Exhibit 10.6
CONFIDENTIAL TREATMENT REQUESTED
VR(2) TECHNOLOGY LICENSE AGREEMENT
THIS VR(2) TECHNOLOGY LICENSE AGREEMENT (this "AGREEMENT") is made and entered
into as of this 4th day of September, 2001 (the "EFFECTIVE DATE"), by and
between Overland Data, Inc., a California corporation, having a place of
business at 0000 Xxxxxx Xxxxxx, Xxx Xxxxx, XX 00000 ("OVERLAND"), and Quantum
Corporation, a Delaware corporation, having a place of business at 000 Xxxxxxxx
Xxxxx, Xxxxxxxx, XX 00000 ("QUANTUM").
RECITALS
A. Overland is the owner of the VR(2) Intellectual Property,
VR(2) Intellectual Property Derivatives and know-how relating to the design, use
and manufacture of the VR(2) Core as defined below.
B. Quantum has requested a *** license grant, except as to
particulars noted in Section 2.1.3(c), under the VR(2) Intellectual Property,
VR(2) Intellectual Property Derivatives and know-how of the VR(2) Core to
develop, make, use, sell and offer for sale tape drive products incorporating
application specific integrated circuits embodying such VR(2) Intellectual
Property, VR(2) Intellectual Property Derivatives and know-how of the VR(2) Core
as set forth in this Agreement.
C. Overland is willing to grant such *** license to Quantum under
the terms and conditions in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
other terms and conditions contained in this Agreement and for other good and
valuable consideration, the receipt of which is acknowledged by both parties,
the parties agree as follows:
ARTICLE I.
DEFINITIONS
For purposes of this Agreement, the following terms and all other terms
defined in this Agreement will have the meanings so defined unless the context
clearly indicates otherwise, and a term defined in the singular will include the
plural and vice versa when the context so indicates:
1.1 ASIC. The term "ASIC" means an application specific integrated circuit.
1.2 CHANNEL. The term "CHANNEL" means a set of electronics, including any
embedded firmware, that processes a single data stream, reads the data
from a single data track on tape with a single reproduce element, and
detects and decodes the data. The number of Channels in a tape drive is
the maximum number of Channels simultaneously active at any given time.
1.3 CORE LICENSE. The term "CORE LICENSE" means a ***, to: (i) use the
VR(2) Intellectual Property solely for the purpose of designing,
manufacturing and having manufactured VR(2) Compliant Products (in each
such case only by or for Quantum); (ii) incorporate such VR(2)
Compliant Products solely into tape drives manufactured by or for
Quantum; (iii) promote, market, offer to sell, sell, and distribute
such VR(2) Compliant Products as a part of tape drives manufactured by
or for Quantum; (iv) excerpt, reproduce and distribute, subject to the
confidentiality provisions of ARTICLE 5, the Documentation solely for
the purpose of making such VR(2) Compliant Products; and (v) use the
Xxxxxxxx Xxxx in connection with the promotion, marketing, sale, offer
for sale, or distribution of tape drives manufactured by or for Quantum
which contain the VR(2) Compliant Products.
1.4 DOCUMENTATION. The term "DOCUMENTATION" means all present manuals,
notebooks, VR(2) Technical Information, quick reference guides,
comments and publications of every nature, and all corrections,
modifications, updates and revisions thereto, relating to the VR(2)
Core provided by Overland to Quantum, to
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
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CONFIDENTIAL TREATMENT REQUESTED
assist in the integration, use and operation of Implementation
Compliant Cores and/or VR(2) Compliant Products. In order to be
considered Confidential Information, Documentation must conform to the
requirements of SECTION 5.1.
1.5 FUNCTIONAL TEST VECTORS. The term "FUNCTIONAL TEST VECTORS" means one
(1) or more sets of test vectors provided by Overland to verify the
functionality of the VR(2) Core and/or any Implementation Compliant
Core.
1.6 IMPLEMENTATION COMPLIANT CORE. The term "IMPLEMENTATION COMPLIANT CORE"
means an integrated circuit implementation of the VR(2) Core which (i)
conforms to the VR(2) data sheet and specification, (ii) passes the
Functional Test Vectors and (iii) has been verified in accordance with
the provisions of this Agreement.
1.7 INTELLECTUAL PROPERTY. The term "INTELLECTUAL PROPERTY" means
inventions, know-how, concepts, routines, ideas, trade secrets,
manufacturing processes and assembly techniques, whether or not
patentable, embodied in or utilized in the design, use and/or
fabrication of any product, including any patent applications, patents,
patent rights, trademarks, service marks, trade secrets, copyrights,
registered designs, topography and/or semiconductor mask work
registrations and rights and/or any applications for any of the
foregoing.
1.8 XXXXXXXX XXXX. The term "XXXXXXXX XXXX" means the VR(2) trademark used
by Overland in connection with products incorporating the VR(2)
Technology, which xxxx is attached as EXHIBIT C.
1.9 QUARTER. The term "QUARTER" means each three-month period ending March
31, June 30, September 30 or December 31 during the Term.
1.10 VR(2) COMPLIANT PRODUCT. The term "VR(2) COMPLIANT PRODUCT" means any
semiconductor chip, field programmable gate array (FPGA) and/or ASIC
developed by Quantum containing an Implementation Compliant Core and
additional Quantum or customer circuitry providing significant
functionality.
1.11 VR(2) CORE. The term "VR(2) CORE" means the single Channel core
Overland proprietary technology using Very High Speed Integrated
Circuit (VHSIC) Hardware Description Language as described and
identified in the specification set forth in EXHIBIT A, excluding: (i)
any analog to digital circuitry or any references thereto; and (ii)
those items identified in EXHIBIT D that do not constitute part of the
VR(2) Technology.
1.12 VR(2) INTELLECTUAL PROPERTY. The term "VR(2) INTELLECTUAL PROPERTY"
means VR(2) Inventions, know-how, concepts, routines, ideas, trade
secrets, manufacturing processes and assembly techniques, whether or
not patentable, embodied in or utilized in the design, use and/or
fabrication of the VR(2) Core and/or ASICs embodying the VR(2)
Technology and/or VR(2) Technical Information, including any patent
applications, patents, patent rights, trademarks, service marks, trade
secrets, copyrights, registered designs, topography and/or
semiconductor mask work registrations and rights and/or any
applications for any of the foregoing, unregistered design rights and
any VR(2) Intellectual Property Derivatives.
1.13 VR(2) INTELLECTUAL PROPERTY DERIVATIVES. The term "VR(2) INTELLECTUAL
PROPERTY DERIVATIVE" means: a) any translation, abridgment,
modification, revision, derivative works or other form in which an
existing work protected by copyright may be recast, transformed or
adapted; (b) any translation, abridgment, modification, revision or
other form in which an existing work protected by topography or mask
rights may be recast, transformed, or adapted; and (c) any changes,
modifications or improvements in the design, functionality or
specification of the VR(2) Core, VR(2) Technical Information and/or
VR(2) Technology, including the addition of new features or capacities,
but not including "VR(2) Compliant Products" (except for the
Implementation Compliant Cores contained therein).
1.14 VR(2) INVENTION. The term "VR(2) INVENTION" means any idea, design,
concept, technique, invention, discovery, algorithm or improvement
relating to the VR(2) Technical Information, VR(2) Technology and/or
VR(2) Core, whether or not patentable.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
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CONFIDENTIAL TREATMENT REQUESTED
1.15 VR(2) TECHNICAL INFORMATION. The term "VR(2) TECHNICAL INFORMATION"
means information and know-how provided by Overland relating to VR(2)
Technology and the manufacture, engineering and use of the VR(2) Core,
including without limitation the following: manufacturing, engineering
and circuit drawings, parts and test specifications, test set drawings,
schematics and documents, engineering development documents, systems
specifications, quality assurance plans, technical practices, software,
training and course materials, vendor listings, and systems engineering
applications.
1.16 VR(2) TECHNOLOGY. The term "VR(2) TECHNOLOGY" means the data encoding
and decoding channel technology for linear magnetic tape formats
developed by Overland, as identified in EXHIBIT D as ***, and includes
solid state circuits embodied in semiconductor chips, associated
specifications, designs, drawings, data, test qualification, and other
documented technical and application information related thereto.
"VR(2) Technology" also includes any related Documentation, Functional
Test Vectors and Implementation Compliant Cores, and any VR(2)
Intellectual Property, VR(2) Intellectual Property Derivatives, VR(2)
Inventions, VR(2) Core, or VR(2) Technical Information but not any
Quantum Technology.
1.17 TEST CHIP. The term "TEST CHIP" means a prototype VR(2) Compliant
Product.
1.18 QUANTUM TECHNOLOGY. The term "QUANTUM TECHNOLOGY" means all technology
in or relating to Quantum products, including, without limitation, tape
drives but not VR(2) Technology.
ARTICLE II.
LICENSES
2.1 TITLE.
2.1.1 Each party will retain the sole ownership of any Intellectual
Property that it has developed or acquired prior to the
Effective Date.
2.1.2 Each party will retain the sole ownership of any Intellectual
Property that it develops or acquires independently during the
Term of this Agreement; provided, however, that such
development or acquisition does not result from either or both
of the parties' efforts in connection with this Agreement.
2.1.3 All Intellectual Property developed or acquired as a result of
either or both of the parties' efforts in connection with this
Agreement will be owned as follows:
***
2.2 INTELLECTUAL PROPERTY. *** Quantum will at no time acquire or retain,
or appropriate for its own use, any right, title or interest in or to
any VR(2) Technology, regardless of inventorship or authorship.
2.3 LICENSE GRANT. Subject to the terms and conditions of this Agreement,
Overland hereby grants to Quantum the Core License.
2.3.1 Quantum will at all times use commercially reasonable efforts
to ensure that all products in relation to which it uses the
Xxxxxxxx Xxxx conform to the quality control guidelines set
forth in this Agreement or provided from time to time by
Overland.
2.3.2 ***
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REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
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2.3.3 Quantum will display the Xxxxxxxx Xxxx on: all Quantum
advertising, marketing, promotional materials, and packaging
relating thereto when the foregoing disclose technical
specifications relating to the VR(2) Compliant Products. In
addition, Quantum will use *** to use or display the Xxxxxxxx
Xxxx in order to facilitate and promote sales of the VR(2)
Compliant Products and to identify the VR(2) Technology as
"patented technology."
2.4 USE OF TRADE NAMES AND MARKS. Quantum will not challenge the ownership
or validity of the Xxxxxxxx Xxxx. Quantum will not use or register in
any country any trademarks diluting or confusingly similar to the
Xxxxxxxx Xxxx. Except as provided by this Agreement, Quantum will not
use any logo, name, trademark, trade name or service xxxx, including,
without limitation, any non-English language phonetic and/or visual
approximation or substitution for the Xxxxxxxx Xxxx.
2.5 SUBCONTRACTORS. Quantum may exercise its right to have manufactured
VR(2) Compliant Products; provided, however, that: (i) Quantum notifies
Overland of the identity of Quantum's subcontract manufacturer
("MANUFACTURER") not less than 30 days prior to the first prototype
production by such Manufacturer. Overland will treat the identity of
Quantum's subcontract manufacturer as confidential information; and
(ii) Quantum ensures that such Manufacturer agrees (a) to be bound by
obligations of confidentiality no less restrictive than those contained
in this Agreement and (b) to supply the VR(2) Compliant Products solely
to Quantum for incorporation into tape drives manufactured by or for
Quantum. If any Manufacturer or sublicensee breaches any provision of
this SECTION 2.5 or applicable sublicense agreement, Quantum will (x)
provide prompt written notice to Overland of such breach if Quantum is
aware of the breach and (y) use all commercially reasonable efforts to
cure any such breach. If Quantum is unable to cure such breach within
30 days of such notice, then, within 90 days of such notice, Quantum
will (i) terminate the right of the original Manufacturer or
sublicensee to produce VR(2) Compliant Products. Quantum further will
indemnify and hold harmless Overland against any and all loss,
liability, costs, damages, reasonable expenses (including reasonable
attorneys' and other professional fees), suffered, incurred or
sustained in connection with or as a result of such breach of this
Section 2.5(a) and (b) by such Manufacturer or sublicensee.
2.6 EXCLUSIONS. No right or license is granted to Quantum to: (i)
sublicense any of the rights granted to Quantum pursuant to the Core
License to sell any VR(2) Compliant Products which are not incorporated
within a tape drive; (ii) offer to sell or sell any VR(2) Compliant
Products which are not incorporated within a tape drive manufactured by
or for Quantum; or (iii) sell any tape drive containing VR(2) Compliant
Products prior to verification by Overland of such VR(2) Compliant
Products in accordance with ARTICLE 3 and payment of all fees in
accordance with ARTICLE 4.
2.7 ***
2.8 ***
ARTICLE III.
VERIFICATION OF IMPLEMENTATION COMPLIANT CORE
3.1 VERIFICATION. Quantum, at its sole cost and expense, may design, have
designed, manufacture (or have manufactured) and characterize a Test
Chip for each VR(2) Compliant Product that it intends to incorporate
into its next generation proprietary tape drive products. For each Test
Chip, Quantum will test and deliver to Overland, free of charge, five
sample tape drives embodying such Test Chip ("SAMPLES") and a copy of
the log generated by testing such Samples ("TEST RESULTS"). The
Implementation Compliant Core will be verified upon (a) Overland's
acceptance of the Test Results provided by Quantum or (b) acceptable
test results for such Test Chip generated by Overland. Overland will
notify Quantum, in writing, as soon as practical based on available
resources and time schedules, but in any event within 30 days of
delivery by Quantum of the Samples and the Test Results to Overland
("VERIFICATION PERIOD"), whether the Implementation Compliant Core of
the Test Chip has been verified or has failed the verification process.
If the Implementation
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REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
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CONFIDENTIAL TREATMENT REQUESTED
Compliant Core of any Test Chip fails the verification process,
Overland will provide to Quantum details of the errors that caused the
failure. The parties will repeat the above process until either (x) the
Test Chip is verified or (y) Quantum withdraws the Test Chip from the
verification process or (z) the parties agree that the Test Chip is
verified. If Overland fails to confirm the result of the verification
process within the Verification Period, the Test Chip subject to
verification will be deemed verified.
3.2 SALE OF VR(2) COMPLIANT PRODUCTS. If (i) the Test Chip for an
Implementation Compliant Core has been verified in accordance with the
provisions of SECTION 3.1 and (ii) the VR(2) Compliant Products
containing such verified Implementation Compliant Core in such Test
Chip runs the Functional Test Vectors without detection of any errors
(or where Overland waives in writing such detected errors pursuant to
SECTION 3.1), Quantum may sell such VR(2) Compliant Products
manufactured by or for Quantum solely as part of a tape drive
manufactured by or for Quantum without further verification.
ARTICLE IV.
FEES AND ROYALTIES
4.1 CONTRACT ENGINEERING SERVICES. From the Effective Date until ***,
Overland will provide to Quantum contract engineering services covering
(a) system design of a future SDLT channel, (b) modification of VR(2)
for a future SDLT system design and backward compatibility; (c) primary
technical support to integrate and verify the VR(2) Core in a mixed
signal design with a vendor of Quantum's choosing (d) assistance with
verification of the system design and channel performance and (e) such
other engineering services as the parties may mutually agree. As
consideration for such contract engineering services, *** Quantum will
pay in advance to Overland non-refundable fees of $250,000, plus, as
mutually agreed to by the parties in advance in writing, any *** in
connection with such contract engineering services. Quantum will
deliver payment for such fees and *** expenses to Overland on each such
respective date. ***
***
4.2 ROYALTY. In consideration for the Core License, Quantum will pay to
Overland a royalty amount in accordance with the terms and conditions
set forth in EXHIBIT B. Quantum will deliver such royalty payments to
Overland not later than *** days after the end of each Quarter (or
portion thereof) during the Term of this Agreement.
4.3 ADDITIONAL CONTRACT ENGINEERING SERVICES. Subsequent to the development
of Quantum's next generation proprietary tape drive product employing
the VR(2) Technology, upon written request of Quantum, Overland may
agree to provide to Quantum additional contract engineering services.
Consideration for such additional services will be determined on the
basis of the type and scope of work requested.
4.4 RECORDS AND REPORTS. Quantum will keep accurate and sufficient records
to determine any and all amounts owed to Overland under this Agreement,
including, without limitation, the aggregate number of drives
containing VR(2) Compliant Products sold by Quantum in each Quarter (or
portion thereof) during the Term of this Agreement and the gross and
net revenues associated therewith. Quantum will make a non-binding
preliminary written royalty report detailing the royalty computations
and deliver such report to Overland within *** days after the end of
each Quarter (or portion thereof) during the Term of this Agreement. If
no royalty is due, the report will so state. Quantum will provide the
corresponding final written report to Overland not later than *** days
after the end of each Quarter. Overland acknowledges that the
preliminary written report may contain material, non-public information
of Quantum, and Overland will not disclose to
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
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CONFIDENTIAL TREATMENT REQUESTED
any third party any material, non-public information contained in such
preliminary written report. Records necessary for the computation of
amounts payable by Quantum under this Agreement will be maintained by
Quantum for a period of *** years following each accounting report due,
including the last accounting report due upon termination of this
Agreement for any reason. Upon *** days advance prior notice to
inspect, Quantum will make such records open to inspection by an
independent auditor selected by Overland and approved by Quantum, which
approval will not be withheld unreasonably, not more than ***, in all
such cases during regular business hours of Quantum. Such independent
auditor only will use such records to determine the accuracy of
royalties paid and reports submitted to Overland and shall not provide
or display in any way a copy of the records to Overland. Quantum will
(i) reimburse Overland for the expenses of such audits *** and (ii)
promptly pay to Overland the amount of any such underpayment. Any
overpayment will be offset against the next payment under this
Agreement to be paid by Quantum to Overland or if no such payments are
due, the overpayment shall be paid immediately to Quantum.
4.5 PAYMENTS AND TAXES. All payments made pursuant to this Agreement will
be made in United States dollars. Notwithstanding any other provision
of this Agreement, any amounts payable under this Agreement will be
paid without notice, demand, counterclaim, deduction, set off, offset
or defense and without abatement, suspension, deferment, diminution, or
reduction. Quantum will pay all national, federal, state, local, or any
other governmental use, sales, excise, occupational, property (ad
valorem), consumer and similar taxes or duties now in force or enacted
in the future relating to any license fees, service fees, royalties or
other payments due to Overland pursuant to this Agreement, except for
income taxes due and owing by Overland based on amounts received by
Overland under this Agreement. If Overland is required to pay any such
tax, fee or charge otherwise payable by Quantum pursuant to this
Agreement, Quantum will promptly reimburse Overland after Overland
provides Quantum with evidence of the amounts paid, so that payments to
Overland will be in full and free of all liability for such taxes, fees
or charges or other deductions.
ARTICLE V.
CONFIDENTIAL INFORMATION
5.1 CONFIDENTIAL INFORMATION. Each party will keep confidential any
information identified as confidential ("CONFIDENTIAL INFORMATION"),
including, without limitation, the Documentation, Functional Test
Vectors, VR(2) Intellectual Property Derivatives, VR(2) VHDL Model,
VR(2) Technical Information, VR(2) Inventions and VR(2) Technology
provided to Quantum by Overland, which is made available to the other
party in accordance with this Agreement or test results, Quantum
technology, Quantum inventions, test chips, and the terms and
conditions of this Agreement. The disclosing party will xxxx or
identify its Confidential Information as "confidential." *** The
disclosing party will xxxx such written summary as its Confidential
Information. Each party will use the other party's Confidential
Information only for the purposes contemplated and permitted by this
Agreement. Neither party will disclose the other party's Confidential
Information to any third party except as may be required (i) by court
order (provided that the party subject to such court order gives prompt
written notice thereof to the party whose Confidential Information will
be disclosed and cooperates in any motion or action to prevent or limit
the required disclosure), and (ii) pursuant to any discovery obligation
in litigation, provided that reasonable notice of such obligation has
been provided to the other party and a mutually agreeable protective
order has been sought by the party obligated to disclose such
Information or (iii) for the purpose of delivering the VHDL Model or
equivalent code to third party ASICs fabricators or third parties
providing FPGA related software services who in each such case have
entered into written confidentiality agreements covering such
Confidential Information and with Overland's approval. Each party
further will protect the other party's Confidential Information from
unauthorized use or disclosure in the same manner as it protects its
own similar Confidential Information (but in no event with less than
reasonable care), and to limit access to the other party's Confidential
Information to those of its employees and agents who need such access
for purposes contemplated and permitted by this Agreement. This
obligation of confidentiality will last until the later of: (x) ***
from the date when the confidential information is disclosed to the
recipient; or (y) the termination date of this Agreement.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
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5.2 EXCLUSIONS. The obligations in this ARTICLE 5 will not apply to any
information that is: (i) presently publicly available, except as
disclosed in violation of this Agreement; (ii) lawfully received by any
party from a third party who is or who was not bound in a confidential
relationship to the other party; (iii) without obligation of
confidentiality, already properly and lawfully in possession of any
party prior to the Effective Date or the date of its disclosure, or
information which such party demonstrates with appropriate
documentation was known prior to this Agreement; (iv) required by law
or governmental regulation or necessary for the purpose of enforcement
of this Agreement; or (v) independently developed by one party without
use of any Confidential Information of the other party .
5.3 PRESS RELEASES. Neither party will issue a press release relating to
this Agreement without the prior written consent of the other party
(which consent will not be withheld unreasonably); provided, however,
that such consent will not apply to the parties public disclosure and
press release requirements under the federal securities laws or other
applicable governmental laws, regulations or agencies.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS BY OVERLAND.
6.1.1 Overland warrants that it has full power and authority to
enter into this Agreement. Overland warrants that it owns and
has the necessary authority and rights to grant the licenses
granted by Overland herein.
6.1.2 Overland is not a party to, subject to, or bound by any
agreement or any judgment, award, order, writ, injunction or
decree of any court, governmental body or arbitrator, which
could prevent the carrying out of this Agreement; and there is
(i) no action, suit, dispute or governmental, administrative,
arbitration or regulatory proceeding pending or, to the best
of Overland's knowledge, threatened nor (ii) to the best of
Overland's knowledge, any investigation pending or, to the
best of Overland's knowledge, threatened against or relating
to Overland, which, in either case, could prevent Overland
from carrying out its obligations under this Agreement.
6.1.3 Overland makes no representations or warranties as to the
commercial utility of the VR(2) Technology, or any other items
provided by Overland ("OVERLAND ITEMS") pursuant to this
Agreement. OVERLAND DOES NOT WARRANT THAT THE OVERLAND ITEMS
WILL MEET QUANTUM'S REQUIREMENTS OR THAT THE OVERLAND ITEMS
WILL OPERATE IN THE COMBINATIONS WHICH QUANTUM MAY SELECT FOR
USE. THE OVERLAND ITEMS ARE PROVIDED WITHOUT ANY EXPRESS OR
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, OVERLAND DOES
NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING
USE, OR THE RESULTS OF USE, OF THE OVERLAND ITEMS.
6.1.4 The parties are solely and exclusively responsible for any and
all of their respective activities carried out under the
license granted or otherwise under this Agreement.
6.1.5 THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH
RESPECT TO THE OVERLAND ITEMS, WHETHER EXPRESS OR IMPLIED,
ARISING BY LAW, CUSTOM OR ORAL OR WRITTEN STATEMENTS BY
OVERLAND, ITS AGENTS, OR REPRESENTATIVES OR OTHERWISE. EXCEPT
AS PROVIDED EXPRESSLY HEREIN,
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REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
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OVERLAND MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WITH
RESPECT TO THE OVERLAND ITEMS.
6.2 REPRESENTATIONS BY QUANTUM.
6.2.1 Quantum warrants that it has full power and authority to enter
into this Agreement.
6.2.2 Quantum is not a party to, subject to, or bound by any
agreement or any judgment, award, order, writ, injunction or
decree of any court, governmental body or arbitrator, which
could prevent the carrying out of this Agreement; and there is
(i) no action, suit, dispute or governmental, administrative,
arbitration or regulatory proceeding pending or, to the best
of Quantum's knowledge, threatened nor (ii) to Quantum's
knowledge, any investigation pending or, to the best of
Quantum's knowledge, threatened against or relating to
Quantum, which, in either case, could prevent Quantum from
carrying out its obligations under this Agreement.
6.2.3 Quantum represents and warrants that it has the knowledge,
expertise and capability necessary to use the Overland Items
in a safe and effective manner. Quantum acknowledges and
agrees that (i) Overland has no control over, or
responsibility for, the manner in which Quantum uses the
Overland Items. EXCEPT AS EXPRESSLY PROVIDED HEREIN, QUANTUM
MAKES NO WARRANTIES OR REPRESENTATIONS.
6.3 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, NEITHER PARTY WILL BE RESPONSIBLE OR LIABLE TO THE
OTHER UNDER ANY PROVISION OF THIS AGREEMENT OR UNDER ANY CONTRACT,
NEGLIGENCE, PRODUCT LIABILITY, STRICTLIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR LOSS OF GOODWILL, LOSS OR INACCURACY OF DATA, OR
ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT
LIMITATION, LOSS OF REVENUES AND LOSS OF PROFITS, REGARDLESS OF WHETHER
SUCH PARTY HAS BEEN ADVISED OF THE EXPECTATION OR EXISTENCE OF SUCH
DAMAGES. THE LIABILITY OF EACH PARTY TO THE OTHER UNDER ANY THEORY
WHATSOEVER, EXCEPT FOR THIRD-PARTY INTELLECTUAL PROPERTY INFRINGEMENT
PURSUANT TO SECTION 7.2, WILL BE LIMITED TO PAYMENT OF *** AN AMOUNT
NOT GREATER THAN AMOUNTS ACTUALLY RECEIVED BY OVERLAND PURSUANT TO THIS
AGREEMENT ***.
ARTICLE VII.
INDEMNITY
7.1 INDEMNITY BY QUANTUM. Quantum will indemnify and hold harmless Overland
and its directors, officers, employees, agents, successors and assigns
from and against any and all liability, damages, losses, claims,
demands, actions, judgments, costs, attorneys' fees, disbursements and
expenses incurred in connection with any action, claim or demand
against Overland by reason of losses, injury to or death of any person
or damage to or destruction of property or the environment arising out
of or resulting from (a) any material breach of this Agreement by
Quantum, (b) any breach of any representations or warranties made by
Quantum in this Agreement, (c) any and all activities carried out by
Quantum pursuant to this Agreement, (d) any use or defects of any kind
relating to a VR(2) Compliant Product or any other product manufactured
by or for Quantum, ***, (e) infringement based on the making, using,
selling or offering for sale of any VR(2) Compliant Product or any
other product manufactured by or for Quantum, ***, (f) ***, the making,
using, selling or offering for sale of any devices incorporating VR(2)
Compliant Products Product or any other product manufactured by or for
Quantum, or (g) the negligent, reckless or willful acts or omissions of
Quantum, its employees, subcontractors or agents in any and all
activities carried out under this Agreement. Quantum will not be
responsible for any such losses, damages, liabilities, claims, actions,
judgments, costs, demands,
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
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attorneys' fees, disbursements and expenses to the extent caused by the
negligence or willful misconduct of Overland, its directors, officers
or employees. If an action, claim or demand is filed against Overland
for which Quantum is to be responsible under this provision, Overland
will promptly notify Quantum in writing of such action, claim or
demand. Upon receipt of such notice from Overland, if Quantum
acknowledges in writing to Overland that Quantum is obligated to
indemnify Overland under the terms of this SECTION 7.1 in connection
with such action, claim or demand, then Quantum will be entitled, if it
so elects, to take control of the defense and investigation of such
action, claim or demand and to employ and engage attorneys of its own
choice to handle and defend the same at Quantum's sole cost, risk and
expense and Overland will thereafter cooperate in all reasonable
respects with Quantum and its attorneys in the investigation, trial and
defense of such action, claim or demand and any appeal arising
therefrom. Overland may also, through independent counsel and at its
own cost, participate in such investigation, trial and defense of such
action, claim or demand and any appeal arising therefrom. Quantum may
effect no settlement without the prior written approval of Overland,
which approval will not be unreasonably withheld.
7.2 INDEMNITY BY OVERLAND. Overland will indemnify and hold harmless
Quantum and its directors, officers, employees, agents, successors and
assigns from and against any and all liability, damages, losses,
claims, demands, actions, judgments, costs, attorneys' fees,
disbursements and expenses incurred in connection with any action,
claim or demand against Quantum by reason of injury to or death of any
person or damage to or destruction of property or the environment
arising out of or resulting from (a) any material breach of this
Agreement by Overland, (b) any breach of any representations or
warranties made by Overland in this Agreement, (c) any and all
activities carried out by Overland pursuant to this Agreement, (d) the
negligent, reckless or willful acts or omissions of Overland, its
employees, subcontractors or agents in any and all activities carried
out under this Agreement, or (e) infringement based on the making,
using, selling or offering for sale of any VR(2) Compliant Product
manufactured by or for Quantum, to the extent that such infringement
relates specifically to the VR(2) Core. Overland will not be
responsible for any such losses, damages, liabilities, claims, actions,
judgments, costs, demands, attorneys' fees, disbursements and expenses
to the extent caused by the negligence or willful misconduct of
Quantum, its directors, officers or employees. If an action, claim or
demand is filed against Quantum for which Overland is to be responsible
under this provision, Quantum will promptly notify Overland in writing
of such action, claim or demand. Upon receipt of such notice from
Quantum, if Overland acknowledges in writing to Quantum that Overland
is obligated to indemnify Quantum under the terms of this SECTION 7.2
in connection with such action, claim or demand, then Overland will be
entitled, if it so elects, to take control of the defense and
investigation of such action, claim or demand and to employ and engage
attorneys of its own choice to handle and defend the same at Overland's
sole cost, risk and expense and Quantum will thereafter cooperate in
all reasonable respects with Overland and its attorneys in the
investigation, trial and defense of such action, claim or demand and
any appeal arising therefrom. Quantum may also, through independent
counsel and at its own cost, participate in such investigation, trial
and defense of such action, claim or demand and any appeal arising
therefrom. Overland may effect no settlement without the prior written
approval of Quantum, which approval will not be unreasonably withheld.
7.3 LIABILITY FOR INJURIES TO PERSONNEL. Each party will be solely
responsible for, and will indemnify the other party against all claims,
losses, litigation, damages and expenses resulting from injuries to or
the death of any of its personnel occurring while any such person is
traveling to or from any of the other party's facilities for the
purpose of performing under this Agreement or is otherwise engaged in
activities provided for under this Agreement, unless such claims,
losses, litigation, damages and expenses are caused by the act or
omission of the party seeking indemnification.
ARTICLE VIII.
TERM AND TERMINATION
8.1 TERM. This Agreement will commence on the Effective Date and will
terminate upon *** (the "TERM").
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REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
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8.2 ***
8.3 TERMINATION. (a) Either party may terminate this Agreement and all
licenses granted pursuant to this Agreement immediately: (i) upon any
failure of a party to pay any amounts due that is not cured within ***
days after the date of written notice sent by the non-breaching
relating to such non-payment, (ii) in the event of a material breach of
any term of this Agreement (not related to payment) by the other party
which continues uncured for a period of *** days after the
non-breaching party provides written notice to the breaching party; or
(iii) upon any material breach of the provisions of Article 5 which by
its nature is not capable of being cured (b) Either party may terminate
this Agreement or suspend performance, if at any time during the Term
of this Agreement, the other party: becomes insolvent or becomes unable
to meet its obligations as they become due; makes a general assignment
for the benefit of creditors; petitions, applies for, suffers or
permits with or without its consent the appointment of a custodian,
receiver, trustee in bankruptcy or similar officer for all or any
substantial part of its business or assets; or avails itself or becomes
subject to any proceeding under the Federal Bankruptcy Code or any
similar state, federal or foreign statute relating to bankruptcy,
insolvency, reorganization, receivership, arrangement, adjustment of
debts, dissolution or liquidation, which proceeding is not dismissed
within *** days of commencement thereof. ***
8.4 ACCRUED OBLIGATIONS. Termination of this Agreement will not relieve
either party of any then-accrued payment obligations under this
Agreement. Any and all payments by either party to the other party
accrued pursuant to this Agreement as of the date of termination will
remain due and payable in accordance with the terms of this Agreement.
8.5 CONSEQUENCES OF TERMINATION. Upon any termination or expiration of this
Agreement for any reason whatsoever, Quantum will deliver to Overland
all Overland Confidential Information *** and other written materials
related to, embodying, or associated with, (in any media) any VR(2)
Technology, made available to, Quantum pursuant to the terms of this
Agreement. Any termination of this Agreement will not eliminate any
liability arising out of the conduct prior to the actual date of
termination, and either party may, following such termination, pursue
such remedies as may be available with respect to such liabilities. In
addition, the obligations of *** will survive any termination of this
Agreement ***. Within *** days after termination of this Agreement for
any reason whatsoever, Quantum will: (i) certify in writing to Overland
that Quantum has to the best of its knowledge satisfied all of its
obligations under this SECTION 8.5 to return all Overland's
Confidential Information; (iii) pay all accrued and unpaid royalties
pursuant to SECTION 4.2. Immediately upon termination of this
Agreement, except as allowed under Section 8.6, Quantum will not
advertise, fill or accept further purchase orders of any VR(2)
Compliant Product and/or any products or devices integrating any VR(2)
Compliant Product. In the event of a material breach of this Agreement
by Overland, ***. In the event of Overland's bankruptcy, insolvency,
inability to meet its obligations as they become due, general
assignment for the benefit of creditors, petition, application for
(with or without its consent) the appointment of a custodian, receiver,
trustee in bankruptcy or similar officer for all or any substantial
part of its business or assets, or if Overland avails itself or becomes
subject to any proceeding under the Federal Bankruptcy Code or any
similar state, federal or foreign statute relating to bankruptcy,
insolvency, reorganization, receivership, arrangement, adjustment of
debts, dissolution or liquidation, which proceeding is not dismissed
within 60 days of commencement thereof, ***.
8.6 ***
ARTICLE IX.
COMPLIANCE WITH LAWS
9.1 CERTAIN LAWS. Without limiting the generality of this SECTION 9.1, each
party hereby acknowledges and agrees that certain laws of the United
States, including the Foreign Corrupt Practices Act, 15 U.S.C. sections
78dd-1, ET SEQ., prohibit any person subject to the jurisdiction of the
United States from making any
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
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payment of money or anything of value, directly or indirectly, to any
foreign political party or candidate for foreign political office for
the purpose of obtaining or retaining business. Each party hereby
represents and warrants that, in the performance of its duties pursuant
to this Agreement, it has not made, and will not make, any such
proscribed payment. Each party will indemnify and hold harmless the
other party from and against any and all claims, losses and liabilities
attributable to any breach by such party of its obligations under this
SECTION 9.1.
9.2 UNITED STATES EXPORT CONTROLS. Without limiting the generality of
SECTION 9.1, each party specifically acknowledges that certain of the
Overland Items ("TECHNICAL DATA") may be subject to United States
export controls, pursuant to the Export Administration Regulations, 15
C.F.R. Parts 768-799. Each party will comply strictly with any
applicable requirements of the Export Administration Regulations with
respect to all such Technical Data. Without limiting the generality of
the foregoing obligation, without the prior written authorization of
the United States Commerce Department, such party will not, and will
cause its representatives to not (a) export, re-export, divert or
transfer any such Technical Data, or any direct product thereof, to any
destination, company, or person prohibited by the Export Administration
Regulations, or (b) disclose any such Technical Data to any national of
any country when such disclosure is prohibited by the Export
Administration Regulations.
ARTICLE X.
ARBITRATION
10.1 GOVERNING LAW. This Agreement will be governed in all respects solely
and exclusively by the laws of the State of California, U.S.A. without
regard to conflict of law principles. The United Nations Convention on
the International Sale of Goods will not apply to this Agreement.
10.2 MANDATORY ARBITRATION. All disputes, controversies, or claims arising
out of, relating to, or in connection with this Agreement, including
without limitation the determination of the scope of the agreement to
arbitrate, will be finally settled by arbitration in accordance with
the Expedited Procedures of the Commercial Arbitration Rules ("RULES")
of the American Arbitration Association ("AAA"), applicable at the time
of submission of the dispute to arbitration. The arbitration will take
place in San Diego, California at the offices of the AAA. The dispute
will be resolved by a single arbitrator appointed by the AAA in
accordance with the list procedure described in Paragraph 13 of the
Rules, except that the AAA will transmit the list within 10 days of the
filing of the Demand for Arbitration, and the Parties will have five
days to return the list to the AAA with their objections and
preferences. The place of arbitration will be San Diego, California,
and the exclusive language to be used for the arbitration proceedings
will be English.
10.3 ANCILLARY RELIEF. Nothing in this Agreement will prevent a party, prior
to appointment of the arbitrator, from making application to any court
of competent jurisdiction, for any provisional remedy available at law
or in equity. Such application for relief will not constitute a waiver
of this agreement to arbitrate. Upon appointment, the arbitrator will
have exclusive authority to order provisional or interim relief, except
that any relief ordered by the arbitrator may be immediately and
specifically enforced by a court otherwise having jurisdiction. The
parties waive objection to venue and consent to the personal
jurisdiction of the federal courts of San Diego, California, U.S.A. in
any action to enforce this agreement to arbitrate or any order or award
of the arbitrator, or for the provisional or interim remedies provided
for in this Agreement.
10.4 EXPENSES. In any arbitration proceeding pursuant to this Agreement,
each party will bear the expenses of its witnesses. All other costs of
arbitration, including, without limitation, the fees and expenses of
the arbitrators, the cost of the record or transcripts thereof, if any,
administrative fees, the reasonable attorneys' fees of the parties, and
all other fees and costs will be allocated to the parties to the
arbitration as determined by the arbitrator, except that the prevailing
party in such arbitration will be entitled to recover its reasonable
attorneys' fees and expenses.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
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CONFIDENTIAL TREATMENT REQUESTED
10.5 DISCOVERY. Discovery will be limited to written requests for the
production of documents, and Overland and Quantum may each conduct
depositions totaling not more than 20 hours in the aggregate; provided,
however, that the arbitrators may approve requests for additional
depositions upon good cause shown. The period for requesting documents
will be 60 days commencing upon the day that the answer is due under
the Rules. The responding party will have 30 days to produce the
requested documents by sending copies to the requesting party or its
representative via a recognized international courier service. The
parties will also voluntarily produce all documents that they intend to
use at the arbitration hearing and a list of intended witnesses 10 days
before the close of discovery subject to supplementation for purposes
of rebuttal or good cause shown. The parties waive any right to seek
any discovery not provided for in this Agreement irrespective of
whether the laws of any country provide for different or additional
discovery in international arbitration. The arbitrator will hold a
pre-hearing conference within three days of the close of discovery and
will schedule and conclude the final hearing within 60 days of the
close of discovery. EACH PARTY TO THIS AGREEMENT HEREBY AGREES THAT THE
ARBITRATION PROCEDURE PROVIDED IN THIS AGREEMENT WILL BE THE SOLE AND
EXCLUSIVE METHOD OF RESOLVING ANY DISPUTES, CONTROVERSIES OR CLAIMS
ARISING IN CONNECTION WITH, OR OUT OF THIS AGREEMENT, OR OTHERWISE
BETWEEN THE PARTIES TO THIS AGREEMENT.
ARTICLE XI.
MISCELLANEOUS
11.1 INDEPENDENT CONTRACTORS. Quantum and Overland hereby declare and agree
that: (i) each is engaged in an independent business and will perform
its obligations under this Agreement as an independent contractor and
not as the agent or employee of the other; (ii) the persons performing
work for each party are not agents or employees of the other; (iii)
Quantum and Overland each has and hereby retains the right to exercise
full control of and supervision over the performance of its obligations
pursuant to this Agreement and full control over the employment,
direction, compensation and discharge of all employees assisting in the
performance of such obligations; (iv) Quantum and Overland will each be
solely responsible for all matters relating to payment of its
respective employees, including compliance with worker's compensation,
unemployment, disability insurance, social security, withholding and
all other federal, state and local laws, rules and regulations
governing such xxxxxx; and (v) Quantum and Overland each will be
responsible for its own acts and those of its agents, employees and
contractors during the performance of its obligations under this
Agreement. Neither party nor any of its employees, agents or
representatives will be deemed to be an agent or representative of the
other party for any purpose. Neither party will have the right or
authority to assign or create any obligation of any kind, express or
implied, on behalf of the other party, or to act for or on behalf of
the other party, to make commitments of any kind or bind it in any way,
to accept any service of process upon, or to receive any notices of any
nature whatsoever in its behalf.
11.2 ASSIGNMENT. Neither party may assign its rights or delegate its duties
under this Agreement without the prior written consent of the other
party; provided, however, that any party may assign its rights and
delegate its duties, either in whole or in part, under this Agreement
to any wholly owned or controlled affiliate, provided that such
assignment includes an express assumption of the assignor's obligations
pursuant to this Agreement; and, further provided, that the assignor
will continue to be responsible, jointly and severally with the
assignee, for its obligations, responsibilities and duties pursuant to
this Agreement. The assigning party will give to the other party
written notification of any such assignment. Any attempted assignment
or delegation in contravention of this SECTION 11.2 will be void and of
no effect. Notwithstanding the foregoing, either party will have the
right to assign this Agreement without the consent of the other party
as a part of the sale or transfer of all or substantially all of the
party's business to which this Agreement relates.
11.3 NOTICE. Except as otherwise provided in this Agreement, all notices
will be deemed to have been duly given when made in writing and
delivered in person, by electronic facsimile transmission with written
confirmation of receipt, after deposited in the United States Mail,
postage prepaid, certified mail, return receipt requested
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY
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CONFIDENTIAL TREATMENT REQUESTED
or sent by a express courier service which provides documented
delivery, and addressed as follows: (i) if to Overland, send to
Overland Data, Inc., 0000 Xxxxxx Xxxxxx, Xxx Xxxxx, XX 00000,
Attention: Chief Financial Officer; and if to Quantum, send to Quantum
Corporation, 000 Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000, Attention: General
Counsel. The address to which notices or communications may be given by
any party may be changed by written notice given by such party to the
other pursuant to this SECTION 11.3.
11.4 NO THIRD-PARTY BENEFICIARIES. The provisions of this Agreement are for
the benefit solely of the parties and not for any other person.
11.5 WAIVERS. Waiver by either party of any breach by the other party will
not be deemed a waiver by the non-breaching party of any other default.
11.6 AMENDMENTS. No provision of this Agreement will be deemed waived,
amended or modified by either party, unless such waiver, amendment or
modification is in writing and signed by the authorized representative
of the party against whom it is sought to enforce such waiver,
amendment or modification.
11.7 HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and will not affect in any
way the meaning or interpretation of this Agreement.
11.8 SEVERABILITY. If any provision of this Agreement or the application of
any such provision to any person or circumstance, is declared
judicially to be invalid, unenforceable or void, such decision will not
have the effect of invalidating or voiding the remainder of this
Agreement, it being the intent and agreement of the parties that this
Agreement will be deemed to have been amended by modifying such
provision to the extent necessary to render it valid, legal and
enforceable while preserving its intent or, if such modification is not
possible, by substituting therefor another provision that is legal and
enforceable and that achieves the same objective.
11.9 COUNTERPARTS. This Agreement may be executed in several duplicate
originals in the English language, each of which will be deemed an
original but all of which together will constitute one and the same
instrument. All reports, data, information, notices, schedules, plans,
records and other information required to be provided pursuant to this
Agreement by either party will be in the English language. If a
translation is made of this Agreement, it will be made for the
convenience of the parties and the English version of this Agreement,
rather than the translated version, will be deemed to be controlling.
11.10 ENTIRE AGREEMENT. This Agreement embodies the entire agreement of
Quantum and Overland and supersedes all prior agreements,
understandings and communications, whether written or oral, between the
parties or by either of them with respect to its subject matter.
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT
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IN WITNESS WHEREOF, the parties to this Agreement have caused this Agreement to
be executed by their duly authorized representatives as of the Effective Date.
OVERLAND DATA, INC.: QUANTUM CORPORATION:
By: /s/ Xxxxxx X. XxXxxxx By: /s/ Xxxx Xxxx
----------------------------------- -----------------------------------
Xxxxxx X. XxXxxxx Xxxx Xxxx
Vice President and Chief Financial Vice President, DLTG Supply Chain
Officer
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A
VR(2) SPECIFICATION
***
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EXHIBIT B
VR(2) ROYALTY SCHEDULE
***
THIS EXHIBIT B (CONSISTING OF ONE PAGE) HAS BEEN REDACTED AND IS THE SUBJECT OF
A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT C
XXXXXXXX XXXX
***
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EXHIBIT D
VR(2) TECHNOLOGY DIAGRAM
***
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