Exhibit 10.2
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TECHNOLOGY LICENSE AGREEMENT
By and Between
TECHNICAL CONSUMER PRODUCTS, INC.
and
SHANGHAI XXXX XXX ELECTRONIC ENGINEERING CO., LTD. And
SHANGHAI JENSING ELECTRON ELECTRICAL EQUIPMENT CO., LTD.
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Dated as of December 12, 2001
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TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS ..........................................................1
Section 1.1 Other Capitalized Terms.....................................1
ARTICLE II. LICENSES GRANTED......................................................3
Section 2.1 Grant of License............................................3
Section 2.2 Reservation of Rights.......................................3
ARTICLE III. OWNERSHIP.............................................................3
Section 3.1 Licensed Technology.........................................3
Section 3.2 Improvements................................................3
ARTICLE IV. CONFIDENTIALITY AND PROTECTION OF PROPRIETARY RIGHTS..................4
Section 4.1 Confidential Treatment......................................4
Section 4.2 Permitted Disclosure........................................4
Section 4.3 Compelled Disclosure........................................4
ARTICLE V. TERM AND TERMINATION..................................................4
Section 5.1 Term........................................................4
Section 5.2 Termination.................................................5
Section 5.3 Effect of Termination.......................................5
ARTICLE VI. REPRESENTATIONS AND INDEMNIFICATION...................................6
Section 6.1 Representations.............................................6
Section 6.2 Indemnification by Licensees................................7
Section 6.3 Indemnification by Licensor.................................7
Section 6.4 Limitation on Indemnity.....................................8
Section 6.5 Indemnification Procedures..................................8
Section 6.6 Disclaimer of Warranty......................................9
Section 6.7 Limitation of Liability.....................................9
ARTICLE VII. RELATIONSHIP OF THE PARTIES..........................................10
ARTICLE VIII. MISCELLANEOUS........................................................10
Section 8.1 Notices....................................................10
Section 8.2 Assignment.................................................11
Section 8.3 Governing Law..............................................11
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TABLE OF CONTENTS
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(CONTINUED)
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Section 8.4 Arbitration................................................11
Section 8.5 Waiver.....................................................12
Section 8.6 Amendments.................................................12
Section 8.7 Force Majeure..............................................13
Section 8.8 Severability...............................................13
Section 8.9 Headings...................................................13
Section 8.10 Counterparts and Facsimile.................................13
Section 8.11 Translation................................................14
EXHIBIT A Licensed Technology..............................................1
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TECHNOLOGY LICENSE AGREEMENT
THIS TECHNOLOGY LICENSE AGREEMENT (this "AGREEMENT") dated as of December
12, 2001, is made and entered into by and between Technical Consumer Products,
Inc., presently having its principal place of business at 000 Xxxx Xxxxx,
Xxxxxx, Xxxx, Xxxxxx Xxxxxx ("LICENSOR"); and Shanghai Xxxx Xxx Electronic
Engineering Co., Ltd., and Shanghai Jensing Electron Electrical Equipment Co.,
Ltd., presently having their principal places of business at Xx. 00 Xxx Xxxxx
Xxxx, Xxxx, Xx Jing, Xxxx Xxxxx, Shanghai 201601 PRC (jointly and severally,
"LICENSEES" and each individually a "LICENSEE") (Licensor and Licensees are
hereinafter collectively referred to as the "PARTIES" and individually as a
"PARTY").
RECITALS
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WHEREAS, Licensor is in the business of designing, developing and
marketing energy efficient lighting products;
WHEREAS, Licensor is the registered owner of certain patents and
possesses certain proprietary information, processes, special techniques,
know-how, trade secrets and other relevant proprietary manufacturing and
management technology and experience with respect to lighting products;
WHEREAS, prior to the date hereof, Licensees have been manufacturing
for, and supplying products and/or services to, Licensor and its predecessors
and Licensor has been providing proprietary information and technologies to
Licensees to facilitate Licensees' manufacture of products for Licensor; and
WHEREAS, to memorialize the relationship between Licensor and Licensees
that has developed over the years and to set forth the terms of the continuing
relationship between Licensor and Licensees, Licensor and Licensee desire to
enter into this Agreement to provide Licensees will continue to manufacture and
package lighting products exclusively for Licensor, and provide certain other
services pursuant to the terms of this Agreement;
NOW, THEREFORE, in consideration of the recitals and the mutual
covenants of this Agreement, the parties agree as follows:
AGREEMENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1 OTHER CAPITALIZED TERMS. Except as otherwise defined
herein, initial capitalized terms used herein will have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person.
"CHINA" or "PRC" means the People's Republic of China.
"CONFIDENTIAL INFORMATION" means any and all information that is not
generally known to the public or that would constitute a trade secret under the
laws of the State of Ohio and that is (i) disclosed to or otherwise obtained by
any Licensee, whether disclosure is made in writing, by samples, orally,
visually or otherwise, in connection with this Agreement regardless of whether
provided under this Agreement or provided prior to the execution of this
Agreement, or (ii) that is developed by a Licensee or Licensor under, or in
connection with the matters contemplated by, this Agreement, including, without
limitation (A) the Licensed Technology, (B) know-how, prototypes, drawings,
manuals, and software programs, (C) Improvements (excluding Jointly Owned
Technology (as defined in SECTION 3.1)), (D) technical information pertaining to
development work, manufacturing processes, dimensions, clearances, tolerances,
specifications, or materials, (E) operational and performance information and
data, (F) business information pertaining to marketing, pricing, profits,
operating costs, sales information, vendors, customers, employees, forecasts,
accounting records and research and development costs, and (G) such other
information with respect to a Product as is provided to a Licensee to enable a
Licensee to understand the use, nature, operation, performance, maintenance,
sale, marketability and profitability of a Product. Notwithstanding the
foregoing, Confidential Information does not include (i) any information that
was publicly available at the time of disclosure, (ii) any information that
became publicly available after disclosure through no fault of a Licensee, or
(iii) with respect to information that is disclosed to or otherwise obtained by
Licensees, either directly or indirectly, any information that was (y) in
Licensees' possession prior to disclosure, and was not the subject of an earlier
confidential relationship or (z) rightfully acquired by a Licensee from a third
party who was lawfully in possession of such information and was under no
obligation to maintain its confidentiality.
"EFFECTIVE DATE" means the effective date of this Agreement, which date
shall be the date on which this Agreement is registered by the relevant
Examination and Approval Authority.
"EXAMINATION AND APPROVAL AUTHORITY" means the Ministry of Foreign
Trade and Economic Cooperation ("MOFTEC"), or its relevant local division or any
successor government institution or agency empowered to register this Agreement
and any amendments, supplements, modifications or termination hereof.
"IMPROVEMENTS" means any and all enhancements, modifications,
additions, edits, translations, abridgments, condensations, improvements,
updates, adaptations, revisions, or changes to the Licensed Technology and/or
Products that are developed after the Effective Date.
"LICENSED TECHNOLOGY" means the technical information associated with
those patents and patent applications listed in EXHIBIT A attached hereto and
any divisions, continuations, renewals, reissues, and extension thereof, any
counterparts in the Territory to the patents and applications listed in EXHIBIT
A and the technical information associated with such foreign counterparts, as
well as all Improvements and other Technology owned by Licensor or of which
Licensor has a right to use, either existing upon the Effective Date or
hereafter acquired or developed by Licensor, that Licensor may disclose to a
Licensee from time to time.
"PERSON" means an individual, partnership, limited liability company,
corporation, joint stock company, unincorporated organization or association,
trust or joint venture, or a governmental agency or political subdivision
thereof.
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"PRODUCT(S)" means the products produced or capable of being produced
for Licensor from time to time by Licensees or Licensees' permitted contractor
using the Licensed Technology.
"TECHNOLOGY" means all proprietary ideas, formulae, compositions,
technology and know-how, moral rights, manufacturing and production processes
and techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data or information related to lighting
products and accessories, and all copies and tangible embodiments thereof and
intellectual property rights therein, including, without limitation, all patents
and patent applications, including any and all extensions, reissues, divisions,
continuations and continuations-in-part with respect to any of the foregoing
anywhere in the world, product specifications, software programs, data and
related documentation, all copyrightable works in any form or medium now in
existence or hereafter created, copyrights and registrations, applications and
renewals for any of the foregoing.
"TERRITORY" means the People's Republic of China.
ARTICLE II
LICENSES GRANTED
SECTION 2.1 GRANT OF LICENSE. Subject to the provisions of this
Agreement, Licensor hereby grants to Licensees, free of royalty or license fee,
the non-exclusive, non-assignable and non-transferable right to use the Licensed
Technology in the Territory for the Term solely for the design, development,
manufacture and sale of the Products for sale to, or otherwise at the direction
of, Licensor.
SECTION 2.2 RESERVATION OF RIGHTS. All rights in and to the Licensed
Technology not expressly granted in SECTION 2.1 are reserved for Licensor.
Without limiting the foregoing, the rights granted to Licensees under SECTION
2.1 do not include the right to grant any sublicenses, nor does the license
grant permit Licensee to use or otherwise exploit any Jointly-Owned Technology
(as defined herein) in a manner that would use or disclose the Licensed
Technology other than as expressly permitted herein.
ARTICLE III
OWNERSHIP
SECTION 3.1 LICENSED TECHNOLOGY. With the exception of those
Improvements described in SECTION 3.2 to be jointly owned by the Licensor and
Licensees hereunder (the "JOINTLY OWNED TECHNOLOGY"), Licensor solely owns and
retains all right, title, and interest, in and to the Licensed Technology.
SECTION 3.2 IMPROVEMENTS. Inventorship for Improvements shall be
determined in accordance with the patent laws of the U.S. During the Term, each
Licensee shall promptly notify Licensor of any Improvement made, acquired or
developed by it, whether by Licensee alone or together with the Licensor or the
other Licensee, describing in reasonable detail the nature and applications of
such Improvement. Each Licensee's representative that is an inventor in
accordance with the first sentence of this SECTION 3.2 shall jointly own with
Licensor an undivided interest in any such Improvement. It is understood that
such joint ownership shall not
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give any Licensee the right to use the Licensed Technology except as expressly
set forth in SECTION 2.1 and that such Licensee shall remain bound to its
obligation of confidentiality as set forth in ARTICLE IV in connection with such
Licensee's use of any Improvement.
ARTICLE IV
CONFIDENTIALITY AND PROTECTION OF PROPRIETARY RIGHTS
SECTION 4.1 CONFIDENTIAL TREATMENT. Licensees specifically acknowledge
that the Confidential Information, whether or not reduced to writing, derives
independent economic value from not being readily known to or ascertainable by
proper means by others who can obtain economic value from its disclosure or use.
Licensees acknowledge that reasonable efforts have been put forth by Licensor to
maintain the secrecy of the Confidential Information. All Confidential
Information is and will remain the sole property of Licensor. During the Term
and thereafter, Licensee shall keep Confidential Information of Licensor in
strict confidence and, except as otherwise permitted in this ARTICLE IV,
Licensees shall not directly or indirectly disclose, furnish, disseminate, make
available or use such Confidential Information during the Term or thereafter
except as is required to manufacture Products for sale to, or otherwise at the
direction of, Licensor.
SECTION 4.2 PERMITTED DISCLOSURE. Licensees may disclose the Confidential
Information to their employees but only on a basis and to the extent that, in
the commercially reasonable judgment of Licensees such disclosure is necessary
for them to manufacture Products for sale to, or otherwise at the direction of,
Licensor. Licensees will assure that all Persons to whom any information
encompassed within or related to the Confidential Information is disclosed will,
prior to disclosure, keep such information in strict confidence and not directly
or indirectly disclose, furnish, disseminate, make available or use the
Confidential Information during or after the term of this Agreement except as is
required to perform Licensees' obligations under this Agreement.
SECTION 4.3 COMPELLED DISCLOSURE. If a Licensee is required by law or
court order to disclose any Confidential Information, Licensee will (a) notify
Licensor in writing as soon as possible, but in no event less than thirty (30)
calendar days prior to any such disclosure, (b) cooperate with Licensor to
preserve the confidentiality of such information consistent with applicable law,
and (c) use its best efforts to limit any such disclosure to the minimum
disclosure necessary to comply with such law or court order.
ARTICLE V
TERM AND TERMINATION
SECTION 5.1 TERM. The rights and obligations of the Parties under this
Agreement shall commence upon the Effective Date and, unless terminated sooner
under SECTION 5.2, shall continue for a period of ten (10) years thereafter
("INITIAL TERM"). The parties may extend the Term of this Agreement beyond the
Initial Term (or any subsequent extension thereafter) by mutual agreement and
with approval by the relevant Examination and Approval Authority as required.
The period of time from the Effective Date through expiration or termination of
the Initial Term and any extensions thereafter is the "TERM."
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SECTION 5.2 TERMINATION. This Agreement will terminate upon the
earliest of:
(a) expiration of the Initial Term or any mutually agreed and
approved extension thereafter under SECTION 5.1;
(b) automatically, without notice upon, the institution of
voluntary or involuntary proceedings by or against any other
Party in bankruptcy, or under any insolvency law, or for
corporate reorganization, the appointment of a receiver, or
petition for the dissolution of such other Party or an
assignment by such other Party for the benefit of creditors;
(c) upon ninety (90) days prior written notice by any Party, as
a result of any governmental actions, determination,
decision or directive that significantly impairs the
effectiveness of this Agreement, if such action,
determination, decision or directive is not overruled,
changed or otherwise rescinded within ninety (90) days after
receipt of written notice of the intention to terminate this
Agreement;
(d) immediately upon written notice by Licensor, as a result of
a material breach of this Agreement by a Licensee that is
incapable of being cured or not cured within ninety (90)
days after receipt of written notice of the breach from
Licensor;
(e) immediately upon written notice by a Licensee, as a result
of a material breach by Licensor of this Agreement that is
incapable of being cured or not cured within ninety (90)
days after receipt of written notice of the breach from a
Licensee; and
(f) the mutual written agreement of all of the Parties hereto.
Notwithstanding anything in this Agreement to the contrary, upon the
occurrence of any event giving Licensor the right to terminate this Agreement,
Licensor, at its sole election, may terminate this Agreement with respect to one
of the Licensees without affecting the rights and obligations of the other
Licensee under this Agreement. Further, in the event a Licensee ceases to exist,
subject to such Licensees ongoing obligations under this Agreement, this
Agreement will terminate with respect to such Licensee without affecting the
rights and obligations of the other Licensee under this Agreement. In the event
this Agreement terminates with respect to a Licensee but otherwise remains in
effect, all references in this Agreement to Licensees will be deemed to be to
the remaining Licensee.
SECTION 5.3 EFFECT OF TERMINATION.
(a) Any termination of this Agreement, however effected, will
not release any Party from its obligations or duties under
this Agreement that, by their terms and/or expressed
intent, may require performance subsequent to any such
termination (including, without limitation, SECTIONS 2.2,
3.2, 4.1, 4.3, 5.3 and ARTICLES 1, 6 and 8), and all
provisions of this Agreement that set forth such
obligations or duties and such other general or procedural
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provisions that may be relevant to any attempt to enforce
such obligations or duties, will survive any such
termination of this Agreement until such obligations or
duties have been performed or discharged in full.
(b) In addition to the foregoing, in the event of termination
of this Agreement for any reason, unless otherwise agreed
to in writing by the Parties, the Parties will have the
following rights and obligations:
(i) Licensor may, from time to time, ask that Licensees
deliver to Licensor, or its designee, in good order,
all materials and supplies provided by Licensor, as
well as all Licensor tools and tooling, and any
other inventory or other materials used to
manufacture or package the Products. Licensees will
fulfill Licensor's requests as promptly as
practicable. Licensees will not sell, scrap or
otherwise dispose of any materials held for use
under this Agreement without Licensor's prior
written consent. All documentation and other
tangible materials that contain or embody
Confidential Information will be returned or
destroyed, as directed by the owner thereof.
(ii) Licensees will be permitted to use the Licensed
Technology solely as contemplated by this Agreement
to fulfill any continuing obligations under SECTION
5.3(b)(III).
(iii) Any termination of this Agreement, however effected,
will not release any Party from its obligations or
duties under this Agreement with respect to any
Product purchase order issued prior to termination
hereof.
(iv) Each of the Parties shall execute any documentation
reasonably requested by another Party to document
the ownership of Improvements consistent with
SECTION 3.2.
(v) Subject to the underlying rights of Licensor in and
to the Technology and Licensed Technology and
obligations of each Licensee to use the Licensed
Technology solely as permitted in Section 2.1 as
well as subject to its obligation of confidentiality
as set forth in ARTICLE IV, the owners of
Jointly-Owned Technology shall be free to use and
otherwise commercially exploit such Jointly-Owned
Technology without accounting to the other joint
owner(s).
ARTICLE VI
REPRESENTATIONS AND INDEMNIFICATION
SECTION 6.1 REPRESENTATIONS.
(a) Each Licensee represents that it has the requisite skills
and facilities to perform its obligations under this
Agreement.
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(b) Licensees will comply with the United States Foreign
Corrupt Practices Act in connection with all actions under
this Agreement. Without limiting the generality of the
foregoing, each Licensee and its employees and agents will
not offer, pay, promise to pay, give or promise to give any
money or anything of value, directly or through third
parties, to any governmental official, political party,
political official, candidate for political office or to
any person, while knowing or having reason to know that all
or a portion of such money or thing of value will be
offered, paid, given or promised, directly or indirectly,
for purposes of influencing any act or decision of the
foregoing or inducing the foregoing to use his, her or its
influence with a government or instrumentality thereof to
affect or influence any act or decision of such government
or instrumentality. Except for directors appointed by a
Licensee's equity holder that is controlled by any Chinese
township or governmental agency or division, and except for
such other person that a Licensee may be required to
employee under the laws of China, each Licensee represents
and warrants that none of its officers, directors or
employees is an official or employee of a government or of
any governmental agency or instrumentality and that it will
not employ any such individual during the term of this
Agreement.
(c) Each Party represents that: (i) the execution and delivery
by it of this Agreement and the performance by it of its
obligations hereunder have been duly authorized by all
requisite corporate action and will not violate (A) any
provision of any law or regulation applicable to it, (B)
any of its constituent documents, or (C) any provision of
any indenture, agreement or other instrument to which it or
any of its subsidiaries or any of its properties or assets
is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other
instrument, or result in the creation or imposition of any
lien, charge, restriction, claim or encumbrance of any
nature whatsoever upon any of its properties or assets.
SECTION 6.2 INDEMNIFICATION BY LICENSEES. Each Licensee will, jointly
and severally, protect, indemnify, defend and hold harmless Licensor and the
directors, officers, employees, agents, professional representatives and
successors of Licensor, from and against any and all liabilities, damages,
claims, demands, assessments, penalties, fines, judgements, awards, settlements,
taxes, costs, fees and other expenses of any kind (including reasonable
attorneys' fees) (collectively, "DAMAGES") incurred or sustained by them in
connection with any action, suit, claim or proceeding (whether civil or
criminal, at law or in equity) arising out of or related to (A) the breach by a
Licensee or any of its representatives of any covenant, agreement or obligation
contained in this Agreement and (B) the inaccuracy or breach of any
representation or warranty of a Licensee contained in this Agreement.
SECTION 6.3 INDEMNIFICATION BY LICENSOR. Licensor will protect,
indemnify, defend and hold harmless each Licensee and the directors, officers,
employees, agents, professional representatives and successors of Licensees,
from and against any and all Damages incurred or
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sustained by them in connection with any action, suit, claim or proceeding
(whether civil or criminal, at law or in equity) arising out of or related to
(a) the breach by Licensor or any of its representatives of any covenant,
agreement or obligation contained in this Agreement and (b) the inaccuracy or
breach of any representation or warranty of Licensor contained in this
Agreement.
SECTION 6.4 LIMITATION ON INDEMNITY. Notwithstanding SECTION 6.2 and
SECTION 6.3, no Party will be required to indemnify a Person for any Damages
caused by the gross negligence or willful misconduct of the Person seeking to be
indemnified.
SECTION 6.5 INDEMNIFICATION PROCEDURES.
(a) A Party obligated to indemnify a Person hereunder will be
referred to as an "INDEMNIFYING PERSON," and the Person
entitled to indemnification under this Agreement will be
referred to as a "BENEFICIARY."
(b) Promptly after receipt by a Beneficiary of notice of any
claim or the commencement of any action, or upon discovery
of any facts that a Beneficiary believes may give rise to a
claim for indemnification from an Indemnifying Person
hereunder, such Beneficiary will, if a claim in respect
thereof is to be made against an Indemnifying Person under
SECTION 6.2 or SECTION 6.3, notify such Indemnifying Person
in writing in reasonable detail of the claim or the
commencement of such action.
(c) If any such claim will be asserted or brought against an
Indemnifying Person, such Beneficiary will, if a claim in
respect thereof is to be made against the Indemnifying
Person under SECTION 6.2 or SECTION 6.3, notify the
Indemnifying Person in writing of the commencement thereof;
but the failure so to notify the Indemnifying Person (i)
will not relieve it from liability hereunder unless and to
the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the Indemnifying
Person of substantial rights and defenses and (ii) will
not, in any event, relieve the Indemnifying Person from any
obligations to any Beneficiary other than the
indemnification obligation provided above. The Indemnifying
Person will be entitled to appoint counsel of the
Indemnifying Person's choice at the Indemnifying Person's
expense to represent the Beneficiary in any action for
which indemnification is sought (in which case the
Indemnifying Person will not thereafter be responsible for
the fees and expenses of any separate counsel retained by
the Beneficiary or parties except as set forth below);
provided, however, that such counsel will be reasonably
satisfactory to the Beneficiary. Notwithstanding the
Indemnifying Person's election to appoint counsel to
represent the Beneficiary in an action, the Beneficiary
will have the right to employ separate counsel (including
local counsel), and the Indemnifying Person will bear the
reasonable fees, costs and expenses of such separate
counsel if (1) the use of counsel chosen by the
Indemnifying Person to represent the Beneficiary would
present such counsel with a conflict of interest, (2) the
actual or potential defendants in, or targets of,
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any such action include both the Beneficiary and the
Indemnifying Person and the Beneficiary has reasonably
concluded that there may be legal defenses available to it,
which are different from or additional to those available
to the Indemnifying Person, (3) the Indemnifying Person has
not employed counsel reasonably satisfactory to the
Beneficiary to represent the Beneficiary within a
reasonable time after notice of the institution of such
action or (4) the Indemnifying Person authorizes the
Beneficiary to employ separate counsel at the expense of
the Indemnifying Person. An Indemnifying Person will not,
without the prior written consent of the Beneficiaries,
settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder
(whether or not the Beneficiaries are actual or potential
parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of
each Beneficiary from all liability arising out of such
claim, action, suit or proceeding. The indemnity provided
herein will survive the execution, delivery, performance
and termination of this Agreement. The parties agree to
render to each other such assistance as may be reasonably
requested in order to insure the proper and adequate
defense of any such claim or proceeding.
SECTION 6.6 DISCLAIMER OF WARRANTY. LICENSOR AND LICENSEES EXPRESSLY
DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, IN
CONNECTION WITH THE TECHNOLOGY, CONFIDENTIAL INFORMATION AND LICENSED
TECHNOLOGY, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL
MATERIALS AND INFORMATION PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND "WITH ALL
FAULTS." TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR BE
LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND
ARISING OUT OF OR IN CONNECTION WITH THE DEFICIENCY OR INADEQUACY OF THE
LICENSED TECHNOLOGY FOR ANY PURPOSE WHETHER OR NOT KNOWN OR DISCLOSED TO
LICENSEE.
SECTION 6.7 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY
LAW, IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEES OR ANY OTHER PERSON FOR
ANY LOSS OF PROFITS, SALES, BUSINESS, DATA OR ANY OTHER INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR SIMILAR DAMAGES IRRESPECTIVE OF WHETHER
LICENSOR HAS BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD
OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION INDIVIDUALLY
AND IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, THOSE BASED IN BREACH OF
CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION,
AND OTHER TORTS.
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ARTICLE VII
RELATIONSHIP OF THE PARTIES
The relationship between Licensor and Licensees hereunder is intended
to be that of licensor and licensees. Nothing contained herein should be
construed so as to constitute the Parties as partners or joint venturers, nor
any Party as the employee or agent of the other, nor the employees or agents of
any Party as employees or agents of the other. No Party will have any express or
implied right or authority to assume or create any obligation on behalf of or in
the name of the other Party or to bind the other Party to any contract,
agreement or undertaking with any third party.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 NOTICES. All notices required or permitted hereunder will
be in writing and will be deemed effectively given: (a) upon personal delivery
to the Party to be notified, (b) when sent by confirmed telex, facsimile or
e-mail if sent during normal business hours of the recipient, if not, then on
the next business day, (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, to a domestic
address, (d) ten (10) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid, to an international address,
(e) one day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt, to a
domestic address or (f) three (3) days after deposit with an internationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt, to an international address. All communications will be
addressed as follows:
If to Licensor: Technical Consumer Products, Inc.
000 Xxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxx
(o): (000) 000-0000
(f): (000) 000-0000
E-mail: xxxx@xxxxxxxxxx.xxx
If to Licensees: Xx. 00 Xxx Xxxxx Xxxx, Xxxx
Xx Jing
Xxxx Xxxxx
Shanghai 201601, China
Attention: Xxxxxxx Xxx
(o): 00-00-0000-0000
(f): 00-00-0000-0000
E-mail: xxxxxxx@xxxxxx.xx.xx
or to such other address as the Party to receive notice may designate by notice
given as provided herein.
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SECTION 8.2 ASSIGNMENT. Neither this Agreement nor any interest herein
is assignable by a Licensee (whether through assigning this Agreement or through
a change of control of such Party) without the prior written consent of Licensor
and neither this Agreement nor any interest herein is assignable by Licensor
(whether through assigning this Agreement or through a change of control of such
Party) without the prior written consent of the other Parties, except that,
without such consent, Licensor may assign this Agreement (i) to any direct or
indirect subsidiary of Licensor, or (ii) as security for money borrowed so long
as any assignment upon foreclosure by the secured party is in compliance with
this SECTION 8.2. Subject to the preceding sentence, this Agreement will be
binding upon and will inure to the benefit of the respective successors and
assigns of the Party.
SECTION 8.3 GOVERNING LAW. Except as specifically provided otherwise,
this Agreement will be governed by, and interpreted in accordance with, the laws
of the State of Ohio without giving effect to its principles of conflicts of
laws. If any of the provisions of this Agreement are finally determined to be
illegal or unenforceable under the laws of the State of Ohio, then the Parties
will use their best efforts to reform such provision(s) to give effect to the
fullest extent possible to the Parties' intentions and to take such other
actions as may be necessary or desirable in connection therewith.
SECTION 8.4 ARBITRATION.
(a) Except as specifically provided otherwise, all disputes
arising in connection with this Agreement will be finally
settled under the Rules of Arbitration of the International
Chamber of Commerce by three arbitrators appointed in
accordance with the Rules. The arbitration will be
conducted in the English language. The seat of the
arbitration will be the Singapore International Arbitration
Centre in Singapore (the "SIAC").
(b) Except as otherwise set forth herein, the arbitration will
be conducted by three arbitrators. The Party initiating the
arbitration (the "CLAIMANT") will appoint its arbitrator in
its request for arbitration (the "REQUEST"). The other
Party (the "RESPONDENT") will appoint its arbitrator within
thirty (30) days of receipt of the Request and will notify
the Claimant of such appointment in writing. If the
Respondent fails to appoint an arbitrator within such
thirty-day period, the SIAC will appoint an arbitrator on
its behalf in accordance with the rules of the SIAC.
Otherwise, the two arbitrators appointed by the Parties
will appoint a third arbitrator within thirty (30) days
after the Respondent has notified the Claimant of the
appointment of the Respondent's arbitrator. When the
arbitrators appointed by the Claimant and the Respondent
have appointed a third arbitrator and the third arbitrator
has accepted the appointment, the two arbitrators will
promptly notify the Parties of the appointment of the third
arbitrator. If the two arbitrators appointed by the Parties
fail or are unable so to appoint a third arbitrator or so
to notify the Parties, or if the Parties agree to use a
sole arbitrator, then the appointment of the third
arbitrator or the sole arbitrator, as the case may be, will
be made by the SIAC, which
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will promptly notify the Parties of such appointment. The
third arbitrator will act as chair of any three-arbitrator
panel.
(c) The arbitral award will be in writing and, unless the
Parties agree otherwise, will state the reasons upon which
it is based. The award will be final and binding on the
Parties. The award may include an award of costs, including
reasonable attorneys' fees and disbursements. Judgment upon
the award may be entered by any court having jurisdiction
thereof or having jurisdiction over the parties or their
assets. Nothing contained in this SECTION 8.4 will prevent
or be construed to prevent either Party from seeking a
temporary restraining order or a preliminary or permanent
injunction or any other form of interim, provisional or
equitable relief in any court of competent jurisdiction.
(d) By execution and delivery of this Agreement, each Party
accepts and consents to the jurisdiction of the aforesaid
arbitration panel and, solely for purpose of the
enforcement of an arbitral award under this SECTION 8.4, to
the jurisdiction of any court of competent jurisdiction,
for itself and in respect of its property, and waives in
respect of both itself and its property any defense it may
have as to or based on sovereign immunity, jurisdiction,
improper venue or inconvenient forum. Each Party hereby
irrevocably consents to the service of any process or other
papers by the use of any of the methods and to the
addresses set for the giving of notices in SECTION 8.1.
Nothing herein will affect the right of any Party to serve
such process or papers in any other manner permitted by
law.
(e) Each of the Parties hereto acknowledges that, in view of
the uniqueness of the transactions contemplated by this
Agreement, a material breach or material failure to comply
with such Party's obligations under this Agreement to the
other Parties hereto would cause irreparable harm to such
other Parties and such other Parties would not have an
adequate remedy at law for money damages. Therefore, each
of the Parties hereto agrees that the Parties hereto are
entitled to seek specific performance and/or injunctive
relief without the posting of bond or other security in
addition to any other remedy to which it may be entitled
hereunder or at law or in equity, in any court of competent
jurisdiction against any such breach or noncompliance. All
remedies provided for herein are cumulative, and, except as
provided otherwise in this Agreement, the exercise of any
particular remedy does not limit or preclude the exercise
of any other available remedy.
SECTION 8.5 WAIVER. No waiver of any right under this Agreement will be
binding unless agreed to in writing by the waiving Party, and a waiver as to any
breach or failure to perform will not constitute a waiver as to future
performance.
SECTION 8.6 AMENDMENTS. This Agreement cannot be changed or amended in
whole or in part except by a writing signed by all of the Parties hereto.
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SECTION 8.7 FORCE MAJEURE. If the performance of this Agreement or of
any obligation hereunder is prevented, restricted, or interfered with as a
result of:
(a) fire, explosion, breakdown of machinery, plant failure,
strike, lockout, labor dispute, casualty or accident, lack
or failure in whole or in part of transportation
facilities, epidemic, land slides, lightening, earthquakes,
cyclone, flood, drought, lack or failure in whole or in
part of sources of supply or labor, raw materials or power;
or
(b) war, revolution, civil commotion, acts of public enemies,
blockades or embargo; or
(c) any law, order, proclamation, regulation, ordinance, demand
or requirement of any government or any subdivision,
authority or representative of any such government; or
(d) any other act whatsoever, whether similar or dissimilar to
those enumerated, beyond the reasonable control of a Party
hereto;
then the Party so affected, upon giving prompt written notice to the other
Parties, will be temporarily excused from such performance to the extent of such
prevention, restriction or interference; provided that the Party so affected
uses its reasonably best efforts to avoid or remove such cause of
non-performance and will make up, continue and complete full performance
hereunder with the utmost dispatch whenever such cause is removed; provided,
further, that the settlement of strikes, lockouts or other labor disputes will
be entirely within the discretion of the Party having the difficulty, and that
the above requirement that any force majeure be remedied by the exercise of
reasonable best efforts will not require the settlement of strikes or lockouts
by acceding to the demands of the opposing Party when such course is unavoidable
in the discretion of the Party having the difficulty.
SECTION 8.8 SEVERABILITY. The illegality, invalidity or
unenforceability of any part of this Agreement does not affect the legality,
validity or enforceability of the remainder of this Agreement.
SECTION 8.9 HEADINGS. The descriptive headings used in this Agreement
are for convenience only and will be disregarded in interpreting it.
SECTION 8.10 COUNTERPARTS AND FACSIMILE. This Agreement may be executed
in any number of counterparts, each of which will be deemed to be an original
and all of which taken together will constitute but one and the same instrument.
Transmission of facsimile copies of an executed counterpart of a signature page
of this Agreement will have the same effect as delivery of the manually executed
counterpart of this Agreement.
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SECTION 8.11 TRANSLATION. This Agreement has been executed in the
English language. For the convenience of the Parties, one or more Chinese
translations of this Agreement may be prepared. Notwithstanding the preparation
or existence of any such Chinese translations, the English language version of
this Agreement will be controlling.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each Party has caused this Agreement to be executed
by its duly authorized officer or officers as of the date first above written.
LICENSOR:
--------
TECHNICAL CONSUMER PRODUCTS, INC.
By: /s/ Xxxxx Xxx
---------------------------------
Name:
Title:
Nationality:
LICENSEES
SHANGHAI XXXX XXX ELECTRONIC
ENGINEERING CO., LTD.
By: /s/ Xxx Xxxx Yuan
----------------------------------
Name: Xxx Xxxx Yuan
Title: Chairman of the Board
SHANGHAI JENSING ELECTRON
ELECTRICAL EQUIPMENT CO., LTD.
By: /s/ Xiang Yong Fan
----------------------------------
Name: Xiang Yong Fan
Title: Chairman of the Board
Nationality: Chinese
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