Portions herein identified by [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Commission pursuant to Rule 406 of the Securities Act of 1933.] [PUREDEPTH LOGO] EXCLUSIVE SALES AND...
[Portions
herein identified by [***] have been omitted pursuant to a
request
for
confidential treatment and have been filed separately with
the
Commission
pursuant to Rule 406 of the Securities Act of 1933.]
[PUREDEPTH
LOGO]
EXCLUSIVE
SALES AND DISTRIBUTION LICENSE
Between
PureDepth,
Inc.
And
SANYO
Sales and Marketing Corporation
And
SANYO
Electric System Solutions Co., Ltd.
Exclusive
Sales and Distribution License
Date:
December 15, 2005
Parties
| 1. |
PureDepth,
Inc.
of
000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx, XXX (together with
its
subsidiaries, PureDepth Limited and PureDepth Incorporated Limited,
“PureDepth”)
|
| 2. |
SANYO
Sales and Marketing Corporation
of
0-00, Xxxxxxx-xxx 0-xxxxx, Xxxxxxxxx-xxx 000-0000, Xxxxx, Xxxxx,
and
SANYO
Electric System Solutions Co., Ltd.,
of 180 Omori Anpachi-cho, Anpachi-gun, 503-0195, Gifu, Japan (collectively
together with “Sanyo”)
|
Background
| A. |
Sanyo
is, among other things, a pre-eminent seller and distributor of certain
gaming products to the Market.
|
| B. |
PureDepth
is the exclusive owner of the MLD™
Technology.
|
| C. |
PureDepth
wishes to grant to Sanyo an exclusive license to incorporate the
MLD™
Technology into the Sanyo Product and then offer for sale, sell and/or
distribute Sanyo Product within the Market under the terms and subject
to
the conditions of this Agreement.
|
Terms
and Agreement
| 1. |
Definitions
and Interpretation
|
| 1.1 |
In
this Agreement and, in addition to those defined terms set out in
Schedule
1:
|
“Affiliate”
means
any entity that directly or indirectly Controls, or is Controlled by, or
is
under common Control with, Sanyo.
“Agreement”
means
this agreement, including the Schedules, Appendices, and/or addendums to
this
Agreement.
“Commencement
Date”
shall
have the meaning given to this term in Schedule
1.
“Confidential
Information”
means
and includes; all information and technology relating to the Intellectual
Property Rights, Product or the Sanyo Product, including without limitation,
manufacture methods, data, designs, plans, drawings, know-how, systems,
processes, schematics, blueprints, records, reports, models, prototypes,
descriptions, pricing, marketing and related business plans and customer
information related thereto, and including all information derived from the
above, which is disclosed by one party (“Disclosing
Party”)
to the
other party (“Receiving
Party”)
with
effect from 1 April 2005 (when the parties first met in relation to the context
of current commercial discussions, negotiations and agreements) to and inclusive
of the Commencement Date and otherwise during the Term, in written form or
in
any other tangible form.
1
“Control(s)”
and
“Controlled”
means;
for corporate entities, direct or indirect ownership of fifty percent (50%)
or
more of the stock or shares entitled to vote for the election of the board
of
directors or other governing body of the entity; and, for non-corporate
entities, direct or indirect ownership of fifty percent (50%) or greater
of the
equity interest.
“Copyright”
means
copyright held by PureDepth in any written material, plans, designs or other
work relating to the development, assembly, sale, and distribution of the
application of the Patent Rights in the Market.
“Default
Rate”
means
the percentage per annum calculated daily for the applicable period as set
out
in Schedule
1.
"Improvements"
means
modifications to, improvements in, developments from or additions to the
Product
during the Term.
"Intellectual
Property Rights"
means
all intellectual property rights including, but not limited to, the Patent
Rights, and the Copyright and the Trade Marks, trade names, trade secrets
and
know-how and show-how devised, developed or acquired by PureDepth and applied
in
the development, manufacture, assembly and sale of the MLD Technology as
well as
any designs independently developed by PureDepth, whether or not registered
or
protected by copyright, devised or acquired by PureDepth and applied in the
development, manufacture, assembly and sale of the MLD Technology, and, for
the
avoidance of doubt, includes all Improvements.
"Market"
means
the sale and distribution of [* * *] For the avoidance of
doubt, the "Market" does not include the general PC or handheld device
market.
"MLD
Technology"
is the
multi-layer display technology exclusively owned by PureDepth protected by
the
Patents and Copyright.
"MLD
Module"
means a
module including 2 or more screens in a stacked arrangement.
"NDA"
means
the confidentiality agreement signed between the parties shortly before the
Commencement Date and attached as Appendix
A
to this
Agreement.
"Product"
means
the MLD Modules, developed now or in the future, utilizing aspects of the
Patent
Rights for application to the products sold within the Market.
2
"Patents"
means
the Patents listed in Schedule
3
and any
patent granted upon the Patent Applications, and includes any patents of
which
PureDepth is the permitted user of worldwide and which relate to the MLD
Technology.
"Patent
Applications"
means
the Patent Applications listed in Schedule
3.
"Patent
Rights"
means
all and any of the rights under the Patents, Patent Applications, additions,
modifications, extensions, or continuations in the Market in favor of PureDepth,
and any patents granted upon the Patent Applications.
"Sale"
or
"sell"
or
"selling"
or
"sold"
means
the sale, transfer, or other disposition of a Unit of Sanyo Product by Sanyo,
either directly or through its Affiliates, to a customer.
"Sanyo
Product"
means
product which incorporates the Product or MLD Technology to be sold or
distributed to the Market by Sanyo.
"Term"
means,
unless otherwise terminated by operation of law or pursuant to the terms
of this
Agreement, the period set out in Schedule
1,
and,
where the context applies, the period of extension to the Term pursuant to
the
terms of this Agreement.
"Territory"
has the
meaning defined in Schedule
1.
"Trade
Marks"
means
the registered and unregistered trade marks of which PureDepth is the
proprietor, registered user or licensee, as the case may be.
“Unit”
means
in relation to Sanyo Product, a single unit of such product.
“Volume
Commitment”
has
the
meaning defined in Schedule
1.
Construction
| 1.2 |
In
the construction of this Agreement, unless the context requires
otherwise:
|
| a. |
A
reference to any document, including this Agreement, includes a reference
to that document as amended or replaced from time to
time.
|
| b. |
A
reference to “including”
or “includes”
means “includes
without limitation.”
|
| c. |
A
reference to a prohibition against doing anything includes a reference
to
not permitting, suffering or causing that thing to be
done.
|
| d. |
Where
a word or expression is defined in this Agreement, other parts of
speech
and grammatical forms of that word or expression have corresponding
meanings.
|
| e. |
A
reference to a party to this Agreement includes that party’s successors
and permitted assigns.
|
3
| f. |
A
reference to a person includes a corporation sole and also a body
of
persons, whether corporate or
unincorporated.
|
| g. |
For
the avoidance of doubt, any defined term shall have the same meaning
throughout this Agreement.
|
| h. |
A
reference to an enactment or statutory regulation is a reference
to that
enactment or regulation as amended, or to any enactment or regulation
that
has been substituted for that enactment or
regulation.
|
| i. |
References
to monetary amounts are to the currency of the United States of
America.
|
| j. |
Words
importing one gender include the other.
|
| k. |
Words
importing the singular or plural number include the plural and singular
number, respectively.
|
| l. |
A
reference to a clause is to a clause in this
Agreement.
|
| 2. |
The
Grant
|
| 2.1 |
For
the Term, but subject to the provisions of clause 2.3 and the payment
of
the agreed sums by Sanyo to PureDepth under the terms of this Agreement,
PureDepth grants to Sanyo:
|
| a. |
a
right to manufacture to PureDepth’s standard specifications and Trademarks
as well as an exclusive right to sell and/or distribute the Product
only
within the Market; and
|
| b. |
a
non-exclusive license under all the Patent Rights and Copyright
accordingly to manufacture to PureDepth’s standard specifications and
Trademarks, sell and/or distribute the Product only within the
Market.
|
| 2.2 |
The
rights licensed under this Agreement are personal to Sanyo. Sanyo
will not
assign or grant any sub-license in respect to these rights without
the
express prior written consent of PureDepth, which such consent will
not be
unreasonably withheld.
|
| 2.3 |
The
grant under clause 2.1 is conditional upon ongoing compliance with
any
conditions imposed by the Government or any regulatory authority
or body
of the relevant jurisdiction in the Market (if any) being met to
the
satisfaction of both parties in respect of any marketing, distribution,
selling and/or use of the Sanyo Product in the
Market.
|
| 3. |
PureDepth’s
Obligations
|
| 3.1 |
Until
such time as Sanyo elects otherwise, PureDepth undertakes to supply
Sanyo
with the Product for incorporation into the Sanyo Product on the
terms of
trade to be agreed between the parties separately from this
Agreement.
|
4
| 3.2 |
PureDepth
will provide technical advice and/or assistance to Sanyo in relation
to
the Product and/or the MLD Technology and its incorporation into
the Sanyo
Product as it reasonably considers necessary or otherwise within
a
reasonable period of time following receipt of a request for such
advice
or assistance by Sanyo.
|
| 3.3 |
PureDepth
will not intentionally bring Sanyo or the Sanyo Product into disrepute
or
otherwise intentionally damage the reputation of Sanyo or the Sanyo
Product.
|
| 3.4 |
During
the Term and subject to Sanyo's continuing compliance with the terms
of
this Agreement, PureDepth shall not grant any party other than Sanyo
any
right to use the Patents and Patent Application for the sale or
distribution of the Products within the Market, and shall not by
itself or
through any third party use the Patent Rights for the sale or distribution
of the Products within the Market.
|
| 4. |
Sanyo’s
Obligations
|
| 4.1 |
Sanyo
agrees and undertakes:
|
| a. |
to
use its best endeavors in relation to the business of selling and
merchandising Sanyo Product within the Market so as to create and
satisfy
maximum reasonable demand for the Product and/or MLD
Technology;
|
| b. |
to
actively promote the Sanyo Product;
|
| c. |
to
provide, on a best effort basis, sales forecasts for the
Product;
|
| d. |
not
to knowingly be involved in transacting business that involves the
use of
the Product outside the Market or involves use of the Product other
than
for the purposes set out in this
Agreement;
|
| e. |
not
intentionally bring the Trademarks into disrepute or otherwise
intentionally damage the reputation of PureDepth, the Product or
the MLD
Technology.
|
| 5. |
Royalties,
Minimum Volumes and Payment
|
| 5.1 |
Sanyo
will pay PureDepth a royalty for each unit of Product sold by Sanyo
itself
or incorporated into the Sanyo Product at both the rates and payment
terms
set out in Schedule
1.
|
| 5.2 |
During
the Term, Sanyo shall purchase from PureDepth or manufacture by itself
or
its subcontractor in accordance with PureDepth's standard specifications
and Trademarks, the Products no less than the Volume Commitment during
the
period set forth in Schedule
1.
|
| 5.3 |
No
royalty will be owed or paid by Sanyo to PureDepth for any Sanyo
Product
supplied free of charge as an evaluation, sample or promotional unit,
provided, however, that net shipments of such units do not exceed
that
percentage of total Sanyo Product sold in any given year at the volume
percentage set out in Schedule
1.
|
5
| 5.4 |
For
the avoidance of doubt, where a Unit of Sanyo Product contains more
than
one Product, then the royalty rate payable will be multiplied by
the
number of Products in each such Unit.
|
| 5.5 |
Sanyo
will be responsible for paying:
|
| a. |
all
taxes, imposts, tariffs, duties and other Governmental or regulatory
requirements of whatever nature on sales of the Product or Sanyo
Product
sold by Sanyo;
|
| b. |
Default
Rate interest to PureDepth on all monies not paid by due date from
such
due date until payment in full is made;
and
|
| c. |
the
legal costs of PureDepth in the event of default under subclause
b.
above.
|
| 6. |
Accurate
Records and Audit Right
|
| 6.1 |
Sanyo
will keep or cause to be kept, true and accurate books and records
with
respect to sales of Products and Units of Sanyo Product covered by
this
Agreement in accordance with generally accepted accounting principles
and
in a manner consistent with the accounting methods employed by best
business practice.
|
| 6.2 |
Within
the periods set out in Schedule
1,
Sanyo will furnish to PureDepth a report in writing containing full
particulars of the sales of Units of Sanyo Product during the
period.
|
| 6.3 |
PureDepth
will have the right, at its own expense, to engage an independent,
certified public accounting firm to examine the relevant books and
records
of Sanyo and its Affiliates who have sold the Products or Sanyo Product
at
any reasonable time during business hours after notifying Sanyo of
its
desire to do so in writing. Except for the disclosure of financial
information to PureDepth or except as otherwise required by law,
regulation or legal process, such accounting firm will be required
to
maintain the confidentiality of all financial or other non-public
information of Sanyo and its Affiliates who have sold the Sanyo Product.
The examination will be no more than once each year and will cover
no more
than the preceding three (3) anniversary years. Except in the case
of an
intentional failure to disclose or omission by Sanyo or its Affiliates
or
agents, no year may be audited more than once. The examination will
be
solely for the purpose of determining the compliance by Sanyo of
its
reporting and payment obligations under this Agreement. In the event
that
an examination discloses an error by Sanyo (for whatever reason)
of more
than 5% the of royalties paid or due to PureDepth for the period
under
audit, Sanyo will fully indemnify PureDepth for all PureDepth's costs
and
expenses of the examination, and the amount of the error due to
PureDepth.
|
| 7. |
Patent
Rights and Infringement
|
| 7.1 |
PureDepth
warrants that:
|
| a. |
it
is the sole owner of the Patent Rights and
Copyright;
|
6
| b. |
has
the power and legal authority to grant this license and enter into
this
Agreement with Sanyo;
|
| c. |
it
will make reasonable endeavors to ensure the accuracy of any claims
it may
make to Sanyo relating to the Product and the MLD Technology;
and
|
| d. |
to
the best of its knowledge and belief, its Patent Rights and the Product
do
not infringe the patent rights of any third party, but makes no other
warranties other than those explicitly provided in this
Agreement.
|
| 7.2 |
Whilst
PureDepth believes that the rights comprising the grant under clause
2.1
are novel, PureDepth will not be liable or under any obligation in
any way
to compensate or reimburse Sanyo for any loss (and, for the avoidance
of
doubt, and without limitation “loss” shall include any indirect, special,
incidental, economic, consequential, and/or exemplary damages or
losses
suffered by Sanyo) arising out of or flowing
from:
|
| a. |
any
action in the relevant jurisdiction in the Market that such third
party's
intellectual property rights in that jurisdiction have been infringed
including a claim by a third party that prior art exists such that
Sanyo
is prevented using the rights granted to it under this Agreement;
or
|
| b. |
any
genuine (i.e. reasonable and not merely vexatious) action by a third
party
which seeks to prevent Sanyo from manufacturing or and or selling
the
Sanyo product.
|
| 7.3 |
PureDepth
will defend, indemnify, and hold harmless Sanyo from and against
any and
all claims, liabilities, demands, causes of action, damages, losses
and
expenses, including, without limitation, reasonable attorney's fees
and
costs of suit, arising out of or in connection with any third party
claim
falling within the subject matter of subclauses a. and b. of clause
7.2
above but, in any event or circumstance, subject to and conditional
upon
the following:
|
| a. |
the
aggregate claims for indemnity made by Sanyo pursuant to and as permitted
by clause 7.2 will in each consecutive [* * *] period of
trading as from the date of launch of the Sanyo Product to any
jurisdiction within the Market be limited to that amount determined
in
accordance with the formula set out in Schedule
1;
|
| b. |
payment
by PureDepth under any indemnity claim by Sanyo pursuant to and as
permitted by clause 7.2 are conditional
upon:
|
| i. |
a
successful claim by a third party against Sanyo within the subject
matter
of sub clause a. and b. of clause 7.2 in a competent court in the
relevant
jurisdiction and, if required by PureDepth, it must be proven by
the order
of a competent court in the relevant jurisdiction that such claim
falls
within the subject matter of sub clause a. or b. of clause 7.2;
and
|
7
| ii. |
any
settlement made by Sanyo in relation to a third party infringement
claim
falling within the subject matter of sub-clauses a. or b. of clause
7.2
being agreed to by PureDepth;
|
| c. |
whether
or not PureDepth is a party to any court proceedings that may reasonably
lead to a decision and/or order of the type referred to in subclause
b. of
this clause 7.3, Sanyo must promptly notify PureDepth of such proceedings
and must fully cooperate with and permit PureDepth to take an active
part
in such proceedings throughout, and Sanyo must not reach a settlement
of
any such claim without PureDepth’s prior written consent (which must have
regard to PureDepth's professional legal and insurance advice but
subject
to this will not be unreasonably withheld);
and
|
| d. |
in
no circumstances will PureDepth be liable for, or indemnify Sanyo
for, a
claim arising out of or flowing from Sanyo’s application of the Sanyo
Product in the Market.
|
| 7.4 |
Sanyo:
|
| a. |
acknowledges
PureDepth’s claim that PureDepth is the sole owner of the Intellectual
Property Rights;
|
| b. |
undertakes
not to, and will not, at any time challenge or otherwise call into
question the validity of any of the Intellectual Property Rights;
and
|
| c. |
undertakes
not to, and will not, take any action which may prejudice or harm
the
Intellectual Property Rights or the ownership by PureDepth of the
rights
comprised in the Intellectual Property Rights.
|
| 7.5 |
Sanyo
will promptly give notice in writing to PureDepth of any infringement
or
threatened infringement of the Intellectual Property Rights which
comes to
its notice.
|
| 7.6 |
In
the event of any infringement of the Patent Rights or the Copyright,
PureDepth will take action to stop the infringement. In the event
that any
such infringement is within the Market, PureDepth will take action
to stop
the infringement, at the expense of PureDepth. PureDepth may take
action
on its own account and at its own expense for infringement. Sanyo
may take
action on its own account as well and in its own name, or in the
name of
PureDepth if PureDepth consents, with respect to the potential
infringement action. In this latter event, Sanyo will indemnify and
keep
indemnified PureDepth against all costs and expenses in respect of
any
such action.
|
| 7.7 |
In
the event that Sanyo's utilization of the grant under this Agreement
is
claimed to infringe any third party's rights within the Market, both
PureDepth and Sanyo will consult in good faith before PureDepth determines
how best to handle such a claim.
|
| 8. |
Improvements
|
8
| 8.1 |
PureDepth
will, as soon as practicably possible, advise Sanyo of any Improvements
as
far as it or they relate to the Product or Sanyo Product. Sanyo will
be
entitled, upon request, under this license to those improvements
in the
Market for and within the purposes set out in this
Agreement.
|
| 8.2 |
All
Improvements falling within the scope of the Patent Rights which
come into
the knowledge of Sanyo will without delay (and in any event within
30
days) be disclosed in confidence to
PureDepth.
|
| 8.3 |
Sanyo
acknowledges that no title to or ownership of the MLD Technology
or the
Intellectual Property Rights is transferred to Sanyo pursuant to
this
Agreement, and PureDepth reserves all Intellectual Property Rights
in the
MLD Technology and any Improvements developed by Pure Depth. [* *
*]
|
| 9. |
Brand
Marking
|
| 9.1 |
Sanyo
will provide an appropriate notation on each Product, packaging,
marketing, or other materials associated with each Product or Sanyo
Product, stating that the Sanyo Product includes the MLD Technology
made
under license from PureDepth and an appropriate identification of
the
Patent Rights applicable to such Sanyo Product. The form and content
of
the notation will be provided by PureDepth and agreed by
Sanyo.
|
| 10. |
Term,
Termination and Renewal
|
| 10.1 |
Unless
earlier terminated under clauses 10.2 or 10.3, this Agreement will
begin
at the Commencement Date and will continue until the earliest of
the
following:
|
| a. |
expiry
of the Copyright or of all of the Patent Rights;
or
|
| b. |
the
parties mutually agreeing in writing to terminate this Agreement;
or
|
| c. |
the
expiry of the Term, unless renewed pursuant to the terms of this
Agreement.
|
| 10.2 |
This
Agreement may be terminated by either party by written notice if
(i) the
other party commits a breach of this Agreement and has failed to
remedy
the breach within 60 days of receipt of written notice from the other
party requiring it to do so, or (ii) Either party has a person in
the
nature of an insolvency manager or receiver appointed for the whole
or any
part of its assets, or if an order is made or a resolution is passed
for
its liquidation (unless as a part of a scheme for reconstruction
or
amalgamation);.
|
| 10.3 |
or
|
9
If
Sanyo
takes any action or causes or induces or supports any action to call into
question the validity of the Patent Rights, then, PureDepth may by notice
to
Sanyo, immediately terminate this Agreement.
| 11. |
Insurance
|
| 11.1 |
Sanyo
will at all times during the term of this Agreement maintain effective
product liability insurance cover throughout the Market in respect
of the
Sanyo Product. Such cover will amount to no less than [* *
*] per occurrence and annual aggregate. The insurance policy
or policies will not be cancelled without giving at least fifteen
(15)
days prior written notice from Sanyo to
PureDepth.
|
| 12. |
Publicity
and Confidentiality
|
| 12.1 |
Each
party will, prior to the release of any public statements relating
to this
Agreement, whether that is the fact of its existence or any details
under
it, seek the consent of the other party to the form of such release,
which
consent will be promptly given and will be unreasonably
withheld.
|
| 12.2 |
The
parties acknowledge and agree that, in order to ensure an effective
and
successful working relationship, they will each be forthcoming and
an
ongoing basis to share Confidential Information pertinent to the
commercial purposes set out in this Agreement, but they will not
be
required to share any Confidential Information beyond such
purposes.
|
| 12.3 |
Accordingly,
with the exception of the provisions of clause 12.1, the provisions
of the
NDA relating to the protection and disclosure of Confidential Information
(other than its term which will be hereby extended to match the Term),
will be incorporated into this Agreement by reference, provided that,
if
there is any conflict in the interpretation of the provisions of
this
Agreement and the provisions of the NDA, then the parties agree that
the
provisions of this Agreement will prevail in all
respects.
|
| 12.4 |
Without
limiting clause 12.2, the Receiving Party agrees not
to:
|
| a. |
use
any Confidential Information, either directly or indirectly, in a
manner
which will damage the legitimate interests of the Disclosing Party;
or
|
| b. |
hold
itself out or represent itself as otherwise associated with the Disclosing
Party, other than for the purposes evidenced by this Agreement, unless
the
Receiving Party has first obtained the written consent of the Disclosing
Party, which such consent will not be unreasonably
withheld.
|
| 13. |
Dispute
Resolution
|
| 13.1 |
Any
dispute under this Agreement that arises between the parties will
in the
first instance be referred to the chief executive officer or equivalent
office holder for each of the parties. The chief executive officers
will
promptly give full written particulars of the dispute to the other
and, in
good faith, enter into discussions to try and resolve the dispute
in a
timely manner.
|
10
| 13.2 |
In
case an amicable settlement could not be reached within thirty (30)
days
after commencing settlement discussion, such disputes, differences
or
controversies shall be referred to arbitration in Osaka, Japan in
accordance with the Commercial Arbitration Rules of the Japan Commercial
Arbitration Association as in force at that time, if initiated by
PureDepth, and in Los Angeles, California in accordance with the
rules of
the American Arbitration Association if initiated by Sanyo. The number
of
arbitrators will be three (3). The language to be used in arbitral
proceeding will be English.
|
| 13.3 |
This
clause 13 does not apply to:
|
| a. |
any
dispute arising in connection with any attempted re-negotiation of
this
Agreement; or
|
| b. |
an
application by either party for urgent injunctive
relief.
|
| 14. |
General
Provisions
|
| 14.1 |
Entire
Agreement:
This Agreement (including the NDA, as amended) sets out the entire
agreement and understanding between the parties as at the Commencement
Date relating to the Product and Sanyo Product and the Intellectual
Property Rights and no modifications or amendments will be effective
unless made in writing and signed by the parties to this
Agreement.
|
| 14.2 |
Requisite
Authority:
Both parties confirm they each have the full and requisite authority
to
enter into this Agreement and give effect the undertakings given
by each
of them under it.
|
| 14.3 |
Good
Faith:
The parties agree to do any and all acts and things to execute and
deliver
any and all papers and documents necessary (including any assignments
or
related documentation of any Improvements) or appropriate to effect
the
intent and purpose of this Agreement.
|
| 14.4 |
Non
Circumvent:
The parties will not circumvent or attempt to circumvent the provisions
and/or intent of this Agreement.
|
| 14.5 |
Waiver:
Any waiver by either party of any rights arising from any breach
of any
term of this Agreement will not be construed as a continuing waiver
of
other breaches of the same or other terms of this Agreement by any
other
party.
|
| 14.6 |
Severability:
Should any part or provision of this Agreement be held unenforceable
or in
conflict with the applicable laws or regulations of any jurisdiction,
the
invalid or unenforceable part or provision will be replaced with
a
provision which accomplishes, and to such extent as possible, the
original
business purpose of the part or provision in a valid and enforceable
manner, and the remainder of the Agreement will remain binding on
the
parties.
|
11
| 14.7 |
Headings:
Headings contained in this Agreement have been inserted merely to
facilitate reference and will have no bearing upon the interpretation
of
any of the provisions of this Agreement.
|
| 14.8 |
Giving
Notices:
Any notice or communication, document or demand requiring to be made
or
served pursuant to this Agreement will be in writing signed by the
party
giving the notice or by any officer or other representative of that
party
and served at the addresses set out in Schedule
2
or
in respect of a party to such other address as that party may also
have
advised to the other by at least five (5) working day's notice, and
any
notice or document shall be deemed to be duly given or
made:
|
| a. |
Personal
Delivery:
If delivered by hand, when so delivered;
|
| b. |
Facsimile:
If sent by facsimile, when the sender receives confirmation by answer
back
or if the sending machine confirms that the transmission was
successful;
|
| c. |
Posting:
If sent by post, on the tenth (10) working day following posting;
and
|
| d. |
Email:
If sent by email, upon the earlier of; receipt by the sending party
of
confirmation of successful delivery; or two (2) working days after
dispatch, provided that, the sending party does not receive any indication
of failure, or delay, of delivery within two (2) working days after
dispatch.
|
| 14.9 |
Receiving
Notices:
Any notice, communication, document or demand which, but for this
clause
would be deemed to be received after 5pm, at the place of receipt,
on a
working day or on a day which is not a working day, shall be deemed
to be
received at 8.30am on the next following working day (Pacific Standard
Time).
|
| 14.10 |
Statutory
Holidays:
For the purpose of this clause relating to the giving of notice,
"working
day" will be interpreted with respect to the statutory holidays in
relation to the location of the
recipient.
|
| 14.11 |
Costs:
Each of the parties will bear its own legal and other costs relating
to
the preparation and execution of this
Agreement.
|
| 14.12 |
No
Partnership or Agency:
Nothing in this Agreement will create a partnership or agency between
any
of the parties unless expressly provided.
|
| 14.13 |
Force
Majeure:
Neither party will be responsible to the other for delay or failure
in
performance of any of the obligations imposed by this Agreement,
provided
that, such failure will be occasioned by fire, flood, explosion,
lightning, windstorm, earthquake, subsidence of soil, failure of
machinery
or equipment or supply of materials, discontinuity in the supply
of power,
court order or governmental interference, civil commotion, riot,
act of
terrorism, war, strikes, labor disturbances, transportation difficulties,
labor shortage, natural genetic variations of any living matter or
by any
cause of like or unlike nature beyond the reasonable control and
without
the fault or negligence of such parties.
|
12
| 14.14 |
Each
party must immediately notify the other party of the existence of
a force
majeure event.
|
| 14.15 |
The
parties will promptly discuss how the force majeure event (if it
is
accepted by both as such) is to be handled in the context of this
Agreement.
|
| 14.16 |
Survivability:
Notwithstanding any provision of this Agreement to the contrary,
clauses
intended by their nature to survive termination of this Agreement,
will do
so.
|
| 14.17 |
Counterparts:
This Agreement may be executed in counterparts (which may be facsimile
copies) and all of which, when taken together constitute the one
document.
|
| 14.18 |
Governing
Law:
The formation, validity, construction and performance of this Agreement
will be governed by and interpreted in accordance with the laws of
Japan,
excluding any rule or principle of the conflict of laws that might
otherwise refer the interpretation or construction of this Agreement
to
the law of any other jurisdiction.
|
| 14.19 |
Notice
of claim:
Each party to this Agreement will give to the other party immediate
notice
of any suit or action filed and prompt notice of any claim made against
the party arising out of the performance of this
Agreement.
|
| 14.20 |
Language:
This Agreement is executed and interpreted in the English language
only.
No translation of this Agreement into any other language will be
of any
force or effect in the interpretation of this Agreement or in a
determination of the intent of any of the parties
hereto.
|
| 14.21 |
Further
Agreement:
The parties acknowledge and agree, this Agreement sets out all the
fundamental matters as at the Commencement Date which have been agreed
between the parties and is a binding document as and from the Commencement
Date. However, the parties may wish to record certain additional
matters
of detail within [* * *] of Commencement Date. Any such
additional matters will be duly recorded in writing, signed by the
parties
and incorporated as an addendum to this
Agreement.
|
13
EXECUTED
as an
Agreement
Signed
by
PureDepth,
Inc.:
| /s/ Xxxx X. Xxxxxxxxxxxx | |||
|
Director's signature |
| Xxxx X. Xxxxxxxxxxxx | |||
|
Director's full name |
Date:
12/15/05
|
Signed
by
SANYO
Sales and Marketing Corporation:
|
Signed by SANYO Electric Systems Solutions Co., Ltd. | ||
| /s/ Xxxxxxxx Xxxx | /s/ Akifum Xxxxx | ||
|
Director's signature |
Director's signature |
| Xxxxxxxx Xxxx | Akifum Xxxxx | ||
|
Director's full name |
Director's full name |
||
| Date: 12/26/05 | Date: 1/19/06 |
14
SCHEDULE
1
COMMERCIAL
TERMS
Note:
Capitalised terms will have the meaning given to such terms as set out in
this
Schedule 1 or the Agreement. If there is any conflict in interpretation,
then
the terms of this Schedule 1 will prevail.
|
Term,
Market, Territory and Renewal:
"Term"
means the period starting from [* * *] ("Commencement
Date")
on and until the date [* * *] date Sanyo Product is
approved by the Japanese government for the distribution in the
Territory.
"Market"
means the sale and distribution of [* * *]
"Territory"
means [* * *] only.
Exclusivity
in the Market is granted by PureDepth to Sanyo for the [* *
*].
Key
"Milestones"
for reference during the Term include:
Ø Commencement
Date to [* * *] –
[*
* *]
Ø [*
* *] – [*
* *];
and
Ø [*
* *] – [*
* *].
The
parties will agree in writing any required amendment to the above
timetable.
Any
right of renewal after the Term, including the possible extension
of both
exclusivity and Territory, will be subject to good faith negotiation
between the parties. Such negotiation will at least commence at
least
[* * *] before the expiry of the Term.
Default Rate: |
|
[*
* *]% per month on any overdue amounts.
|
|
Volume Commitment, Guaranteed Royalty, Payment Date and Associated Terms and Purchase Orders (clauses 5.1 and 5.2): Volume
Commitment:
Sanyo
will purchase at least [*
* *]
MLD Modules ("Volume
Commitment")
from PureDepth during the Term for integration into the Sanyo
Product.
[*
* *]
15
[*
* *]
Payment
Date and Associated Terms:
Sanyo
shall withhold from any royalty payable to PureDepth the amount
of any tax
imposed thereon in Japan. The Parties intend for the payments made
by
Sanyo to PureDepth to qualify for double-taxation relief to the
maximum
extent possible under the applicable Japan-United States tax treaty
and
each Party shall timely complete and file any and all documents,
filings,
registrations, etc. necessary to accomplish the foregoing. Sanyo
shall
send to PureDepth the official certificate of tax payment for such
tax.
All
payments made by Sanyo to PureDepth will be made in USD into a
bank
account nominated in writing by PureDepth to Sanyo.
Evaluation,
sample or promotional units shall not exceed [*
* *]%
of the Volume Commitment (clause 5.3).
Purchase
Orders:
If
Sanyo elects to utilize the current manufacturing operations managed
by
PureDepth, then orders for the Volume Commitment by Sanyo will
be made via
PureDepth. The terms of such purchase orders will be subject to
a separate
purchase order and acceptance to be completed as soon as is practicable
between the parties.
|
|
Period
for Sanyo to furnish PureDepth written reports containing full
particulars
of the sales of Units and Payment (clause 6.2):
In
case Sanyo purchases the Product from PureDepth or its subcontractor,
the
Royalty shall be added on the price of the Products. In case Sanyo
manufactures the Product by itself or its subcontractor, the Royalty
shall
be paid by as follows:
Sanyo
will provide reports to PureDepth [* * *] which will
contain the following minimum information:
Ø Number
of Products and Units manufactured; and
Ø Number
of MLD Modules per Unit (see clause 5.4a).
Such
reports will be certified true and correct by a Sanyo director/authorised
officer. Promptly after PureDepth receives the royalty report from
Sanyo,
PureDepth shall provide the invoice for the royalty to Sanyo and
Sanyo
will forthwith, [* * *] make the payment to
PureDepth.
|
|
Cap
for all indemnity claims made by Sanyo against PureDepth in relation
to
third party claims brought against Sanyo (clause
7.3a):
[*
* *]%
of the total Royalty received by PureDepth during the
Term.
|
16
SCHEDULE
2
NOTICES
PureDepth,
Inc.:
|
Address:
|
000
Xxxx Xxxxxxx Xxxxx
|
|
6th
Floor
|
|
|
Redwood
City
|
|
|
California,
94065
|
|
|
United
States of America
|
|
|
Telephone
no:
|
000
000 000 0000
|
|
Facsimile
no:
|
000
000 000 0000
|
|
Contact
person:
|
Xxxx
Xxxxxxxxxxxx
|
|
E-mail
address:
|
xxxx.xxxxxxxxxxxx@xxxxxxxxx.xxx
|
|
Sanyo:
|
|
|
Address:
|
0-00,
Xxxxxxx-xxx 0-xxxxx, Xxxxxxxxx-xxx,
|
|
Xxxxx
000-0000
|
|
|
Xxxxx
|
|
|
Telephone
no:
|
x00-0-0000-0000
|
|
Facsimile
no:
|
x00-0-0000-0000
|
|
Contact
person:
|
Okikuni
Aoyagi
|
|
E-mail
address:
|
xxxx000000@xxxxx.xx.xx
|
17
<MANUFACTURE
BY PD>
MLD
Module [* * *]
|
[*
* *]-[* * *]
|
[*
* *]-[* * *]
|
[*
* *]-[* * *]
|
[*
* *]-
|
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
MLD
Module [* * *]
|
[*
* *]-[* * *]
|
[*
* *]-[* * *]
|
[*
* *]-[* * *]
|
[*
* *]-
|
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
[*
* *]
|
[*
* *]-[* * *]
|
[*
* *]-[* * *]
|
[*
* *]-[* * *]
|
[*
* *]-
|
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
|
[*
* *]
inch
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
$[*
* *]
|
The
discount of the Royalty shall be accumulative for the entire amount of the
Products sold or manufactured.
18
