT; BINDING EFFECT, ETC. This Agreement shall be binding
upon and inure to the benefit of Cybex and Mobility and their respective
permitted successors and permitted assigns. Subject to the following, the rights
and licenses of Mobility under this Agreement are personal to Mobility.
Notwithstanding the foregoing, Mobility may assign its rights and licenses under
this Agreement to any Affiliate (as hereinafter defined) or any successor to all
or substantially all of its business or assets without the prior written consent
of Cybex, provided such Affiliate or successor assumes in writing the
obligations of Mobility under this Agreement. Mobility Indemnitees and Cybex
Indemnitees are intended third party beneficiaries of this Agreement to the
extent expressly provided herein. Any permitted assignment of this Agreement by
either party shall not relieve or release such party from any of its duties or
obligations under this Agreement. Cybex shall not assign or transfer the Cybex
Technology or grant any security interest, lien, right, license or other
encumbrance upon or respecting the Cybex Technology unless such assignment,
transfer or grant is made expressly subject to the licenses and other terms and
conditions of this Agreement. Each and every permitted successor and permitted
assign to the interests of either party to this Agreement shall hold such
interests subject to the terms, conditions and provisions of this Agreement. For
the purpose of this Agreement, the term "Affiliate" shall mean any and all
corporations, partnerships, limited liability entities, and other entities that
are in or under direct or indirect control of Mobility or of another Affiliate
of Mobility and any and all corporations, partnerships, limited liability
entities, and other entities that are under common control with Mobility or any
successor to all or substantially all of the business of Mobility or such
Affiliate, and "control" shall exist whenever there is an ownership, profits,
voting, or other similar interest (including any right or option to obtain such
an interest) representing at least thirty percent (30%) of the total interests
of Mobility then outstanding (treating as outstanding any interests obtainable
by Mobility or the relevant Affiliate pursuant to the exercise of the
aforementioned rights or options).
11.4 INTERPRETATION. The parties acknowledge and agree that this
Agreement was prepared and drafted by the parties equally, and that neither
party shall be considered to have drafted this Agreement, nor shall this
Agreement, or any term hereof, be construed against a party on the grounds that
the party was the drafter.
11.5 ARBITRATION. Except as otherwise provided for in this Agreement,
all disputes, claims and controversies between the parties to this Agreement
shall be submitted to arbitration before a panel of three arbitrators. The
arbitration shall be conducted according to the commercial arbitration rules and
the rules governing large, complex cases of the American Arbitration
Association. A party shall commence arbitration under this paragraph by
submitting a concise statement of its claim and a demand for arbitration to the
other party and to the American Arbitration Association. The decision and award
of the arbitrators shall be final and binding, and the award so rendered may be
entered in any court having jurisdiction thereof. The arbitration shall be held
in Atlanta, Georgia. The arbitrators shall render their decision within thirty
(30) days after the Parties complete their submission of evidence and final
argument.
11.6 RELIEF. Nothing in this Agreement shall preclude a party from
seeking equitable or injunctive relief from a court on an emergency, temporary
or expedited basis prior to the pendency of an arbitration proceeding; provided
that the arbitration panel, once appointed, shall have the power and authority
to modify or rescind such relief. Venue for any action brought under this
paragraph shall be in Atlanta, Georgia.
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11.7 GOVERNING LAW. This Agreement, the entire relationship of the
parties hereto, as well as any claim by a party against another party, whether
grounded in tort, contract, law or equity, shall be construed and enforced in
accordance with the laws of the State of Delaware, without regard to its choice
of law principles.
11.8 COUNTERPARTS. This Agreement and any amendments, waivers, consents
or supplements hereto may be executed in any number of counterparts, and by
different parties in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same agreement. Each such agreement shall become
effective upon the execution of a counterpart hereof or thereof by each of the
parties hereto.
11.9 NOTICES All notices required or permitted under this Agreement
shall be deemed to have been given and received five (5) days after being
deposited in the U.S. Mail, certified mail, return receipt requested, postage
prepaid, to the following addresses:
To Mobility: Mobility Electronics, Inc.
Xxxxxxx Xxxxx
Chief Executive Officer
0000 X. Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
To Cybex: Cybex Computer Products Corporation
Xxxxx Xxxxx
Executive Vice President
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
11.10 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof and supersedes all prior or contemporaneous proposals, oral or
written, understandings, representations, conditions and all other
communications between the parties relating to such subject matter. Each party
represents and warrants to the other party that in entering into this Agreement
it has not relied on any representations, promises or assurances from the other
party or any employee, officer, director, representative, or attorney of the
other party not expressly contained in this Agreement. Any other terms or
conditions shall not be incorporated herein or be binding upon either party
unless expressly agreed to in writing by both parties.
11.11 SEVERABILITY. If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, then both parties shall be relieved
of all obligations arising under such provision, but only to the extent that
such provision is illegal, unenforceable or void. Further, this Agreement shall
be deemed amended by modifying such provision to the extent necessary to make it
legal and enforceable while preserving its intent or, if that is not possible,
by substituting therefor another provision that is legal and enforceable and
achieves the same intended objective. If the remainder of this Agreement shall
not be affected by such illegal, unenforceable or void provision and is capable
of substantial performance, then each provision not so affected shall be
enforced to the extent permitted by law.
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11.12 INTERPRETATION. In any interpretation of this Agreement, it shall
be deemed that this Agreement was prepared jointly by the parties, and no
ambiguity shall be construed or resolved against either party on the premise or
presumption that such party was responsible for drafting this Agreement.
11.13 WAIVER. No delay or omission by either party to exercise any
right or power hereunder shall impair any right or power or be construed to be a
waiver thereof. A waiver by either of the parties of any of the covenants,
conditions or agreements to be performed by the other party or any breach
thereof shall not be construed to be a waiver of any succeeding breach thereof
or of any other covenant, condition or agreement contained herein. All remedies
provided for in this Agreement shall be cumulative and in addition to and not in
lieu of any other remedies available to either party at law, in equity or
otherwise, and may be enforced concurrently therewith or from time to time.
11.14 HEADINGS. Captions, headings and titles in this Agreement are for
reference purposes only and are neither part of this Agreement nor to be used
for purposes of interpreting the Parties' intent.
11.15 FURTHER ACTS. Each party shall do, or cause to be done, all such
further acts, and shall execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, any and all such further documentation as
the other party reasonably requires to carry out the purposes of this Agreement.
11.16 MEDIA RELEASES. All media releases, public announcements and
public disclosures by Cybex or Mobility, or their respective representatives,
employees or agents, relating to this Agreement or its subject matter or using
the name of the other party shall be coordinated with and approved in writing by
the other party prior to the release thereof. Both Cybex and Mobility may
publicly disclose the existence of this Agreement and its broad purpose, but not
any of the specific terms thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
CYBEX COMPUTER PRODUCTS
CORPORATION
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Its: Executive Vice President
--------------------------------
MOBILITY ELECTRONICS, INC.
By: /s/ XXXXXXX X. XXXXX
---------------------------------
Its: President and Chief Executive
Officer
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