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EXHIBIT 10.15
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Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 230.406
PACKETVIDEO-SANYO AGREEMENT
THIS PACKETVIDEO-SANYO AGREEMENT ("Agreement") is made and
entered into as of February 24, 2000 ("Effective Date") by and between
PACKETVIDEO CORPORATION, a Delaware Corporation with its principal offices at
00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 ("PacketVideo"), and
SANYO NORTH AMERICA CORPORATION, a corporation with a division known as SANYO
MULTIMEDIA CENTER USA having offices at 0000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxx, XX 00000 ("Sanyo").
WHEREAS, PacketVideo has developed certain software ("Software")
and know-how related to the optimum hardware and software design for wireless
multimedia communication terminals;
WHEREAS, Sanyo wishes to engage PacketVideo to develop
standards-based wireless video-display devices ("Devices"), as set forth in this
Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and
the covenants contained herein, the parties hereby agree as follows:
1. ENGINEERING SERVICES.
1.1 GENERAL. In order to accelerate Sanyo's development and commercial
shipment of the Device, PacketVideo will use commercially reasonable efforts to
deliver to Sanyo the specific engineering deliverable(s) ("Deliverable(s)") set
forth on Exhibit A according to the schedule set forth therein. Exhibit A may be
amended or modified by supplementary addendums agreed to by both parties hereto
and attached hereto. PacketVideo will provide such resources and utilize such
employees and/or consultants as it deems necessary to carry out such work. Sanyo
agrees to provide PacketVideo with such information, materials, and technology
owned or controlled by Sanyo as PacketVideo reasonably requires and as Sanyo
concurs, is required, in order to create and deliver the Deliverable(s). The
manner and means used by PacketVideo to perform is obligations under this
Agreement are in the sole discretion and control of PacketVideo. All work will
be performed at PacketVideo's facilities except as may be reasonably required by
the nature of the work.
1.2 ACCEPTANCE OF DELIVERABLES BY SANYO. Sanyo will test each
Deliverable [...***...] within [...***...] days of receipt ("Testing Period") to
verify that each Deliverable conforms to the mutually agreed upon requirements.
("Requirements") in all material respects. If Sanyo notifies PacketVideo in
writing within [...***...] days after completion of the Testing Period (the
"Notice Period") that the Deliverables conform to the Requirements in all
material respects, or if Sanyo fails to respond in writing within the Notice
Period, Sanyo will be deemed to have accepted the Deliverables. If, however,
Sanyo reasonably determines that the Deliverables do not conform to the
Requirements in all material respects, Sanyo will notify PacketVideo in writing,
and PacketVideo will have [...***...] days (the "Correction Period") in which to
correct the Deliverables and to resubmit the Deliverables to Sanyo for
additional testing. If, upon conclusion of such additional testing, Sanyo again
reasonably determines that the Deliverables do not conform to the Requirements
in all material respects, then the parties will meet and negotiate in good faith
to extend the Correction Period in order to allow PacketVideo to correct and
resubmit the Deliverables. If the parties are unable to reach an agreement
within [...***...] days regarding such an extension of the Correction Period,
then Sanyo will have the right to terminate this Agreement in accordance with
the terms of Section 6. Sanyo agrees not to use any Deliverable other than in a
testing environment prior to acceptance of such Deliverable. The day on which
Sanyo accepts (or is deemed to have accepted) the Deliverables shall be referred
to as the "Deliverable Acceptance Date." Notwithstanding any other provision of
this Agreement, and so long as PacketVideo makes a good faith effort to timely
provide the Deliverables in accordance with the Requirements, Sanyo agrees that
this Section 1.2 represents Sanyo's sole and exclusive remedy with respect to
failure of the Deliverables to conform to the Requirements.
2. PACKETVIDEO LICENSES.
2.1 DEVELOPMENT. Subject to the terms and conditions of this Agreement,
PacketVideo hereby grants Sanyo a nonexclusive, royalty-free, worldwide license
(with the right to grant sublicenses approved in advance by PacketVideo) under
all PacketVideo IP Rights to (1) use the Software at Sanyo's facilities in the
Territory for development, testing, demonstration and training of its personnel
in furtherance of the Agreement and (2) use and modify the Deliverables
(including any software in the Deliverables other than the Software) at Sanyo's
facilities in the Territory for development, testing, demonstration and training
of its personnel in furtherance of the Agreement. With respect to any Sanyo IP
Rights embodied in the Deliverables, and subject to the terms and conditions of
this Agreement, Sanyo hereby grants to PacketVideo a nonexclusive royalty-free
license to use and publicly display by all means now known or later developed,
such rights in the Territory in connection with the
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SANYO AGREEMENT
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Deliverables. For purposes of this Agreement, "Territory" shall mean those
countries that are signatories to the Berne Convention on the Protection of
Literary and Artistic Works and/or the Universal Copyright Convention, along
with additional countries specifically authorized in writing by PacketVideo
2.2 DISTRIBUTION. Subject to Sanyo's acceptance of the Deliverables and
payment of the fees set forth herein, effective as of the [...***...]
Deliverable Acceptance Date, during the term of this Agreement PacketVideo
hereby grants Sanyo a nonexclusive [...***...] license, with the right to grant
sublicenses approved in advance by PacketVideo, to make, have made, use, market,
sell, offer for sale, import, export, reproduce and distribute through
distribution channels selected by Sanyo the Deliverables (including any software
in the Deliverables other than the Software and any modifications thereof) and
the Software in object code format in the Territory solely as an embedded
component of Devices.
2.3 DOCUMENTATION AND CONTRACT MANUFACTURE. Upon completion of the final
documentation ("Documentation") for the Device, and subject to the foregoing
conditions, PacketVideo grants to Sanyo a nonexclusive, license to reproduce the
Documentation in the Territory solely: (i) to distribute the End User portions
of the Documentation with the Device, (ii) for use by Sanyo and its resellers in
the in connection with the support of the Device and (iii) to make, use, test,
develop or have the Device(s) made. Except as expressly authorized in writing by
PacketVideo, Sanyo may sublicense its right to distribute the Software and
Documentation only to third party contract manufacturers of the Device who agree
in writing to be bound by the terms of this Agreement, including, but not
limited to, confidentiality restrictions substantially similar to those
contained herein.
2.4 TRADEMARK. PacketVideo hereby grants to Sanyo a non-exclusive,
non-transferable royalty-free license to use the applicable PacketVideo
trademarks and logos ("Trademarks") in the Territory in connection with the
marketing and promotion of the Devices. Sanyo agrees to cooperate with
PacketVideo in facilitating PacketVideo's monitoring and control of the nature
and quality of the Device(s), and to supply PacketVideo with specimens of use of
the Trademarks upon request. Sanyo understands and agrees that the use of any
Trademark in connection with this Agreement shall not create any right, title or
interest in or to the use of the Trademark and that all such use and goodwill
associated with the Trademark will inure to the benefit of PacketVideo. Sanyo
agrees not to register or attempt to register any Trademarks.
2.5 RESTRICTIONS. Except as necessary in order to carry out the
development activities hereunder, Sanyo shall not transmit or distribute (nor
shall it sublicense others to transmit or distribute) the Software (or any
portion thereof) via the Internet or any other dial-up, remote access, or
on-line service unless specifically authorized in writing by PacketVideo. Sanyo
agrees not to remove or obliterate any copyright, trademark or proprietary
rights notices of PacketVideo or its suppliers from the Software or
Documentation and shall reproduce all such notices on all authorized copies of
the Software or Documentation. Sanyo shall not modify (except for sample files
and other software in source code format included as part of the standard
PacketVideo developer's toolkit), translate, disassemble, decompile, reverse
engineer or cause or allow discovery of the source code of the Software in any
way. In addition, and along with any Sanyo copyright notice provided on the
Device, Sanyo shall include a copyright notice in a start-up or "About" screen
of the Device (or equivalent) indicating that the Software is a product of
PacketVideo Corporation.
3. ADDITIONAL COMMERCIAL TERMS.
3.1 PAYMENT. [...***...]
3.2 TAXES. The amounts payable to PacketVideo set forth on Exhibit A are
exclusive of any sales, or use or other taxes or governmental charges. Sanyo
shall be responsible for payment of all such taxes or charges except for any
taxes based solely on PacketVideo's net income. If Sanyo is required to pay any
taxes based on this Section 3.2, Sanyo shall pay such taxes with no reduction or
offset in the amounts payable to PacketVideo hereunder except for taxes based
solely on PacketVideo's net income.
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SANYO AGREEMENT
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3.3 MOST FAVORED LICENSEE PRICING. In the event that PacketVideo offers
software substantially similar to the Software to any other customer at prices
lower than those charged to Sanyo, PacketVideo shall notify Sanyo in writing of
such prices, and extend to Sanyo such prices retroactively effective from the
date of offer thereof to such other customer. Notwithstanding the foregoing, in
the event that such other customer's more favorable prices result from different
terms (including, without limitation, product features, shipment volumes,
duration of contract, support and maintenance terms and co-marketing
obligations), Sanyo agrees that Sanyo shall, upon notice and the provision of
reasonable detail by PacketVideo, agree to amend this Agreement to reflect terms
substantially similar to such different terms prior to, and as a condition of,
receiving such prices. [...***...]
3.4 SOFTWARE ORDERS, RECORDS AND REPORTS. Sanyo shall keep complete and
accurate records relating to its commercial use and distribution of the Software
in accordance with generally accepted accounting principles and standard
business practices in existence at Sanyo. Within thirty (30) days after each
calendar quarter, Sanyo shall provide PacketVideo with a written sales report in
a form agreed to by the parties. To assure compliance with the payment and
reporting requirements of this Agreement, PacketVideo's independent auditors
and/or accountants may inspect Sanyo's applicable records from time to time, but
no more frequently than once per year. In the event any inspection of Sanyo's
records indicates an underpayment of an amount equal to or greater than five
percent (5%) of any amounts due hereunder, Sanyo shall promptly reimburse
PacketVideo for all reasonable expenses of such auditors and/or accountants
associated with such inspection along with the deficient amounts; otherwise, all
expenses of PacketVideo and such auditors and/or accountants associated with any
such inspection shall be borne exclusively by PacketVideo. PacketVideo agrees to
maintain all information obtained from any such inspection in strict confidence
and not to use it for any purpose other than to verify the amounts due
hereunder.
4. INTELLECTUAL PROPERTY OWNERSHIP, RIGHTS AND RESTRICTIONS.
4.1 DEFINITION. As used herein, the term "IP Rights" means recognized
protectable intellectual property including: patents and applications,
copyrights, trademarks, trade secrets, mask works, industrial design rights,
know how, methodologies, and any and all other legal rights protecting
intangible proprietary information. Examples of inventions, innovations, and
developments that may contain protectable IP Rights include: formulas,
algorithms, methods, processes, databases, computer networks and their parts,
computer languages, scripts, computer programs and their documentation, encoding
techniques, articles, writings, works of authorship, and improvements.
4.2 OWNERSHIP AND TITLE.
(a) IP RIGHTS. All IP Rights that are owned or controlled by a
party at the commencement of this Agreement shall remain under the ownership or
control of such party throughout the term of this Agreement and thereafter.
PacketVideo shall retain ownership of the Software and all PacketVideo IP Rights
embodied or contained in the Deliverables. Sanyo shall retain ownership of all
Sanyo IP Rights, if any, embodied in the Deliverables. Any new specifically,
identifiable inventions (including any IP Rights therein) within the scope of
the Deliverables that are invented as a result of the contribution of both
parties during the term of this Agreement shall be jointly owned by the parties
and each party shall have the unrestricted right to use and otherwise exploit
such technology without a duty to account to the other party. All rights not
expressly granted hereunder are reserved by the parties.
(b) DELIVERABLES. PacketVideo shall transfer title and ownership
to Sanyo of the physical embodiment of the Deliverables (except for any Software
and IP Rights contained therein) as of the applicable Deliverable Acceptance
Date.
4.3 INDEMNIFICATION. Each party represents and warrants that it has the
ability to enter into this Agreement. Each party (the "Indemnifying Party")
agrees to indemnify, defend and hold the other party, its affiliates, successors
and assigns (the "Indemnified Party") harmless from all settlements, costs
(including reasonable attorneys fees) and direct damages awarded to a third
party arising out of a claim that any software or materials provided by the
Indemnifying Party hereunder infringes or misappropriates any intellectual
property right of any third party under the law of any country in the Territory;
provided, however, that neither party shall be responsible for the normative
portions of the 3G standard that are required for interoperability purposes
(e.g. ISO MPEG-4, GSM-AMR, H.223 Annex B, H.245 Version 6. etc). Such obligation
is subject to the following conditions (i) the Indemnified Party shall notify
the Indemnifying Party in writing within thirty (30) days of the date it first
becomes aware of a claim; (ii) the Indemnifying Party has sole control of the
settlement, compromise, negotiation and defense of any such action; and (iii)
the Indemnified Party gives the Indemnifying Party all reasonably available
information, assistance and authority, at the Indemnifying Party's expense, to
enable the Indemnifying
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SANYO AGREEMENT
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Party to do so. THE FOREGOING STATES THE ENTIRE AND EXCLUSIVE OBLIGATION OF
EITHER PARTY RELATING TO ANY ALLEGED INFRINGEMENT OF PATENTS, COPYRIGHTS,
TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES TO THIS
AGREEMENT.
4.4 NO DUTY TO COMMERCIALIZE; RIGHT TO CONTINUE DEVELOPMENT. Sanyo shall
determine in its sole and exclusive discretion whether or not Sanyo wishes to
commercialize, to continue commercializing or to stop commercializing Devices
arising out of this Agreement. The foregoing notwithstanding, each party
acknowledges that other party has extensive expertise, experience, and
proprietary technology in the field of multimedia communication software and
hardware ("Field"). Subject to each party's compliance with the confidentiality
provisions of this Agreement, nothing in this Agreement will restrict or limit
either party at any time from developing, using, marketing, licensing, offering
for sale, or selling products and services that are similar or related to the
Device or the Deliverables. Each party acknowledges that the employees of the
other party may be under contractual obligations to disclose any inventions,
innovations or developments made during the term of their employment, including
any inventions or innovations that arise and are conceived by such employees in
connection with performance of its obligations under this Agreement.
5. WARRANTIES AND SOFTWARE MAINTENANCE.
5.1 DELIVERABLE WARRANTY. PacketVideo warrants to Sanyo that for a
period of [...***...] days from the Deliverable Acceptance Date that the
Deliverables shall perform substantially in accordance with the Requirements.
Sanyo's sole and exclusive remedy shall be for PacketVideo to use its best
efforts to correct the Deliverables. This warranty shall not apply to
Deliverables that have been modified by Sanyo or by any party other than
PacketVideo. EXCEPT AS SET FORTH IN THIS SECTION, PACKETVIDEO AND ITS SUPPLIERS
MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PacketVideo does not
warrant that use of the Deliverables will be error-free, secure or
uninterrupted. The Deliverables are warranted only to Sanyo, and Sanyo shall not
extend any warranties for or on behalf of PacketVideo or PacketVideo Licensors
to End Users, Resellers or any other third parties.
5.2 SOFTWARE WARRANTY. Effective upon the first commercial shipment, if
any, of Devices, PacketVideo warrants to Sanyo that for a period of [...***...]
from delivery of commercial Software to Sanyo for shipment that the Software
shall substantially perform in accordance with PacketVideo's then-current
Documentation. Sanyo's sole and exclusive remedy shall be for PacketVideo to
correct the Software or, if PacketVideo is unable to provide a reasonable
work-around for the error, PacketVideo shall accept the return of the defective
Software in Sanyo's possession and PacketVideo shall refund the license fee paid
by Sanyo for such defective Software. This warranty shall not apply to any
Software which has been modified by Sanyo or by any party other than
PacketVideo, or which has been improperly installed or used in any manner other
than as authorized under this Agreement. EXCEPT AS SET FORTH IN THIS SECTION,
PACKETVIDEO AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. PacketVideo does not warrant that use of the SOFTWARE will be
error-free, secure or uninterrupted. The Software is warranted only to Sanyo,
and Sanyo shall not extend any warranties for or on behalf of PacketVideo or
PacketVideo Licensors to End Users, Resellers or any other third parties.
5.3 SOFTWARE SUPPORT. Following first commercial shipment, if any, of
Devices, Sanyo shall receive technical assistance, support and maintenance on
PacketVideo's then-current standard terms and conditions approved in advance in
writing by Sanyo. Sanyo acknowledges its responsibility to provide first line
support to end users and resellers. Any such requests directed to PacketVideo
may be referred to Sanyo. All items delivered by PacketVideo to Sanyo in
providing such support, including any error corrections and updates shall be
subject to all terms and conditions of this Agreement.
6. TERM AND TERMINATION
6.1 TERM. This Agreement will commence on the Effective Date and, unless
terminated earlier pursuant to the terms of this Agreement or extended by the
mutual written agreement of the parties, shall continue in force until
[...***...].
6.2 TERMINATION. This Agreement may be terminated (a) by either party
upon thirty (30) days' prior written notice if the other party materially
breaches any term hereof and the breaching party fails to cure such breach
within the 30-day period; (b) [...***...]
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SANYO AGREEMENT
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[...***...] (d) by either party in the event of bankruptcy proceedings involving
the other party to the Agreement; and (e) by either party in the event of an
Acquisition (as defined in Section 9.10 below) of the other party. [...***...].
6.3 EFFECT OF TERMINATION. Each party's obligations, as appropriate,
under Sections 2.4, 3, 4, 5 (disclaimer only), 6, 7, 8 (except for 8.4) and 9 of
the Agreement will survive termination or expiration of the Agreement. Within
thirty (30) days after termination of this Agreement for any reason, PacketVideo
will submit to Sanyo an itemized invoice for any fees or expenses properly due
and owing under this Agreement prior to the date of such termination and Sanyo
shall pay the amount invoiced in accordance with Section 3 for those
Deliverables which have been accepted by Sanyo and for which PacketVideo has
received full payment as set forth on Exhibit A. Sanyo will retain the right to
use for internal development purposes such accepted Deliverables and all other
licenses granted by the parties hereunder will immediately terminate. In such
event, Sanyo shall immediately cease using, marketing, reproducing and
distributing the Software and shall return all copies thereof to PacketVideo,
along with a certification signed by an officer of Sanyo under penalty of
perjury stating that no copies have been retained by Sanyo other than as
provided herein; provided, however, that (subject to payment of the applicable
royalties hereunder in accordance with Section 3.3 herein) Sanyo shall have the
right to distribute all copies of the Software which are then installed on
Devices in its inventory on the effective date of termination; and Sanyo shall
have the right to continue to use the Software internally at no additional
charge upon execution of PacketVideo's then-current applicable end user
agreement to support end users of Devices.
7. LIMITATIONS ON LIABILITY
7.1 DISCLAIMER. PACKETVIDEO'S TOTAL, CUMULATIVE LIABILITY TO SANYO WITH
RESPECT TO THIS AGREEMENT AND THE DELIVERABLES AND THE SOFTWARE, AND FOR ANY AND
ALL CAUSES OF ACTION UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT OR TORT
OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY SANYO TO
PACKETVIDEO HEREUNDER. IN NO EVENT WILL PACKETVIDEO BE LIABLE TO CUSTOMER FOR
LOSS OF PROFITS, INTERRUPTION OF BUSINESS OR ANY OTHER SPECIAL, CONSEQUENTIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED, WHETHER FOR
BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE, EVEN IF PACKETVIDEO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
7.2 LIMITATION ON CLAIMS. No action, regardless of form, arising from
this Agreement may be brought by either party more than one year after the cause
of action has accrued.
8. CONFIDENTIALITY AND PUBLICITY
8.1 DEFINITION. By virtue of this Agreement, each party hereto may have
disclosed or will disclose to the other party information concerning the subject
matter of this Agreement that is confidential and otherwise proprietary. Subject
to the exceptions listed below, a party's "Confidential Information" shall be
defined as information disclosed by the party to the other party pursuant to
this Agreement and clearly marked or otherwise clearly designated as
"confidential" or the equivalent. Without limiting the foregoing, and without
regard to marking or labeling, Confidential Information shall include the
specifications and requirements for the Deliverables. However, a party's
Confidential Information will not include any information that: (a) is or
becomes a part of the public domain through no wrongful act or omission of the
other party; or (b) was in the other party's lawful possession prior to the
disclosure and had not been obtained by the other party either directly or
indirectly from the disclosing party; or (c) is lawfully disclosed to the other
party by a third party without restriction on disclosure; or (d) is
independently developed by the other party by employees or agents without access
to the disclosing party's Confidential Information.
8.2 NONDISCLOSURE AND NONUSE. Beginning on the Effective Date and ending
[...***...] years after receipt thereof, each party agrees to hold the other
party's Confidential Information in strict confidence, not to disclose such
Confidential Information to third parties not authorized by the disclosing party
to receive such Confidential Information, and not to use such Confidential
Information for any purpose except as expressly permitted hereunder. "Third
parties" in this context shall not include Sanyo's parent and affiliates who
agree to maintain the confidentiality of such Confidential Information on the
same basic terms and conditions as set forth herein. Each party agrees to take
reasonable steps to protect
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the other party's Confidential Information to ensure that such Confidential
Information is not disclosed, distributed or used in violation of the provisions
of this Agreement. The foregoing prohibition on disclosure of Confidential
Information will not apply to the extent certain Confidential Information is
required to be disclosed by the receiving party (a) as a matter of law or by
order of a court, provided that the receiving party uses reasonable efforts to
provide the disclosing party with prior notice of such obligation to disclose
and reasonably assists in obtaining a protective order therefore and (b) in
connection with performing tasks pursuant to the terms and conditions of this
Agreement.
8.3 RESIDUALS. As used herein, the term "Residuals" means information in
non-tangible form that is or may be inadvertently retained in the unaided
memories of persons who have had rightful access to the Confidential Information
of a party, including ideas, concepts, know-how or techniques contained therein
but not including information relating to personnel or financial information.
Each party acknowledges and agrees that the other party may utilize for any
purpose any Residuals resulting from rightfully performing its obligations
hereunder.
8.4 PUBLICITY. Notwithstanding anything contained in this Section 8, the
parties will cooperate on the public relations and co-marketing activities
described on Exhibit A and each party shall have the right to engage in the
activities set forth therein.
9. GENERAL
9.1 INDEPENDENT CONTRACTOR. Each party is an independent contractor, and
nothing contained in this Agreement will be construed to create or imply a joint
venture, partnership, principal-agent or employment relationship between the
parties. Neither party may take any action or permit any action to be taken on
its behalf which purports to be done in the name of or on behalf of the other
party and neither party will have any power or authority to bind the other party
to assume or create any obligation or responsibility express or implied on the
other party's behalf or in its name.
9.2 NOTICES. All notices, consents, waivers, and other communications
intended to have legal effect under this Agreement must be in writing, must be
delivered to the other party at the address set forth at the top of this
Agreement by personal delivery, certified mail (postage pre-paid), or a
nationally recognized overnight courier, and will be effective upon receipt (or
when delivery is refused). Any such notices sent to PacketVideo must be
addressed to the attention of its General Counsel. Each party may change its
address for receipt of notices by giving notice of the new address to the other
party.
9.3 INJUNCTIVE RELIEF. It is understood and agreed that, notwithstanding
any other provision of this Agreement, any material breach of this Agreement
will cause irreparable damage for which recovery of money damages would be
inadequate, and that the non-breaching party will therefore be entitled to seek
timely injunctive relief to protect such party's rights under this Agreement in
addition to any and all remedies available at law.
9.4 FORCE MAJEURE. The parties hereto shall not be liable for any loss,
damage, or penalty arising from delay due to acts of God, riot, fires, strikes,
legal restrictions, governmental actions, or any other casualty or cause beyond
the control of the parties hereto.
9.5 EXPORT LAWS AND REGULATIONS. The parties agree to adhere to
applicable U.S. Export Laws and Regulations and that absent any required
authorization for the U.S. Department of Commerce's Bureau of Export
Administration ("BXA"), they will not knowingly export or re-export (as defined
in Part 772 of the BXA Regulations), directly or indirectly, through their
affiliates, licensees, employees or subsidiaries, any of the Deliverables or
Confidential Information (or any product, process, or service resulting directly
therefrom) to any country restricted by U.S. law or government order.
9.6 GOVERNING LAW AND VENUE. This Agreement will be governed by and
interpreted in accordance with the federal and state laws of the State of
California as such laws apply to contracts made between California residents to
be performed entirely within California. Any suit, action or proceeding arising
from or relating to this Agreement must be brought in a federal court in the
Southern District of California or in state court in San Diego County,
California, and each party irrevocably consents to the jurisdiction and venue of
any such court in any such suit, action or proceeding.
9.7 LEGAL FEES. If any dispute arises between the parties with respect
to the matters covered by this Agreement which leads to a proceeding to resolve
such dispute, each party in such proceeding shall pay its own attorneys' fees,
expert witness fees and out-of-pocket costs incurred in connection with such
proceeding.
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9.8 WAIVER. The failure of either party to require performance by the
other party of any provision of this Agreement will not affect the full right to
require such performance at any time thereafter; nor will the waiver by either
party of a breach of any provision of this Agreement be taken or held to be a
waiver of the provision itself.
9.9 SEVERABILITY. If any provision of this Agreement is unenforceable or
invalid under any applicable law or is so held by applicable court decision,
such unenforceability or invalidity will not render this Agreement unenforceable
or invalid as a whole, and such provision will be changed and interpreted so as
to best accomplish the objectives of such unenforceable or invalid provision
within the limits of applicable law or applicable court decisions.
9.10 ASSIGNMENT. This Agreement is not assignable by either party
without the prior written consent of the other party, except that without
securing such prior consent, each party may assign this Agreement and its rights
and obligations hereunder in whole or in part upon written notice (including the
written agreement of the assignee to be bound by the terms and conditions
hereof) to any (i) direct or indirect parent, subsidiary, or affiliate of such
party or (ii) successor of such party by way of merger or consolidation or the
acquisition of all or substantially all of the business and assets of the
assigning party (or business division or unit of such party) relating to this
Agreement (an "Acquisition"). Any other attempt to assign any of the rights,
duties, or obligations of this Agreement will be void and of no effect. For
purposes of this paragraph, an "affiliate" of a party means any entity directly
or indirectly controlling, controlled by, or under common control with such
party, where "control" means ownership of at least fifty percent (50%) of the
equity or beneficial interests of such entity or party. This Agreement will be
binding upon and inure to the benefit of the respective successors and permitted
assigns of the parties.
9.11 FULL POWER. Each party warrants that it has full power to enter
into and perform this Agreement, and the person signing this Agreement on such
party's behalf has been duly authorized and empowered to enter into this
Agreement.
9.12 CONSTRUCTION. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe,
or describe the scope or extent of such section or in any way affect this
Agreement. Unless otherwise expressly stated, when used in this Agreement the
word "including" means "including but not limited to."
9.13 ENTIRE AGREEMENT AND AMENDMENT. Except for any written agreement(s)
entered into by the parties hereto dated on the same date as, or on a subsequent
date to, the Effective Date of this Agreement, this Agreement together with the
Exhibits completely and exclusively states the agreement of the parties
regarding its subject matter. It supersedes, and its terms govern, all prior
understandings, agreements (including, but not limited to, the [...***...]
Non-disclosure Agreement), or other prior communications between the parties,
oral or written, regarding such subject matter. This Agreement may be executed
in counterparts and may be amended only in a document signed by both parties.
Facsimile signatures are deemed equivalent to original signatures for purposes
of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
EXECUTED BY SANYO NORTH AMERICA CORPORATION:
Signature: /s/ Xx. Xxxxxxxx Xxxxxxx
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Name: Xx. Xxxxxxxx Xxxxxxx
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Title: General Manager for SANYO Multimedia Center USA, a division of SANYO
North America Corporation
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Date: 02/24/2000
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EXECUTED BY PACKETVIDEO CORPORATION:
Signature: /s/ Xxx Xxxxxxxx
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Name: Xx. Xxx Xxxxxxxx
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Title: President
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Date: 03/03/2000
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SANYO AGREEMENT
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EXHIBIT A
PACKETVIDEO-SANYO AGREEMENT
DESCRIPTION OF ENGINEERING DELIVERABLE(S)
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SANYO AGREEMENT
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PUBLICITY AND CO-MARKETING OBLIGATIONS
1. CO-BRANDING
Sanyo will place a PacketVideo logo on the outside of the packaging of each
commercial version of the Device. Size, color and placement shall be reviewed
and approved (such approval not to be unreasonably withheld or delayed) by the
parties prior to first commercial shipment. The parties will also cooperate to
develop additional collateral marketing material. PacketVideo "splash screen" to
appear upon launch of the Software.
2. WEBSITE LINKS
The parties will provide mutual hot links between Sanyo's home page(s) for the
commercial version of the Device and the appropriate sections of the PacketVideo
home page.
3. TRADE SHOWS
Each party will provide reasonable support of trade shows and other events, if
any, requested by the other party to highlight the introduction of the Device.
4. SAMPLE UNITS
Sanyo agrees to deliver to PacketVideo ten (10) complementary units of the
commercial version of the Device upon release to shipment. PacketVideo shall
have the right to use such Devices internally and to demonstrate such Devices to
existing and potential customers for marketing purposes.
5. PRESS RELEASE
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SANYO AGREEMENT
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PacketVideo may issue a press release relating to the Agreement in a form
reasonably acceptable to Sanyo on or before February 25, 2000. Such release
shall state that the parties are working together to develop prototype wireless
videophones based on PacketVideo software with the goal of moving such units
into production as next generation wireless networks come online. PacketVideo
may reuse this press release (without change) without further approval from
Sanyo.
6. MULTIMEDIA FORUM
At PacketVideo's request, Sanyo will participate as a member of the wireless
multimedia industry group in formation currently known as the Wireless
Multimedia Forum.
SANYO AGREEMENT
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