License And Engineering Services Agreement Between ParkerVision and [*]
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WITH
RESPECT TO THE OMITTED PORTIONS.
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License
And Engineering Services Agreement
Between
ParkerVision and [*]
This
Agreement (“Agreement”)
is
entered into and made effective as of December 21, 2007 (the “Effective
Date”)
by and
between [*] and ParkerVision, Inc., a Florida corporation with offices at 0000
Xxxxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 (“ParkerVision”).
Recitals
WHEREAS,
ParkerVision has developed and patented technology that is designed to address
certain limitations in applying traditional approaches to RF transmission,
reception, and power amplification, and
WHEREAS,
[*] desires to license from ParkerVision, and ParkerVision desires to license
to
[*], such technology, pursuant to the terms and conditions of this Agreement,
WHEREAS,
[*] also desires to have ParkerVision provide, and ParkerVision desires to
provide, engineering services to [*] with respect to the development by [*]
of a
product based on such technology, pursuant to the terms and conditions of this
Agreement, and
WHEREAS,
[*] and ParkerVision intend to work together to establish the economic
feasibility and marketability as a practical matter for [*] of the unique and
innovative technology that ParkerVision has conceived and developed and is
continuing to develop;
NOW,
THEREFORE, in consideration of the foregoing premises and of the performance
of
the mutual covenants herein, the parties agree as follows:
1. DEFINITIONS
1.1 [*].
1.2 “Affiliate”
means
any entity that directly or indirectly controls, is controlled by or is under
common control with, as appropriate, ParkerVision or [*]. For purposes of this
definition, “control”
means
beneficial ownership of (i) more than fifty percent (50%) of the shares of
the
subject entity entitled to vote in the election of directors (or, in the case
of
an entity that is not a corporation, for the election of the corresponding
managing authority); or (ii) such lesser percentage as is the maximum control
or
ownership right permitted in the country where the subject entity
exists.
1.3 “Chipset”
means
a
chip or a group of chips designed to work as a unit to perform a function.
For
example, a modem chipset contains all the primary circuits for modulating and
demodulating a signal.
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1.4 “Confidential
Information”
has
the
meaning set forth in Section 12.1.
1.5 “d2d
Technology”
means
Technology developed by ParkerVision that is designed to address certain
limitations in applying the currently widely used approaches to RF reception.
1.6 “d2p
Technology”
means
Technology developed by ParkerVision that is designed to address certain
limitations in applying the currently widely used approaches to RF transmission
and power amplification.
1.7 “Development
Tools”
means
the ParkerVision development tools described in the Statement of Work.
1.8 “Implementation
Technology”
means
any Technology for incorporating or embodying the ParkerVision
RF Communications Technology into
a semiconductor device, wireless system or other product which is not based
on
the ParkerVision
RF Communications Technology
and does not require knowledge of the ParkerVision
RF Communications Technology.
[*].
1.10 “Intellectual
Property Rights”
means
patents, certificates of invention, utility models, design rights and similar
invention rights, copyrights, trade secret rights, mask work rights, and any
other intangible property or proprietary rights (other than trademarks, trade
names, service marks and trade dress rights) recognized anywhere in the world
under any state or national statute or treaty or common law right, including
without limitation all applications and registrations with respect to any of
the
foregoing.
1.11 “Licensed
Patents”
means:
1.11.1 the
issued patents listed in Exhibit
B
hereto;
1.11.2 any
and
all patent(s) that may issue to ParkerVision or its Affiliates based upon the
United States patent application(s) listed in Exhibit
B
hereto;
1.11.3 any
and
all patent(s) that may issue to ParkerVision or its Affiliates based upon the
international patent application(s) listed in Exhibit
B
hereto;
1.11.4 [*].
1.11.5 [*].
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1.11.6 all
continuations, divisionals, reissues, reexaminations, and substitutions
(“Continuations”)
that
may issue from any of the foregoing based on the subject matter disclosed in
any
of the foregoing, provided that such Continuations have Patent Claims covering
the Licensed Technology.
ParkerVision
shall not sell, assign or transfer any patent application to any person or
entity, other than an Affiliate, for the purpose of avoiding patents issuing
on
such application from becoming a “Licensed Patent”. Any sale or disposition of
the Licensed Patents shall be subject to the licenses granted under this
Agreement.
1.12 “Licensed
Process”
means
any process or method claimed in or practiced by any of the Licensed Patents
or
described in any of the Licensed Technology.
1.13 “Licensed
Product”
means
Tx Licensed Product, Rx Licensed Product and Tx/Rx Licensed
Product.
1.13.1 “Rx
Licensed Product”
means
a
Chipset that incorporates or is based on any or all of the Licensed
Technology, but does not include d2p Technology, and does include
[.]
1.13.2 “Tx
Licensed Product”
means
a
Chipset that incorporates or is based on any or all of the Licensed Technology,
but does not include d2d Technology, and does include [*].
1.13.3 “Tx/Rx
Licensed Product”
means
a
Chipset that incorporates or is based on any or all of the Licensed Technology
and contains both d2p Technology and d2d Technology, and includes all of the
functional elements named in the definitions of both Rx Licensed Products and
Tx
Licensed Products.
1.14 “Licensed
Technology”
means
the d2p Technology and d2d Technology as they exist as of the Effective Date,
as
well as any ParkerVision
RF Communications Technology, Improvements to ParkerVision RF Communications
Technology, and Implementation Technology, which is owned by ParkerVision and
delivered by ParkerVision to [*] under a Statement of Work.
1.15 “Net
Sales”
means
the gross revenue invoiced by [*] or any of its Affiliates based upon any Sales
of the Licensed Products to unaffiliated third parties, less [*], in each case
to the extent separately stated on the invoice. No other costs incurred in
the
manufacture, sale, distribution, or exploitation of the Licensed Products shall
be deducted from gross revenue in the calculation of Net Sales. In the case
of
sales or other commercial distributions between [*] and its Affiliates or
between Affiliates of [*], Net Sales shall be calculated on the basis of (i)
in
the case of a Licensed Product that is Sold by an Affiliate to an unaffiliated
third party, the then Net Sales shall be calculated on the basis of that sale,
and (ii) if a Licensed Product is Sold only to an Affiliate and not further
Sold
to an unaffiliated third party, then Net Sales shall be calculated on the basis
of the most recent previous sale by [*] to an unaffiliated third party.
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1.16 “New
Physical Layer"
means
any physical layer that is not a Preexisting [*] Physical Layer.
1.17 “Open
Source License Terms”
means
terms in any license for software which require, as a condition of use,
modification and/or distribution of such software or other software incorporated
into, incorporating, derived from or distributed with such software (a
“Work”),
any
of the following:
(a)
the
making available of source code, object code, or design information regarding
the Work;
(b)
the
granting of permission for creating derivative works regarding the Work;
or
(c)
the
granting of a license to any party under any Intellectual Property Rights in
or
to the Work.
By
means
of example and without limitation, the following licenses and distribution
models have Open Source License Terms: the GNU General Public License (GPL),
the
GNU Lesser or Library GPL (LGPL), Mozilla Public License (MPL), or any similar
open source, free software or community licenses.
1.18 “ParkerVision
RF Communications Technology”
means
the ParkerVision Technology delivered by ParkerVision to [*] under a Statement
of Work and consisting of either d2p Technology, d2d Technology, or both d2p
Technology and d2d Technology.
1.19 “ParkerVision
Software”
means
any software included within the definition of Licensed Technology or developed
on behalf of [*] pursuant to any SOW, including without limitation the
ParkerVision RF Communications Technology software engine and any software
included within the Development Tools.
1.20 “Patent
Claim”
shall
have the meaning given to such term under the applicable laws of a patent office
or jurisdiction and, for purposes of clarification, refers to a portion of
a
patent or patent application that defines the scope of protection for an
invention.
1.21 “Preexisting
[*] Physical Layer”
means
the physical layer of any Preexisting [*] Standard.
1.22 “Preexisting
[*] Standards”
shall
mean each and all of the wireless communication standards administered by and/or
compliant with regulations issued by [*].
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1.23 “Sell”
means
sell, lease, license or otherwise distribute, provided that Sell does not
include (a) transfer of up to [*] free units per customer for demonstration
and
testing purposes or (b) transfers between Affiliates for non-commercial
purposes.
1.24 “SOW”
means
a
Statement of Work containing the tasks, deliverables, target delivery dates
and
payments set forth in Exhibit
A
(including Exhibit
A-1
and
Exhibit
A-2)
attached
hereto, as such SOW may be modified on mutual written agreement. There may,
but
not necessarily will, be additional sequentially numbered SOWs (e.g., X-0,
X-0,
etc.) entered into by the parties under this Agreement.
1.25 “Technology”
shall
mean any and all of the following (i) works of authorship including
computer programs, whether in source code or and executable code form,
architecture and documentation, (ii) inventions (whether or not
patentable), discoveries and improvements, (iii) proprietary and
confidential information, trade secrets and know how, (iv) databases, data
compilations and collections and technical data, (v) methods and processes,
and (vi) devices, prototypes, designs and schematics; (vii) simulations and
analysis related to the foregoing.
1.26 “Update"
means
each and every standard which operates using substantially the same physical
layer as a Preexisting [*] Physical Layer. This definition is independent
of the organization that administers and governs the standard, and independent
of any name given to such standard. For purposes of clarification of the
foregoing, any specification that operates using substantially the same physical
layer as a Preexisting [*] Physical Layer shall be an Update, regardless of
whether the mode of operation has been renamed, and regardless of whether it
has
been merged in text with other standards. Not withstanding the foregoing,
a specification that operates using a New Physical Layer is not an Update,
even
if included in the same document with an Update, or bearing the name of another
standard or otherwise characterized as an Update. The determination of
whether a particular standard is an Update turns solely on whether the new
specification operates using a Preexisting [*] Physical Layer or New Physical
Layer, (with the former being an Update and the latter not being an Update)
and
is independent of the nomenclature applied to, or organization of the standards
text.
1.27 “Vector
Synthesis Engine”
means
the portion of the ParkerVision Software consisting of logic implemented in
digital gates that transform baseband I/Q data vectors into proprietary control
and baseband signals for the purpose of operating the d2p RF IC such that the
RF
IC creates at the RF output amplitude and phase modulated RF
waveforms.
1.28 [*].
1.29 [*].
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2. ENGINEERING
SERVICES AND ACCEPTANCE
2.1 Engineering
Services.
2.1.1 Obligations.
Subject
to the terms and conditions set forth in each SOW, ParkerVision shall use
commercially reasonable efforts to provide the engineering services specified
in
the SOW to [*] for the development of a Licensed Product. [*] shall use
commercially reasonable efforts to fulfill its obligations under each SOW and
those additional tasks that are necessary and/or appropriate to and reasonably
required to be performed by [*] given the relationship of the parties in order
to further develop the Licensed Product into production release.
2.1.2 Deliverables.
Subject
to the terms and conditions set forth in each SOW, deliverables to be provided
by ParkerVision are set forth in the SOW and include a description of the
technical approach selected for implementing the Licensed Product, a development
program plan identifying program tasks, responsibilities, and schedules, the
completion of development tasks, and the delivery of the Development Tools.
In
addition, pursuant to the terms and conditions set forth in any SOW, [*] may
provide certain testing equipment to ParkerVision.
2.1.3 Deliverables.
2.1.3.1.
Acceptance.
Upon
successful completion of, and closure of action items from the review of the
final deliverable in each SOW (the “Final
Deliverable”),
[*]
shall accept such Final Deliverable provided that if [*] reasonably determines
after its own testing with such assistance as is reasonably required from
ParkerVision, that the Final Deliverable comply in all material respects with
the Final Deliverable requirements set forth in the SOW. If within forty five
(45) working days of such review, [*] fails to provide ParkerVision with either
written notice of acceptance or written notice of rejection of the Final
Deliverable, [*] will be deemed to have accepted such Final
Deliverable.
2.1.3.2.
Rejection.
If [*]
rejects, in good faith, the Final Deliverable specified in the SOW after [*]
to
correct by ParkerVision made within mutually agreeable time periods, then [*]
may, at its sole option, pursue any of the following options upon provision
of
written notice to ParkerVision:
(i) [*];
(ii) [*].
The
parties acknowledge and agree that: (a) [*],
in
its sole and complete discretion, may elect to chose either or both of the
foregoing remedies as well as all other remedies to which it is entitled
hereunder; (b) that ParkerVision shall [*]. Notwithstanding the foregoing and
regardless of the reason therefor, [*].
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2.2 Exchange
of Deliverables.
Each
party shall provide to the other party one (1) copy of any deliverables
specified in each SOW to be delivered by such party, unless otherwise specified
in the SOW.
2.3 Project
Managers.
Each
party shall appoint one (1) project manager who will act as a liaison with
the
other party for the term of this Agreement.
3. DEVELOPMENT
TOOLS AND DEVELOPMENT LICENSE
3.1 Software.
3.1.1 License
Grant.
ParkerVision hereby grants [*] a [*] license to use and reproduce the
ParkerVision Software as may be reasonably necessary for [*] to incorporate
such
ParkerVision Software into one or more Licensed Products that [*], in its sole
and complete discretion but subject to the terms and conditions hereof, deems
appropriate.
[*]
shall have the right to sublicense to customers the right to use solely those
portions of ParkerVision Software delivered under each SOW that are necessary
for the customer to use Licensed Products; provided that in no event shall
the
foregoing right to sublicense include the Vector Synthesis Engine; provided,
further that any such sublicense shall be granted pursuant to the same terms
and
conditions (including, by way of example, confidentiality provisions and
prohibitions on reverse engineering) that apply to [*] software in similar
circumstances.
3.1.2 No
Reverse Engineering.
With
respect to any third party software provided with the ParkerVision Software,
[*]
shall not (a) modify, translate, reverse engineer, decompile, disassemble or
otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate or
otherwise circumvent any software protection mechanisms in such third party
software, including without limitation any such mechanism used to restrict
or
control the functionality of such third party software, or (ii) to derive
the source code or the underlying ideas, algorithms, structure or organization
from such third party software; or (b) alter, adapt, modify or translate such
third party software in any way for any purpose, including without limitation
error correction. Further, [*] shall not distribute, rent, loan, lease, transfer
or grant any rights in the ParkerVision Software or modifications thereof in
any
form to any person or entity for any purpose inconsistent with the terms
hereof.
3.2 [*].
Upon
[*] request, ParkerVision agrees to provide to [*] pursuant to mutually
agreeable terms and conditions [*] as described in each SOW, and, in addition,
[*] may provide pursuant to mutually agreeable terms and conditions certain
[*].
Each party agrees to use items delivered to it by the other party solely for
the
purposes consistent with this Agreement, agrees not to dispose of items
delivered to it by the other party hereunder and/or pursuant to any SOW (by
sale, transfer or otherwise) without the prior written consent of the delivering
party, and agrees not to disclose or use such items in any manner inconsistent
with the limitations imposed upon such use and disclosure by the party
delivering the item. Shipment of the [*] shall be F.O.B. ParkerVision’s facility
or such other terms as stated in the relevant SOW. The risk shall pass in
accordance with the terms of sale.
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4. SUPPORT
After
completion of each party’s tasks specified in each SOW and acceptance by [*] of
[*] under the SOW (if [*] does in fact accept such deliverable), ParkerVision
shall provide to [*] reasonable support with respect to the use, functioning
and
implementation of the ParkerVision
RF
Communications Technology into a Licensed Product as [*] may request from time
to time, subject to the reasonable availability of ParkerVision personnel and
resources.
5. OWNERSHIP
5.1 ParkerVision.
5.1.1 Subject
to the license granted herein, ParkerVision retains all right, title and
interest in and to the ParkerVision RF Communications Technology developed
prior
to, or outside the scope of, this Agreement, and in and to any Improvements
to
ParkerVision RF Communications Technology and Implementation Technology that
may
be made, invented, authored, developed or otherwise created solely by
ParkerVision or its employees under this Agreement.
5.1.2 [*].
5.2 [*].
5.2.1 [*].
5.2.2 [*].
5.2.3 [*].
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6. GRANT
OF LICENSES
6.1 Licensed
Patents and Licensed Technology.
6.1.1 Grant.
Subject
to the terms and conditions of this Agreement, ParkerVision grants to [*],
a [*]
license (with no right to sublicense), under the Licensed Patents and any
copyrights, trade secrets and mask work rights (recognized anywhere in the
world
under any state or national statute or treaty or common law right, including
without limitation all applications and registrations with respect to any of
the
foregoing) in and to the Licensed Technology owned or licensable by
ParkerVision, to use, modify, reproduce [*] (except as set forth below) of
the
Licensed Technology in order to develop Licensed Products or to have any third
party, subject to the provisions hereof, perform any or all of the foregoing
for
[*], and to make, have made, use, sell, offer for sale and import Licensed
Products; and to practice any Licensed Process involved in the manufacture
or
use thereof.
6.1.2 Have
Made Rights.
[*]
understands and acknowledges that the “have made” rights granted in Section
6.1.1 extend only to Licensed Products that are made by a third party for the
use, sale, offer for sale and/or import by or on behalf of [*] and (A) for
which
the Licensed Product will be branded by [*], or any Affiliate of [*], or (B)
where (whether branded by [*] or not) both
(i) the designs, specifications and working drawings for the manufacture of
the
Licensed Product to be manufactured by that third party are furnished by [*]
and
(ii) such designs, specifications and working drawings are in sufficient detail
that no material additional design work is required by the third party, other
than adaptation to the production processes and standards normally used by
that
third party, provided such adaptation only changes the characteristics of such
Licensed Products to an extent that is not material.
Upon
written request from ParkerVision, [*] shall promptly inform ParkerVision in
writing whether and to what extent any manufacturer identified by ParkerVision
is operating under the Licensed Patents pursuant to [*]'s “have made” rights
granted under Section 6.1.1 subject to [*].
6.2 No
Other Licenses.
Except
as expressly set forth in Sections 3.1.1 or this Section 6 or Section 7, no
license or other right is granted herein by either party to the other party,
directly or by implication, estoppel or otherwise, and no such license or other
right will arise from the consummation of this Agreement or from any acts,
statements or dealings leading to such consummation.
6.3 [*].
6.3.1 [*].
6.3.2 [*].
7. [*]
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8. PATENTS
ParkerVision
hereby represents that the issued patents and patent applications listed on
Exhibit
B
include
all issued patents and patent applications owned by ParkerVision and its
Affiliates as of the Effective Date that have Patent Claims covering the
Licensed Technology.
9. PUBLIC
ANNOUNCEMENT
9.1 Consent
Required.
Neither
party shall make any public announcement about this Agreement without the prior,
written consent of the other party, which consent shall not be unreasonably
withheld or delayed. The parties agree that it shall not be deemed to be
unreasonable for [*] to withhold consent to any public announcement that
identifies [*] if [*] believes that identification of [*] would
[*].
9.2 Exception.
Notwithstanding the foregoing, either of the parties may at any time make
announcements which are required by applicable law, regulatory bodies, or stock
exchange or stock association rules, so long as such party so required to make
the announcement, promptly upon learning of such requirement, notifies the
other
party of such requirement and discusses with the other party in good faith
the
exact wording of any such announcement.
9.3 Indemnity.
ParkerVision shall, at its expense, defend, indemnify and hold [*] harmless
from
and against any claims or allegations that [*]. [*] shall promptly notify
ParkerVision of any claim or allegation under this Section 9.3, give
ParkerVision the sole right to control the defense or settlement thereof, and
give ParkerVision reasonable cooperation and assistance in connection therewith.
ParkerVision shall not settle any claim that requires [*] to admit any liability
or pay any money without [*]’s prior written consent. ParkerVision shall not be
responsible for any costs or expenses incurred without its prior written
consent.
10. FEES
AND PAYMENT
10.1 Engineering
Services.
10.1.1 Support.
For
support services provided to [*] pursuant to Section 4 of this Agreement, [*]
agrees to pay ParkerVision [*]. All Support fees are due within sixty (60)
days
of invoice date.
10.1.2 [*].
The
price for the [*], if any, is as specified in the SOW. Payment is due within
sixty (60) days of the invoice date.
10.2 Royalties.
10.2.1 [*]
shall
pay ParkerVision royalties [*] of Licensed Products Sold as
follows:
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10.2.1.1. For
Rx
Licensed Products and Tx Licensed Products, [*] will pay royalties
[*].
10.2.1.2. For
Tx/Rx
Licensed Products, [*] will pay royalties [*].
10.2.2 [*]
10.2.2.1. [*].
10.2.2.2. [*].
10.2.3 [*]
shall
pay ParkerVision a non-refundable pre-paid royalties in the amount of [*],
which
amount shall be due and payable in full within sixty (60) days of the Sale
of
the [*] unit of Licensed Products. This prepaid royalty payment constitutes
advance payment of the royalties set forth in this Section and will reduce
[*]’s
obligation to pay therefore on a dollar for dollar basis.
10.2.4 [*].
10.2.5 When
Royalties Become Payable.
Royalties shall be calculated and paid for each calendar quarter with respect
to
Net Sales during that calendar quarter, less Net Sales for Licensed Products
returned to [*] for which (i) [*] refunded the purchase price and (ii) a royalty
was previously paid by [*] to ParkerVision. Royalties due by [*] for each
calendar quarter shall be reported to ParkerVision within forty-five (45) days
following the end of each calendar quarter and shall be accompanied by the
reports described in Section 11 below, and the payment of such royalties shall
be sixty (60) calendar days after the end of each calendar quarter. In no event
will [*] be entitled to any refund of
any royalties previously paid.
10.2.6 Payment
Terms.
All
payments made hereunder shall be in United States Dollars and may be made,
at
ParkerVision’s option as conveyed to [*] in no less than ten (10) calendar days
prior to the date of payment, by wire transfer or check. Royalties based on
sales in other currencies shall be converted to United States Dollars according
to the official rate of exchange for that currency, as published in any credible
and widely used reference source, including, without limitation, the official
government bank of the nation in which the denominated sales were made [*],
the
Wall Street Journal, Yahoo Financial, or other, similar publication on the
last
day of the calendar month in which the royalty accrued (or, if not published
on
that day, the last publication day for the Wall Street Journal during that
month).
10.3 Late
Payment Charges.
[*]
shall pay ParkerVision a late fee on all amounts not paid by the date due set
forth herein equal to [*].
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10.4 Taxes.
All
payments by [*] shall be made free and clear of, and without reduction for,
any
and all taxes, including, without limitation, sales, use, property, license,
value added, excise, franchise, income, withholding or similar taxes, other
than
such taxes which are imposed by any government or any political subdivision
thereof based on the net income of ParkerVision. Any such taxes which are
otherwise imposed on payments to ParkerVision shall be the sole responsibility
of [*]. [*] shall provide ParkerVision with copies of official receipts issued
by the appropriate taxing authority or such other evidence as is reasonably
requested by ParkerVision to establish that such taxes have been
paid.
11. REPORTS
AND AUDIT
11.1 Records
and Royalty Reports.
[*]
shall keep accurate records of its operations respecting the Sale, of the
Licensed Products by [*] to the extent necessary (i) for the royalties payable
hereunder to be determined, or (ii) to inform ParkerVision of all Licensed
Products Sold, or otherwise distributed by [*], including without limitation
for
testing, qualifications and evaluation purposes, for a period of no less than
five (5) years after such records are generated. Such records shall include,
without limitation, records of the quantity of such Licensed Products. [*]
shall
prepare quarterly written reports of the same, disclosing the quantity of such
Licensed Products Sold, or otherwise distributed by [*] and showing the amount
of royalties due for such quarter, and shall submit such reports to ParkerVision
within [*] after the end of each quarter of a calendar year in which sales
subject to the royalty provided for in Section 10, above are made.
11.2 Audit.
Upon at
least [*] advance, written notice and no more frequently than once per calendar
year, ParkerVision shall have the right, at its own expense, to examine such
records through an independent representative during [*]'s ordinary business
hours to the extent reasonably necessary to confirm or correct such reports.
Such inspections shall be made by an international auditing firm that does
not
and has not for the past three (3) years provide other accounting or financial
services to ParkerVision, which representative may furnish to ParkerVision
only
its conclusions as to the accuracy of such reports, as to any discrepancies
therein, and as to any adjustment necessary to be made to provide for payment
of
the proper amount of royalties, but not any other information of [*] gleaned
in
the course of such audit. ParkerVision shall identify the international auditing
firm in advance of the audit in writing, and [*] shall approve the international
auditing firm in advance, which approval shall not be unreasonably withheld
and
shall be granted in any event if the international auditing firm meets the
criteria set forth above. In addition, as a condition to being granted any
access to [*]'s record, such international auditing firm shall, on its own
behalf and on behalf of all of its agents, execute a nondisclosure agreement
reasonably acceptable to [*]. In the event that any examination by such mutually
agreed upon international auditing firm reveals that [*] has underpaid royalties
due to ParkerVision by [*] or more which underpayment is in excess of [*],
then
[*] shall reimburse ParkerVision for the reasonable cost of such audit. [*]
shall further promptly pay to ParkerVision any additional royalties due after
the receipt of written notice by ParkerVision of [*]’s underpayment. With
respect to any underpayments more than [*] old, [*] agrees to pay interest
on
such underpayments at the lowest rate that [*] is currently paying, or has
most
recently paid, for a loan from a commercial bank as of the date the audit
reveals such underpayment. All information disclosed under this
Section 11.2 shall be deemed [*] Confidential Information and shall be used
for the sole purpose of verifying proper reporting of Licensed Products and
proper payment of royalties. The auditors shall not spend more than [*] in
[*]'s
premises unless it is not reasonably possible to complete the audit within
such
time period, in which case the auditors may remain in [*]'s premises only for
such period of time as is reasonably necessary to complete their
work.
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CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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11.3 Maintenance
of Records.
[*]
shall maintain all records relating to the sale, lease or other distribution
of
the Licensed Products during the term of this Agreement for a period of five
years after the termination of this Agreement, after which [*] shall have no
obligation to maintain, and ParkerVision shall have no right to inspect, any
such records.
12. CONFIDENTIAL
INFORMATION
12.1 “Confidential
Information”
means,
with respect to either party, any confidential business or technical
information, including know-how, whether or not patentable or copyrightable,
that the disclosing party identifies as confidential or proprietary at the
time
it is disclosed or delivered to the receiving party. The ParkerVision
RF
Communications Technology, the Licensed Technology and the contents of any
unpublished Licensed Patents and patent applications listed in Exhibit
B
shall in
any event be deemed the Confidential Information of ParkerVision. Further,
any
[*] shall be deemed the Confidential Information of the developing party and
except as otherwise set forth in this Agreement, such party shall have no
obligation to disclose such [*] to the other party.
12.2 Exceptions.
Confidential Information does not include any information that the receiving
party can demonstrate by written records: (a) was known to the receiving
party prior to its disclosure hereunder by the disclosing party; (b) is
independently developed by the receiving party; (c) is or becomes publicly
known through no wrongful act of the receiving party; (d) has been
rightfully received from a third party whom the receiving party has reasonable
grounds to believe is authorized to make such disclosure without restriction;
or
(e) has been approved for public release by the disclosing party’s prior
written authorization. Each party may disclose any Confidential Information
as
required to be produced or disclosed pursuant to applicable law, regulation
or
court order, provided that the receiving party provides prompt advance notice
thereof to enable the disclosing party to seek a protective order or otherwise
prevent such disclosure. In addition, each party may disclose the existence
and
terms of this Agreement in confidence in connection with [*]or [*], or to the
extent required by law in connection with a public offering of such party’s
securities pursuant to Section 9.
12.3 Non-Disclosure
and Non-Use.
Each
party will: (i) not use any Confidential Information of the other party except
in the performance of the Engineering Services Agreement or as permitted by
this
Agreement; (ii) not disclose any such Confidential Information to any person
or
entity other than its own employees, consultants and contractors who have a
need
to know and who have executed in advance of receiving such Confidential
Information a suitable nondisclosure and restricted use agreement that comports
with the applicable provisions of this Agreement; (iii) not disclose any source
code of the ParkerVision Software (other than source code of driver software)
to
any third party, including without limitation, consultants or contractors of
[*], other than independent contractors of [*] retained directly by [*] or
through a staffing or temporary agency, who have been issued a [*] personnel
badge in accordance with [*]’s standard human-resource practices and who
predominately work on-site at [*]’s facilities, and provided any such disclosure
is strictly in accordance with Section 12.3(ii) above; and (iv) use all
reasonable efforts to keep such Confidential Information strictly confidential.
Each party will use reasonable efforts to enforce such nondisclosure and
restricted use agreements.
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CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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13. PATENT
MARKING
[*]
agrees to xxxx the documentation associated with the Licensed Products with
the
number(s) of the Licensed Patent(s) covering such Licensed Products and with
“Patent Pending” (along with a listing of the relevant patent application
numbers) if any patent applications relating to such Licensed Products are
pending before the United States Patent and Trademark Office or the patent
office of a foreign country, as applicable, as such Licensed Patent number(s)
and reasonable guidelines for use are provided by ParkerVision to [*] for this
purpose and updated from time to time.
14. TERM
This
Agreement shall commence on the Effective Date and continue until
[*].
15. TERMINATION
15.1 Termination
for Breach.
At any
time after the occurrence of an Event of Default, this Agreement may be
terminated at the election of the Non-Defaulting Party, effective as of the
date
specified in a notice of termination provided to the Defaulting Party. As used
herein, “Event
of Default”
means
one or more of the following events: if there should occur a material breach,
default or noncompliance by one party (the “Defaulting
Party”)
of or
with any term or condition hereof followed by written notice of such breach,
default or noncompliance from the other party (the “Non-Defaulting
Party”)
and
the failure of the Defaulting Party to remedy or correct such breach, default
or
noncompliance within [*] after receipt of such notice (the “Cure
Period”).
15.2 Termination
upon [*] Challenge to the Licensed Patents.
ParkerVision may terminate this Agreement upon written notice to [*] in the
event [*] leads or actively participates in (other than as required by law
or
court order) any effort to challenge the validity, enforceability or scope
of
any Licensed Patent. [*] will not be entitled to any refund of any royalties
previously paid.
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CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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15.3 Effect
of Termination or Expiration.
15.3.1 Cease
Use of Technology and Return Materials.
In the
event this Agreement expires or is terminated by either party, then all licenses
granted to [*] will automatically cease as of the date of termination, provided,
however, that:
15.3.1.1. For
such
time as is reasonably required, as a practical matter, and subject to the
payment of royalties under Section 10, [*] shall have the right to Sell off
any
Licensed Products in inventory, except that [*] shall not have such rights
to
Sell off any Licensed Products in inventory in the event this Agreement is
terminated by ParkerVision under Section 15.1 or 15.2; and
15.3.1.2. Upon
termination or expiration of this Agreement and except as otherwise provided
herein or otherwise as reasonably required for the performance of either Party's
obligations hereunder or use of the license granted hereunder, each party shall
return to the other party or destroy all copies of the technology, materials
and
information provided to it by the other party hereunder, or any portion thereof,
in its possession or control.
15.3.2 Payment
of Royalties.
Upon
any expiration or termination becoming effective, [*] will, within [*]
thereafter, or otherwise as they become due, pay all royalties and other fees
hereunder and interest owed ParkerVision as of the date of such termination
or
expiration.
15.4 Survival
of Certain Provisions.
The
provisions of Sections 1, 3.1.2, 5, 6.2, 7, 10.4, 11, 12, 13, 16.2, and 17-19
of
this Agreement will survive any expiration or termination of this Agreement.
16. WARRANTIES
16.1 Warranties.
16.1.1 Warranties
by ParkerVision.
ParkerVision hereby represents and warrants to [*] that: (a) it has the full
right, power and authority to enter into this Agreement and grant the licenses
granted hereunder; (b) this Agreement is a valid and binding obligation of
such
party; (c) it has obtained and shall maintain throughout the term of this
Agreement all necessary licenses, authorizations, approvals and consents to
enter into and perform its obligations hereunder in compliance with all
applicable laws, rules and regulations; and (d) as of the Effective Date and
to
its knowledge, the Licensed Technology does not infringe any Intellectual
Property Rights of any third party.
16.1.2 Warranties
by [*].
[*]
hereby represents and warrants to ParkerVision that: (a) it has the full right,
power and authority to enter into this Agreement and grant the licenses granted
hereunder; (b) this Agreement is a valid and binding obligation of such party;
and (c) it has obtained and shall maintain throughout the term of this Agreement
all necessary licenses, authorizations, approvals and consents to enter into
and
perform its obligations hereunder in compliance with all applicable laws, rules
and regulations. [*]
represents and warrants that [*] shall not act in any manner that would require
any ParkerVision Software to be licensed under Open Source License
Terms.
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CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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16.2 Disclaimer
of Other Warranties.
EXCEPT
AS SET FORTH IN SECTION 16.1, NEITHER PARTY MAKES ANY WARRANTIES TO THE OTHER,
EITHER EXPRESS, IMPLIED OR STATUTORY, AND EACH PARTY HEREBY DISCLAIMS ANY AND
ALL SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Nothing
contained in this Agreement shall be construed as (i) a warranty or
representation by ParkerVision as to the validity and/or scope of any Licensed
Patent; (ii) imposing upon ParkerVision any obligation to institute any suit
or
action for infringement of any Licensed Patent; or (iii) imposing on
ParkerVision any obligation to file any patent application or to secure any
patent or maintain any patent in force.
17. INDEMNIFICATION
17.1 ParkerVision
Obligations.
17.1.1 Intellectual
Property Indemnity.
Subject
to prompt, written notification by [*], cooperation by [*] and control of all
litigation and/or settlement by ParkerVision, ParkerVision shall defend [*]
from
and against any third party claims brought against [*] alleging that any
ParkerVision RF Communications Technology incorporated into Licensed Products
or
otherwise used by [*] in accordance with the terms hereof infringes or
misappropriates any patent, copyright or trade secret of any third party. [*]
agrees to notify ParkerVision promptly of any matters in respect to which the
foregoing indemnity in this Section 17.1.1 may apply. If notified in writing
of
any action or claim for which ParkerVision is to provide the foregoing
indemnity, [*]. Notwithstanding the foregoing, ParkerVision shall obtain [*]’s
advance written consent, which shall not be unreasonably withheld or delayed,
if
[*] is required to incur or admit liability as a result of such settlement
by
ParkerVision.
17.1.2 Remedy
in the Event of Prohibition of Use.
If a
preliminary or final judgment is, or is reasonably likely to be, entered against
[*]’s use, sale, lease or distribution of a Licensed Product that incorporates
any ParkerVision RF Communications Technology, due to infringement of any third
party patents, copyrights or trade secrets by the ParkerVision RF Communications
Technology, or if ParkerVision reasonably believes that the ParkerVision RF
Communications Technology may be found to infringe any third party patents,
copyrights or trade secrets, then ParkerVision shall, at its sole discretion
and
expense, either (a) modify the ParkerVision RF Communications Technology so
that
such technology becomes noninfringing, (b) substitute the ParkerVision RF
Communications Technology with other non-infringing technology with materially
the same functionality (or better) as the infringing ParkerVision RF
Communications Technology or parts or (c) obtain a license to permit [*] to
exercise the rights granted hereunder; provided, however, that in the event
that
ParkerVision is unable after [*] to accomplish either (a), (b) or (c), then
[*]
agrees to cease any and all use, sale, lease and distribution of any Licensed
Product that incorporates such ParkerVision RF Communications Technology within
[*] of receipt of notice from ParkerVision or such earlier time as may be
required to comply with a court order.
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CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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17.2 Limitation
of Indemnification Liability.
In no
event shall ParkerVision be liable under Section 17.1 for any infringement
or
misappropriation: (i) by any product or technology not provided and
licensed by ParkerVision hereunder; or (ii) arising from a combination
with, addition to, or modification of the ParkerVision RF Communications
Technology by anyone other than ParkerVision.
17.3 Sole
Remedy.
THIS
SECTION 17 STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE PARTIES FOR
INFRINGEMENT OR ALLEGATIONS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
OF
THIRD PARTIES FOR ANY PRODUCT OR TECHNOLOGY PROVIDED HEREUNDER, AND IS IN LIEU
OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY IN REGARD THERETO, INCLUDING
BUT NOT LIMITED TO THE WARRANTY AGAINST
INFRINGEMENT SPECIFIED IN THE UNIFORM COMMERCIAL CODE.
18. LIMITATION
OF LIABILITY
18.1 Consequential
Damages.
IN NO
EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR ANY SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (EXCEPT TO THE EXTENT
THAT SUCH LOST PROFITS OR SUCH DAMAGES CONSTITUTE THE MEASURE OF DIRECT DAMAGES
UNDER THE RELEVANT INTELLECTUAL PROPERTY LAWS, EXCEPT FOR A BREACH OF EITHER
PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 12 OF THIS AGREEMENT, AND
EXCEPT FOR AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 17), HOWEVER CAUSED
AND ON ANY THEORY OF LIABILITY, ARISING IN ANY WAY IN CONNECTION WITH THIS
AGREEMENT. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY.
18.2 Damages
Cap.
IN NO
EVENT WILL EITHER PARTY’S LIABILITY ARISING IN ANY WAY IN CONNECTION WITH THIS
AGREEMENT (INCLUDING WITHOUT LIMITATION ANY DAMAGES, SETTLEMENT OR LICENSE
FEES
OWED BY PARKERVISION UNDER SECTION 17 OF THIS AGREEMENT) EXCEED [*]. HOWEVER,
THE FOREGOING LIMITATION OF LIABILITY IN THIS SECTION 18.2 SHALL NOT APPLY
WITH
RESPECT TO (i) EITHER PARTY’S BREACH, OR EXCEEDING THE SCOPE, OF THE LICENSE
RIGHTS GRANTED TO SUCH PARTY UNDER SECTIONS 3.1.1, 6 OR Error!
Reference source not found.
OF THIS
AGREEMENT, AND (ii) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS
UNDER SECTION 12 OF THIS AGREEMENT.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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19. GENERAL
PROVISIONS
19.1 Assignment.
This
Agreement may not be assigned in whole or in part by either
party
without the written consent of the other, which consent will not be unreasonably
withheld, except that [*] or ParkerVision may assign this Agreement in
connection with a merger, reorganization, change of control or sale of all
or
substantially all of its assets or business to which this Agreement
relates.
19.2 Notice.
19.2.1 Unless
otherwise changed by notice in writing from [*] to ParkerVision,
ParkerVision shall serve notice upon [*] as follows:
[*]
Unless
otherwise changed by notice in writing from ParkerVision to [*], [*] shall
serve
notice upon ParkerVision as follows:
CEO
ParkerVision,
Inc.
0000
Xxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
With
copy
to:
CFO
ParkerVision,
Inc.
0000
Xxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
19.2.2 Notice
shall be by regular or priority mail, recognized commercial overnight courier,
hand delivery, facsimile transmission or electronic mail with proof of receipt,
and shall be effective as of the date received.
19.3 Severability.
If any
paragraph or provision of this Agreement shall be deemed void or invalid as
a
matter of law, the remaining paragraphs or provisions of this Agreement shall
nevertheless remain in full force and effect.
19.4 No
Joint Venture, etc.
Nothing
herein shall be deemed to constitute ParkerVision and [*] as partners, joint
venturers or otherwise associated in or with the business of the other. Neither
party shall be liable for any debts, accounts, obligations or other liabilities
of the other party. Neither party is authorized to incur any debts or other
obligations of any kind on the part of or as agent for the other except as
may
be specifically authorized in writing.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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19.5 Waiver.
No
relaxation, forbearance, delay or negligence by any party hereto in enforcing
any of the terms and conditions of this Agreement, or the granting of time
by
any party to another, shall operate as a waiver or prejudice, affect or restrict
the rights, powers or remedies of any party hereto.
19.6 Complete
Agreement.
This
Agreement and the Exhibits attached hereto represent the full and complete
agreement and understanding of the parties hereto with respect to the subject
matter hereof. Any amendment thereof must be in writing and executed by the
parties hereto.
19.7 Governing
Law.
All
questions of law, rights, and remedies regarding any act, event or occurrence
undertaken prior to or pursuant to this Agreement shall be governed by and
construed in accordance with the laws of the State of [*], without regard to
or
application of choice of law rules or principles, and the United States.
The
parties agree that all proceedings, disputes and claims concerning the
interpretation or the performance of this Agreement, including questions
involving its existence, validity and duration shall be subject to the exclusive
jurisdiction of federal courts in the State of [*], and the parties voluntarily
subject themselves to the jurisdiction of such courts.
19.8 Compliance
with Export Control Laws.
Each party agrees to comply with all applicable export and reexport control
laws
and regulations, including the Export Administration Regulations (“EAR”)
maintained by the United States Department of Commerce. Specifically, each
party covenants that it shall not - directly or indirectly - sell, export,
reexport, transfer, divert, or otherwise dispose of any software, source code,
or technology (including products derived from or based on such technology)
received from the other party under this Agreement to any country (or any
individual national thereof) subject to antiterrorism controls or U.S. embargo,
or to any other person, entity, or destination prohibited by the laws or
regulations of the United States, without obtaining prior authorization from
the
competent government authorities as required by those laws and
regulations.
19.9 Multiple
Counterparts.
This
Agreement may be executed in multiple counterparts, each of which will be
considered an original and all of which together will constitute one agreement.
This Agreement may be executed by the attachment of signature pages which have
been previously executed.
19.10 Remedies
Cumulative.
Except
as expressly provided herein, all rights and remedies enumerated in this
Agreement will be cumulative and none will exclude any other right or remedy
permitted herein or by law or in equity.
19.11 Headings.
The
headings contained in this Agreement are inserted for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
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CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
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19.12 Force
Majeure.
No
party shall be responsible or liable to another party for nonperformance or
delay in performance of any terms or conditions of this Agreement due to acts
or
occurrences beyond the reasonable control of the nonperforming or delayed party,
including but not limited to, acts of God, acts of government, wars, riots,
strikes or other labor disputes, fires and floods, provided the nonperforming
or
delayed party provides to the other party written notice of the existence and
the reason for such nonperformance or delay. Notwithstanding the foregoing,
the
other party may terminate this agreement if such nonperformance or delay extends
for a period greater than ninety (90) days.
IN
WITNESS WHEREOF, the parties have executed this Agreement through their duly
authorized representatives as set forth below:
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ParkerVision,
Inc.
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Signature:
/s/
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Signature:
/s/ Xxxxxxx Xxxxxx
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Printed
Name: [*]
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Printed
Name: Xxxxxxx Xxxxxx
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Title:
[*]
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Title:
Chief Executive Officer
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