This "Memory Stick and Memory Stick PRO Player/Recorder Connector
AGREEMENT" sample is disclosed to your company for the purpose of evaluation of the possibility of manufacturing Memory Stick related products. This is not an offer of the contract from Sony. Please be advised that the content of "Memory Stick and Memory Stick PRO Player/Recorder Connector AGREEMENT" is subject to modification.
Memory Stick and Memory Stick PRO Player/Recorder Connector A G R E E M E N T
This Agreement made as of this ___ day of _______, _______ by and between Sony Corporation, a corporation organized and existing under and by virtue of the laws of Japan, having its principal office at 7-1, Konan 1-chome, Minato-ku, Tokyo 108-0075 Japan (hereinafter referred to as “Sony”) and _________________, a corporation organized and existing under and by virtue of the laws of _________, having its principal office at ____________________________________ (hereinafter referred to as “Company”),
W I T N E S S E T H :
WHEREAS, Sony, as a result of its research and development, has presented a data recording, storage and reproduction system under the name “Memory Stick”
(hereinafter referred to as “Memory Stick System”);
WHEREAS, Sony and SanDisk Corporation, having an office at 601 McCarthy Blvd. Milpitas, CA 95035 U.S.A. (hereinafter referred to as “SanDisk”), have jointly been engaged in the research and development of new system based on the Memory Stick System, and have obtained valuable know-how and experience thereby;
WHEREAS, Sony and SanDisk, as a result of such research and development, has presented a new data recording, storage and reproduction system under the name
“Memory Stick PRO” (hereinafter referred to as “Memory Stick PRO System”);
WHEREAS, Sony has been authorized by SanDisk to grant licenses of such technical information for the Memory Stick PRO System owned by Sony and SanDisk;
WHEREAS, Company desires to obtain a license from Sony to manufacture and sell certain electronic components to be incorporated in such players/recorders for
the Memory Stick System and the Memory Stick PRO System under certain intellectual property rights concerning the Memory Stick System and the Memory Stick PRO System, owned solely by Sony or jointly by Sony and SanDisk; and
WHEREAS, Sony is willing to grant such license to Company upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
ARTICLE I DEFINITIONS
The following terms shall have the following meanings. All definitions herein shall apply equally to their singular and plural forms, and, except as otherwise expressly stated, all references to Articles and Paragraphs shall be deemed to be references to articles and paragraphs of this Agreement.
1.01 “Confidential Information” shall mean any and all confidential and proprietary information, documents and materials relating to the Licensed Products, including, but not limited to, the Specifications, which are disclosed by Sony to Company and are clearly marked “Confidential” at the time of disclosure or, if orally or visually disclosed, are identified as confidential at the time of disclosure and confirmed by a written summary with “Confidential” marking to be issued to Company within thirty (30) days after the date of such disclosure.
1.02 “Hardware” shall mean (i) the Memory Stick Duo Hardware, (ii) the Memory Stick Hardware, (iii) the Memory Stick HG Micro Hardware, (iv) the Memory Stick Micro Hardware, (v) the Memory Stick PRO Duo Hardware, (vi) the Memory Stick PRO Hardware, (vii) the Memory Stick PRO-HG Duo Hardware, (viii) the Memory Stick XC Duo Hardware, (ix) the Memory Stick XC-HG Duo Hardware, (x) the Memory Stick XC-HG Micro Hardware, and (xi) the Memory Stick XC Micro Hardware, collectively.
1.03 “Hardware Licensee” shall mean any third party who is licensed by Sony or SanDisk to manufacture and sell the Hardware under certain intellectual property rights and technical information owned by Sony and/or SanDisk, as the case may be.
1.04 “Licensed Product” shall mean any connector which conforms to (i) the Memory Stick Connector Specification, to be incorporated into the Memory Stick Hardware or the Memory Stick PRO Hardware, (ii) the Memory Stick Duo Connector
Specification, to be incorporated in the Memory Stick Duo Hardware, the Memory PRO Duo Hardware or the Memory Stick XC Duo Hardware, (iii) the Memory Stick Micro Connector Specification, to be incorporated in the Memory Stick Micro Hardware or the Memory Stick XC Micro Hardware, (iv) the Memory Stick PRO-HG Duo Connector Specification, to be incorporated in the Memory Stick PRO-HG Duo Hardware or the Memory Stick XC-HG Duo Hardware, and (v) the Memory Stick HG Micro Connector Specification, to be incorporated in the Memory Stick HG Micro Hardware or the Memory Stick XC-HG Micro Hardware.
1.05 “Memory Stick Connector Specification” shall mean the technical specification which is made by Sony and titled as “Memory Stick Connector Design Specifications ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include major revision of them as represented by the change of the left side of the decimal point.
1.06 “Memory Stick Duo Connector Specification” shall mean the technical specification which is made by Sony and titled as “Memory Stick Duo Connector Design Specifications ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include major revision of them as represented by the change of the left side of the decimal point.
1.07 “Memory Stick Duo Hardware” shall mean any hardware for the Memory Stick System, which is manufactured by or for the Hardware Licensee, and which conforms to, at least, all or portion of the Memory Stick Duo Standard Specification and the Memory Stick Standard Specification in accordance with the terms and conditions of the license agreement under which such license is granted by Sony.
1.08 “Memory Stick Duo Standard Specification” shall mean the technical specification which is made by Sony and titled as “Memory Stick Duo Format Specifications ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include major revision of them as represented by the change of the left side of the decimal point.
1.09 “Memory Stick Hardware” shall mean any hardware for the Memory Stick System, which is manufactured by or for the Hardware Licensee, and which conforms to, at least, all or portion of the Memory Stick Standard Specification in accordance with the terms and conditions of the license agreement under which such license is granted by Sony.
1.10 “Memory Stick HG Micro Connector Specification” shall mean the technical specification which is made by Sony and SanDisk and titled as “Memory Stick HG Micro Connector Design Specification ver.1.0” and the updated versions thereof as
represented by the change in the version number only at the right side of the decimal point, but shall not include major revision of them as represented by the change of the left side of the decimal point.
1.11 “Memory Stick HG Micro Hardware” shall mean any hardware for the Memory Stick PRO System, which is manufactured by or for Hardware Licensee under the license granted by Sony or SanDisk, and which conforms to, at least, all or portion of the Memory Stick HG Micro Specification in accordance with the terms and conditions of the license agreement under which such license is granted by Sony or SanDisk.
1.12 “Memory Stick HG Micro Specification” shall mean the technical specification which is made by Sony and SanDisk and titled as “Memory Stick Standard Memory Stick HG Micro Format Specification ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include the major revisions thereof as represented by the change of the left side of the decimal point.
1.13 “Memory Stick Micro Connector Specification” shall mean the technical specification which is made by Sony and SanDisk and titled as “Memory Stick Micro Connector Design Specifications ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include major revision of them as represented by the change of the left side of the decimal point.
1.14 “Memory Stick Micro Hardware” shall mean any hardware for the Memory Stick PRO System, which is manufactured by or for Hardware Licensee under the license granted by Sony or SanDisk, and which conforms to, at least, all or portion of the Memory Stick Micro Specification in accordance with the terms and conditions of the license agreement under which such license is granted by Sony or SanDisk.
1.15 “Memory Stick Micro Specification” shall mean the technical specification which is made by Sony and SanDisk and titled “Memory Stick Standard Memory Stick Micro Format Specification ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include the major revisions thereof as represented by the change of the left side of the decimal point.
1.16 “Memory Stick PRO Duo Hardware” shall mean any hardware for the Memory Stick PRO System, which is manufactured by or for Hardware Licensee under the license granted by Sony or SanDisk, and which conforms to, at least, all or portion of the Memory Stick PRO Duo Specification in accordance with the terms and conditions of
the license agreement under which such license is granted by Sony or SanDisk.
1.17 “Memory Stick PRO Duo Specification” shall mean the technical specification which is made by Sony and SanDisk and titled “Memory Stick Standard Memory Stick PRO Duo Format Specification ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include its major revisions thereof as represented by the change of the left side of the decimal point.
1.18 “Memory Stick PRO Hardware” shall mean any hardware for the Memory Stick PRO System, which is manufactured by or for Hardware Licensee under the license granted by Sony or SanDisk, and which conforms to, at least, all or portion of the Memory Stick PRO Specification Non-Security Version in accordance with the terms and conditions of the license agreement under which such license is granted by Sony or SanDisk.
1.19 “Memory Stick PRO-HG Duo Connector Specification” shall mean the technical specification which is made by Sony and SanDisk and titled as “Memory Stick PRO-HG Duo Connector Design Specification ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include major revision thereof as represented by the change of the left side of the decimal point.
1.20 “Memory Stick PRO-HG Duo Hardware” shall mean any hardware for the Memory Stick PRO System, which is manufactured by or for the Hardware Licensee, and which conforms to, at least, all or portion of the Memory Stick PRO-HG Duo Specification in accordance with the terms and conditions of the license agreement under which such license is granted by Sony or SanDisk.
1.21 “Memory Stick PRO-HG Duo Specification” shall mean the technical specification which is made by Sony and SanDisk and titled “Memory Stick Standard Memory Stick PRO-HG Duo Format Specification ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include its major revisions thereof as represented by the change of the left side of the decimal point.
1.22 “Memory Stick PRO Specification Non-Security Version” shall mean the technical specification which is made by Sony and SanDisk and titled “Memory Stick Standard Memory Stick PRO Format Specifications -without security specifications- ver.1.0”, and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include major revisions thereof as represented by the change of the left side of the decimal point.
1.23 “Memory Stick Standard Specification” shall mean the technical specification which is made by Sony and titled as “Memory Stick Standard Format Specifications ver.1.3” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include its major revisions thereof as represented by the change of the left side of the decimal number.
1.24 “Memory Stick XC Duo Hardware” shall mean any hardware for the Memory Stick PRO System, which is manufactured by or for Hardware Licensee under the license granted by Sony or SanDisk, and which conforms to, at least, all or portion of the Memory Stick XC Duo Specification in accordance with the terms and conditions of the license agreement under which such license is granted by Sony or SanDisk.
1.25 “Memory Stick XC Duo Specification” shall mean the technical specification which is made by Sony and SanDisk and titled “Memory Stick Standard Memory Stick XC Duo Format Specification ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include its major revisions thereof as represented by the change of the left side of the decimal point.
1.26 “Memory Stick XC-HG Duo Hardware” shall mean any hardware for the Memory Stick PRO System, which is manufactured by or for Hardware Licensee under the license granted by Sony or SanDisk, and which conforms to, at least, all or portion of the Memory Stick XC-HG Duo Specification in accordance with the terms and conditions of the license agreement under which such license is granted by Sony or SanDisk.
1.27 “Memory Stick XC-HG Duo Specification” shall mean the technical specification which is made by Sony and SanDisk and titled “Memory Stick Standard Memory Stick XC-HG Duo Format Specification ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include its major revisions thereof as represented by the change of the left side of the decimal point.
1.28 “Memory Stick XC-HG Micro Hardware” shall mean any hardware for the Memory Stick PRO System, which is manufactured by or for Hardware Licensee under the license granted by Sony or SanDisk, and which conforms to, at least, all or portion of the Memory Stick XC-HG Micro Specification in accordance with the terms and conditions of the license agreement under which such license is granted by Sony or SanDisk.
1.29 “Memory Stick XC-HG Micro Specification” shall mean the technical specification which is made by Sony and SanDisk and titled “Memory Stick Standard Memory Stick XC-HG Micro Format Specification ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include its major revisions thereof as represented by the change of the left side of the decimal point.
1.30 “Memory Stick XC Micro Hardware” shall mean any hardware for the Memory Stick PRO System, which is manufactured by or for Hardware Licensee under the license granted by Sony or SanDisk, and which conforms to, at least, all or portion of the Memory Stick XC Micro Specification in accordance with the terms and conditions of the license agreement under which such license is granted by Sony or SanDisk.
1.31 “Memory Stick XC Micro Specification” shall mean the technical specification which is made by Sony and SanDisk and titled “Memory Stick Standard Memory Stick XC Micro Format Specification ver.1.0” and the updated versions thereof as represented by the change in the version number only at the right side of the decimal point, but shall not include its major revisions thereof as represented by the change of the left side of the decimal point.
1.32 “Specifications” shall mean the Memory Stick Connector Specifications, the Memory Stick Duo Connector Specification, the Memory Stick HG Micro Connector Specifications, the Memory Stick Micro Connector Specifications and the Memory Stick PRO-HG Duo Connector Specification, collectively.
ARTICLE II GRANTS OF LICENSE
2.01 Subject to the terms and conditions of this Agreement, during the term of this Agreement, Sony hereby grants to Company a non-exclusive, non-transferable, indivisible license under the Specifications to design, develop, manufacture, use, offer for sale, sell, distribute or otherwise dispose of the Licensed Products in all countries of the world, only to the Hardware Licensee who is granted the license by Sony and/or SanDisk to manufacture and sell the applicable Hardware into which the Licensed Product is supposed to be incorporated as set forth in the respective definition for such Licensed Product in Article I hereof. The license granted to the Company as above shall not include the right to have the Licensed Products manufactured by any third party.
2.02 Except as expressly provided in Paragraphs 2.01 above, no other license, express or implied, by estoppel or otherwise, to any other Sony’s intellectual property rights is granted herein.
ARTICLE III
DISCLOSURE OF SPECIFICATIONS
3.01 After execution of this Agreement, Sony shall make available to Company for use by Company the then current version of the Specifications for the purpose of the exercise of the rights granted in Paragraph 2.01 hereof.
3.02 Sony may at its option revise all or any part of the Specifications at any time, provided that Sony shall so notify Company in writing after Sony revises the Specifications, and shall make available to Company the revised version of such Specifications. Thereafter, Company shall only use the revised Specifications in the exercise of the rights granted in Paragraph 2.01 hereof.
3.03 Company shall not modify, reproduce or distribute the Specifications without Sony’s prior written consent.
ARTICLE IV QUALITY CONTROL
4.01 Company warrants that all of the Licensed Products manufactured by Company hereunder shall comply with the latest version of the applicable Specifications for such Licensed Products at the time of the finish of design and development thereof.
4.02 Company shall not sell, offer for sale or distribute the Licensed Product unless such Licensed Product complies with the latest version of the applicable Specifications at the time of the finish of design and development thereof.
4.03 For the purpose of quality control of the Licensed Products, Sony has the right to verify whether the Licensed Products manufactured by the Company hereunder comply with the latest version of the applicable Specifications for such Licensed Products at the time of the finish of design and development thereof.
Company shall, at its own expense, submit to Sony a reasonable number of samples of the Licensed Products manufactured by Company, if Sony requires Company to submit such samples for the purpose of exercising its right of verification.
ARTICLE V PATENT MARKINGS
5.01 Upon Sony’s request, Company shall place appropriate patent markings on an exposed surface or package of the Licensed Product manufactured and/or sold hereunder or on a package thereof. The content, form, location and language used in such markings shall be in accordance with the laws and practices of the country where such markings are used.
5.02 Company agrees that every Licensed Product manufactured or sold under this Agreement shall have permanently affixed thereto an identifying mark or insignia acceptable to Sony, which mark or insignia shall serve as an indicia of origin of the Licensed Product.
ARTICLE VI LICENSE FEE
The license granted pursuant to Paragraph 2.01 above shall be free during the term of this Agreement.
ARTICLE VII
DISCLAIMER AND LIMITATION OF LIABILITY
7.01 EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SPECIFICATIONS AND ALL OTHER INFORMATION AND MATERIALS ARE LICENSED AND/OR PROVIDED BY SONY TO COMPANY HEREUNDER “AS IS”.
SONY AND SANDISK MAKE NO REPRESENTATION OR WARRANTY AS TO THE VALUE OR UTILITY OF THE SPECIFICATIONS, OR OTHER INFORMATION AND MATERIAL SUPPLIED PURSUANT TO THIS AGREEMENT, OR THE ABILITY OF COMPANY TO MAKE USE THEREOF TO SECURE INTERCHANGEABILITY OR INTEROPERABILITY WITH ANY PRODUCTS, EXPRESSLY INCLUDING THE LICENSED PRODUCTS. SONY AND SANDISK MAKE NO WARRANTY WHATSOEVER THAT THE USE OF THE SPECIFICATIONS OR OTHER INFORMATION AND MATERIALS SUPPLIED PURSUANT TO THIS AGREEMENT, AND ANY LICENSED PRODUCTS DESIGNED, DEVELOPED AND/OR MANUFACTURED UNDER, PURSUANT TO OR IN ACCORDANCE WITH THE APPLICABLE SPECIFICATIONS OR OTHER INFORMATION OR MATERIALS, DO NOT INFRINGE OR WILL NOT CAUSE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OWNED OR CONTROLLED BY ANY THIRD PARTY. SONY AND SANDISK MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION THAT
MIGHT ARISE FROM ANY ACTIVITIES OR INFORMATION DISCLOSURES RELATING TO THIS AGREEMENT.
7.02 IN NO EVENT SHALL SONY BE LIABLE UNDER OR IN RELATION TO THIS AGREEMENT, UNDER ANY CIRCUMSTANCES OR ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES WHATSOEVER, EXPRESSLY INCLUDING, WITHOUT LIMITATION, LOST PROFITS. ANY AND ALL LIABILITY OF SONY UNDER OR IN RELATION TO THIS AGREEMENT, UNDER ANY CIRCUMSTANCES OR ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED IN ALL CASES TO DIRECT DAMAGES ONLY WHICH IN THE AGGREGATE, SHALL NOT EXCEED THE TOTAL FEE PAID BY COMPANY TO SONY PURSUANT TO THIS AGREEMENT HEREUNDER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND EVEN IF SONY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.03 COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL SANDISK BE LIABLE UNDER OR IN RELATION TO THIS AGREEMENT, UNDER ANY CIRCUMSTANCES OR ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES WHATSOEVER, EXPRESSLY INCLUDING, WITHOUT LIMITATION, LOST PROFITS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND EVEN IF SANDISK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE VIII CONFIDENTIALITY
8.01 Company shall keep in confidence and not disclose or disseminate to any third party the Confidential Information and shall not use the Confidential Information for any purpose other than the purpose of the exercising the rights granted under this Agreement hereof.
8.02 In order to protect the Confidential Information as required in Paragraph 8.01 hereof, Company shall undertake the following:
(a) not to disclose the Confidential Information to any person other than its officers and employees whose duties justify a need-to-know and who have executed a written instrument in which such officers and employees have agreed not to disclose and to hold confidential all confidential information, inclusive of that of third parties, which may be disclosed to them or to which they may have access during the course of their duties;
(b) to use the same degree of care, but not less than a reasonable degree of care, to avoid disclosure, publication or dissemination of the Confidential Information as Company would use with respect to its own confidential information, and to ensure that all tangible materials relating to or containing the Confidential Information be maintained in certain areas or storages which are secluded from any access of third parties or its officers or employees whose duties do not justify a need-to-know and plainly marked to indicate the confidential nature thereof to prevent unauthorized use or reproduction thereof;
(c) not to make copies or reproductions of the Confidential Information which is clearly marked “Don’t Copy”, “Do Not Copy” or other similar instruction of similar nature at the time of disclosure; and
(d) under no circumstances, to reverse engineer, reverse translate, decompile, disassemble or otherwise seek to determine the operation of the Confidential Information or allow third parties to do so.
8.03 Notwithstanding the provisions of Paragraphs 8.01 and 8.02 above, the obligations set out therein shall not apply to any portion of the Confidential Information which Company can prove:
(a) was already known to Company at the time of disclosure;
(b) was already publicly known at the time of disclosure to Company;
(c) is or becomes publicly known through no fault of Company;
(d) is rightfully obtained by Company without restriction on disclosure or use;
(e) was or is independently developed by officers or employees of Company who have not had access to the Confidential Information.
8.04 If Company is required to disclose any of the Confidential Information by an administrative or judicial action, Company may so disclose such Confidential Information; provided that Company attempts to maintain the confidentiality of such Confidential Information by asserting in such action applicable privileges and immediately after receipt of notice of such action notifies Sony of such action to give Sony the opportunity to seek any other legal remedies to maintain such Confidential Information in confidence as herein provided.
8.05 The confidentiality obligations under this Article VIII shall survive for ten (10) years after the termination or expiration of this Agreement under any circumstances whatsoever.
8.06 Company acknowledges that any breach of this Article VIII will cause irreparable damage on Sony, for which monetary compensation would be inadequate, and therefore Company agrees that Sony shall be entitled to obtain timely injunctive and/or other equitable relief to protect its respective rights under this Article VIII, in addition to any and all rights and/or remedies available at law and/or under this Agreement.
ARTICLE IX
TERM AND TERMINATION
9.01 This Agreement shall be effective from the date first above written and, unless otherwise terminated, shall continue in full force and effect for five (5) years thereafter.
9.02 Either party shall have the right to terminate this Agreement upon at least thirty (30) days prior written notice to the other party in the event that the other party breaches any provision of this Agreement and does not cure such breach during said thirty (30) day period, or immediately if the other is adjudicated a bankrupt;
makes an assignment for the benefit of creditors; takes advantage of any insolvency act; or is the subject of a case for its liquidation or reorganization under any law.
Notwithstanding the foregoing, in the event Company breaches any provision of Article VIII, Sony may terminate this Agreement immediately upon notice to Company.
Any notice of termination hereunder shall specify the date on which this Agreement shall end.
9.03 Paragraphs 9.02, 9.03 and 9.04 hereof, and Articles VII, VIII and X hereof shall survive any termination or expiration of this Agreement.
9.04 Upon termination or expiration of this Agreement, Company shall
immediately cease use of the Specifications and all other information and materials provided to Company by Sony hereunder. Within thirty (30) days after termination or expiration of this Agreement, Company shall, as directed by Sony, (i) return all Confidential Information (including, but not limited to the Specifications) in Company’s possession to Sony, retaining no copies thereof, or (ii) destroy and/or erase all Confidential Information (including, but not limited to the Specifications) in Company’s possession, retaining no copies thereof, and certify such destruction and/or erasure in writing to Sony.
ARTICLE X MISCELLANEOUS
10.01 Company shall not assign or transfer any of its rights or obligations hereunder without the prior written consent of Sony.
10.02 Should any provision of this Agreement be finally determined void or unenforceable in any judicial proceeding, such determination shall not affect the operation of the remaining provisions hereof, provided that, in such event, Sony shall have the right to terminate this Agreement by written notice to Company without incurring any obligation and/or liability to Company.
10.03 Nothing contained in this Agreement shall be construed:
(a) as imposing on Sony any obligation to institute any suit or action for infringement of any of the intellectual property rights licensed or referred to hereunder or embodied in the Specifications herein (hereinafter collectively referred to as the “Sony Intellectual Property Rights”), or to defend any suit or action brought by a third party which challenges or concerns the validity of any of such Sony Intellectual Property Rights. It is being expressly understood and agreed by Company that Company shall have no right to institute any such suit or action for infringement of any of such Sony Intellectual Property Rights, nor the right to defend any such suit or action which challenges or concerns the validity of any of such Sony Intellectual Property Rights;
(b) as imposing on Sony any obligation to file any patent and/or copyright application, to secure any patent and/or copyright or to maintain any patent and/or copyright in force;
(c) as conferring any license or right to copy or to simulate the appearance and/or design of any product of Sony to Company, except as expressly
provided herein;
(d) as conferring any transference to Company of any of the Sony Intellectual Property Rights;
(e) as conferring any license to Company under the Sony Intellectual Property Rights to design, develop, manufacture, use, sell, distribute or otherwise dispose of any product or device other than the Licensed Products;
(f) as conferring any license to Company under any intellectual property rights of Sony, other than as expressly provided in this Agreement;
(g) as imposing on Sony any obligation to furnish any person to Company for the purpose of any assistance of any kind whatsoever, or an information or documentation other than the Specifications and revisions thereof, to be furnished pursuant to Paragraphs 3.01 and 3.02;
or
(h) without limiting the terms of Article VII, as conferring a warranty, assurance or representation by Sony to Company as to quality level, no-defect, compatibility or completeness for any of the Licensed Products manufactured by Company notwithstanding the quality control procedure pursuant to Article IV hereof.
10.04 If at any time a party shall elect not to assert its rights under any provision of this Agreement, such action or lack of action in that respect shall not be construed as a waiver of its rights under said provision or of any other provision of this Agreement.
10.05 Company shall comply with all applicable export control laws, copyright protection laws or all other relevant laws and regulations of Japan and other countries related to activities under this Agreement. Company shall obtain any approval or authorization from Japanese or other governments as required under such laws and regulations at its own cost and expense and at its own responsibility.
10.06 All notice and other communications required or permitted to be given under this Agreement must be in writing and will be effective when delivered personally, sent by facsimile or e-mail later confirmed by registered mail, or sent by registered mail, postage prepaid and addressed to the parties at their respective address set forth below, or at any new address or addresses subsequently designated in writing by either party to the other.
Sony: Sony Corporation Attention:
Address:
Company:
Attention:
Address:
10.07 This Agreement, its validity, its interpretation and performance shall be governed by the laws of Japan as if this Agreement were wholly executed and wholly to be performed in Japan.
10.08 All controversies and disputes between the parties hereto arising out of or relating to this Agreement shall be submitted to the Tokyo District Court in Japan as the Court of first instance. The parties hereto agree that the judgment, decree or order rendered by a Court of last resort or a Court of lower jurisdiction from which no appeal has been taken in Japan, as the case may be, shall be final and binding upon both parties.
10.09 This Agreement and all documents incorporated herein by reference, constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersede all oral, written or other agreements, expressly including the “Memory Stick - Player/Recorder Connector AGREEMENT”, the
“Memory Stick Micro - Player/Recorder Connector AGREEMENT” or the “Memory Stick PRO-HG Duo- Player/Recorder Connector AGREEMENT”, either entered prior to or contemporaneously with this Agreement. This Agreement may not be modified except by written agreement of the parties hereto.
10.10 In construing the terms of this Agreement, no presumption shall operate in either party’s favor as a result of its counsel’s role in drafting the terms hereof.
10.11 This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
The parties hereto acknowledge and agree that such counterparts may be executed by signatures sent by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed on the date first above written.
Sony: Company:
Sony Corporation ______________________
By: _________________________ By: _________________________
(Name) (Name)
(Title) (Title)
