ࡱ> g R(bjbjVV1.r<r<g&  ggggg{{{84{Phs"&%9 IPKPKPKPKPKPKP$JTV~oP-goPggTPggIPIP2QKO(+.5M.5PP0PcM&zWrW\OzWW$gOEL6,EEEoPoP2TEEEPWEEEEEEEEE + -: TECHNOLOGY LICENSE AGREEMENT THIS TECHNOLOGY LICENSE AGREEMENT (this  Agreement ), dated as of this ___ day of ???, 200_, by and between Hiroshima University, a national university corporation duly organized under the laws of Japan, having a principal address at 1-3-2 Kagamiyama, Higashi-Hiroshima City, Hiroshima Pref., 739-8511, Japan (University), and [XYZ Corporation], a corporation duly organized under the laws of ______, having a principal place of business at ___________________, (XYZ). RECITALS University has developed proprietary technology relating to ________________ (the University Technology) and owns and has rights under certain patents, patent applications and know-how in respect of the University Technology in various countries of the world. XYZ wishes to obtain licenses under such patents, patent applications and know-how to develop, manufacture, use and sell _______ products anywhere in the world. University is willing to grant such license under the terms and conditions hereinafter contained. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITIONS; INTERPRETATION Section 1.01. As used in this Agreement, except as otherwise expressly provided herein or unless the context herein otherwise requires, the following terms shall have the respective meanings indicated below: Affiliate means any corporation, company, partnership or entity that directly or indirectly through one or more intermediaries, is controlled by or is under common control with, either Party. For purposes of this definition, control means (i) the direct or indirect, legal or beneficial ownership of greater than fifty percent (50%) of the outstanding shares of stock entitled to vote for the election of directors or persons performing similar functions, or in the case of entity not having voting stock, equivalent ownership or interest of greater than fifty percent (50%) of its outstanding shares, or of its net asset or net profit, provided that such corporation, company, partnership or entity shall be deemed to be an Affiliate for purposes of this Agreement only so long as such Party maintains such ownership or control. Agreement has the meaning set forth in the preamble hereof and includes all Schedules, which may be amended, modified, revised or supplemented from time to time upon agreement of the Parties. Arm's Length Customer means any customer, purchaser or third party having no financial interest or capital investments in XYZ or its Affiliates sublicensed hereunder in the first bona-fide arm's length sale from XYZ or such Affiliate of the Licensed Products. For the avoidance of doubt, the transfer or sales from an Affiliate to another Affiliate shall not be considered to be sales to Arms Length Customer. Change of Control means any transaction or event (or series of transactions or events), whether by an acquisition of securities, merger, consolidation, proxy contest or other transaction or event (or series of transactions or events), that results in XYZ being controlled, directly or indirectly, by a third person (whether alone or with others) that did not control XYZ before such transaction or event (or series of transactions or events), whether or not XYZ survives such transaction or event (or series of transactions or events). For purposes of this definition, control means possession of, or the power or right to acquire possession of, directly or indirectly, the power to direct or cause the direction of the management, business affairs or policies of XYZ (whether through ownership of securities, partnership or other ownership interests, by contract or otherwise). Confidential Information means any information which is supplied or disclosed by the disclosing Party to the receiving Party during or in connection with the negotiations and performance of this Agreement and the License Option Agreement prior to or after this Agreement in written form and identified by notice or legend on the face of such written form indicating that the information contained therein is confidential, or any information orally communicated by the disclosing Party or observed by the receiving Party at the disclosing Partys premises in connection with this Agreement prior to or after this Agreement, provided that within thirty (30) days of such oral disclosure or observation, the disclosing Party sends the receiving Party a written notice which identifies such information and indicates that it is confidential, and which may include all data, drawings, designs, concepts, specifications, operating experience and techniques, documents or other information of confidential nature, in any form received by the receiving Party from the disclosing Party at any time, and relating to the disclosing Partys products, inventions, technology, software, developments, know-how, improvements, marketing plans or manufacturing processes. Effective Date has the meaning set forth in Section 10.01. Field means _____________________. IFRS means International Financial Reporting Standards in effect at the time of keeping books of accounts set forth in Section 4.07. Initial License Fee has the meaning set forth in Section 3.01. Interest Rate means, with respect to any amount, the interest rate of twelve percent (12%) per annum subject to the maximum statutory rate of default interest permissible under applicable law. License Option Agreement means that certain License Option Agreement dated ___ day of _______, 20__ made and entered into by and between University and XYZ. Licensed Product means ____________________. Licensed Technology means the University Patents and the University Know-How. Net Sales means the gross invoice price actually invoiced (or if not invoiced, the gross price actually charged) for a Licensed Product sold by XYZ or any Affiliate to any Arm's Length Customer (excluding a Licensed Product transferred, sold or otherwise disposed of by XYZ to an Affiliate or an Affiliate to another Affiliate) minus any sales, consumption or excise tax where such tax is itemized in the invoice and actually included in such gross invoice price or gross charge, and an amount equal to five percent (5%) of such gross invoice price for such Licensed Product (excluding item (i) above, if any), which shall be a deemed amount for all other deductibles covering all quantity discounts, transportations, insurances, packing charges and returned goods; provided, however, that (a) when a Licensed Product is used or otherwise disposed of without payment, the Net Sale of such Licensed Product shall be the average of the Net Sales of the same Licensed Product sold by XYZ or its Affiliates to Arm's Length Customers during the same quarter, that (b) if there are no such sales of the same Licensed Products or no such sales to Arm's Length Customers with respect to a particular Licensed Product during the same quarter, the royalty base shall be the average of the Net Sales of the Licensed Products with similar Licensed Products sold to Arm's Length Customers during the same quarter, and that (c) if there are no Licensed Products with similar Licensed Products sold during the same quarter, the royalty base shall be the average of the Net Sales of the Licensed Products with the same or similar Licensed Products sold to Arm's Length Customers during the most recent quarter. Party means either University or XYZ, and Parties means collectively University and XYZ. Running Royalties has the meaning set forth in Section 3.03. Territory means anywhere in the world. University Know-How means such technical information, know-how, process, procedure, composition, device, method, formula, protocol, technique, software, design, drawing or data relating to the primer sequences, the procedures for designing primers and the assays developed by University in respect of certain targets relating to the University Technology as set forth in Schedule II and as separately agreed upon in writing, all to the extent and only to the extent that University has the right to grant the license thereunder, and shall considered to be Confidential Information of University hereunder. University Patents means the patents and patent applications set forth in Schedule I, any patents issued on such applications anywhere in the world. Section 1.02. Interpretation (a) The term including means including without limitation. (b) The words herein, hereof, hereto and hereunder refer to this Agreement as a whole, and not to any particular Article, Section or Subsection in this Agreement. (c) Headings and Recitals are inserted for convenience only and do not affect the construction hereof, words denoting the singular include the plural and vice versa, and words denoting one gender include each gender and all genders. (d) Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning. (e) Unless the context otherwise requires, references herein to: (i) a person include references to a natural person, firm, partnership, joint venture, company, corporation, association, organization, trust, enterprise, government or department or agency of any government (in each case whether or not having a separate legal personality); (ii) a month, quarter and year are references to a month, quarter and year of the Gregorian Calendar; (iii) Recitals, Articles, Sections, Subsection or Schedule refer to the appropriate recitals, articles, sections, subsections or schedules hereof; (iv) a document, instrument and agreement are references to such document, instrument and agreement (including schedules thereto and, where applicable, any of its provisions) as amended, modified, varied, supplemented, novated or replaced and in effect at the time any such reference is operative; (v) a Party include its permitted successors and assigns; (vi) a statute or law are construed as references to such statute or law as modified, amended, consolidated, extended or re-enacted and in effect at the time any such reference is operative, and include any administrative guidances, orders, regulations, instruments or other subordinate legislation made under the relevant statute or law; and (vii) an authority, association or body whether statutory or otherwise are, if and when any such authority, association or body ceases to exist or being reconstituted, renamed or replaced or the powers or functions thereof being transferred to any other authority, association or body, references respectively to the authority, association or body established or constituted in lieu thereof or as nearly as may be succeeding to the powers or functions thereof. ARTICLE II GRANT OF LICENSE Section 2.01. Upon receipt of the Initial License Fee pursuant to Section 3.01 and subject to the other terms and conditions set forth herein, during the effective term hereof, University hereby grants to XYZ, and XYZ hereby accepts, personal, non-transferable, non-exclusive licenses under the Licensed Technology to develop and manufacture the Licensed Products in the Field in the Territory, and subsequently use, sell, offer for sale or otherwise dispose of the Licensed Products so manufactured in the Field in the Territory. Section 2.02. Subject to compliance with the terms and conditions hereof, XYZ shall have the right to grant to the Affiliates sublicenses under the license and rights granted to it hereunder but without any right to sublicense further. XYZ shall give University written notice as to the names, addresses, shareholding ratio, and any other information reasonably requsted by University from time to time with respect to all the Affiliates sublicensed hereunder that manufacture the Licensed Products. Such Affiliates shall be bound by the terms and conditions hereof as if it were named herein in the place of XYZ. The sublicense granted to an Affiliate shall automatically terminate on the date the Affiliate ceases to be an Affiliate. XYZ shall not have the right to grant a license to any person other than its Affiliates. Section 2.03. The license to manufacture the Licensed Products granted in Sections 2.01 includes the right under the Licensed Technology to have a third party designated by XYZ or its Affiliates sublicensed hereunder and approved in advance by University in writing manufacture the Licensed Products either in finished or semi-finished form in accordance with the designs, drawings and specifications and manufacturing and/or assembling drawings or specifications, all originated and owned by XYZ or such Affiliates, provided that XYZ or such Affiliates shall purchase and take over from such third party all of the Licensed Products manufactured and/or all portions thereof assembled by the third party and shall not directly or indirectly re-transfer them to such third party or any related parties of such third party. Section 2.04. For the avoidance of doubt, the licenses to use, sell, offer for sale or otherwise dispose of the Licensed Products does not include the right to use, sell, offer for sale or otherwise dispose of any parts or components of such License Products except for the warranty or after services for such Licensed Products sold. Section 2.05. Except for the licenses and rights expressly granted hereunder, no right, title or interest in any discovery, invention or technology, data or information or any patent, copyright, trademark or other intellectual property right owned by University or its Affiliate shall be granted to XYZ hereunder. University shall not be under any obligation to grant to XYZ any additional licenses and rights other than those granted hereby. University shall have the absolute freedom of whether (i) to grant to XYZ additional licenses other than those granted hereby under reasonable terms and conditions or (ii) to include such additional licenses into this Agreement under the same or additional terms and conditions. ARTICLE III LICENSE FEE AND ROYALTIES Section 3.01. In consideration of the licenses and rights granted herein, XYZ shall pay to University an initial license fee of ___________ Japanese Yen (__________) (the Initial License Fee), which shall be due and payable upon exercise of the option for a license under the License Option Agreement, such payment to cause this Agreement to become effective. Section 3.02. The Initial License Fee shall be non-refundable and shall not be credited against any Running Royalties due and payable to University hereunder. Section 3.03. In consideration of the licenses and rights granted herein, XYZ shall further pay to University non-refundable running royalties (the Running Royalties) of ___ percent (__%) of the total Net Sales of all the Licensed Products used, sold or otherwise disposed of by XYZ or any of its Affiliates anywhere in the world. Section 3.04. Running Royalties shall accrue at the time when any Licensed Product is sold (as evidenced by the applicable invoice or bill), first used, sold or otherwise disposed of, whether or not payment is received by XYZ or its Affiliates sublicensed hereunder. No Running Royalties shall accrue at the time of the transfer, sale or disposal of the Licensed Products by XYZ to any of its Affiliates or any of its Affiliates to another Affiliate. In such event, Running Royalties shall accrue at the time of the use, sale or disposal of the Licensed Products by such other Affiliate. ARTICLE IV PAYMENT AND ROYALTY REPORTS Section 4.01. Running Royalties accrued during each quarter (any part in the first or last quarter) during the term of this Agreement shall be paid to University or any other person designated by University in writing from time to time within thirty (30) days after the end of such quarter. Section 4.02. Each Running Royalty payment shall be accompanied by a royalty report, substantially in the form attached hereto as Schedule III covering the immediately preceding quarter showing the computation of Running Royalties for such quarter. Each royalty report shall set out by product name, model and type of each of the Licensed Products used, sold or otherwise disposed of during the relevant quarter, the name of the manufacturer (whether XYZ or any of its Affiliates) the name of subcontractor, the unit price, the quantities, the gross amount received, the relevant currency, the deductible items set forth in the definition of the Net Sales and the total Net Sales of the Licensed Products. The royalty report shall also contain a calculation of the Running Royalties in Japanese Yen due under this Agreement and the exchange rates used therefor. The royalty report shall be certified by an authorized officer of XYZ to be correct to the best knowledge and information of XYZ. If no Running Royalties have accrued during a quarter, the royalty report shall so state. Section 4.03. The License Fee, Running Royalties and any other amount payable to University hereunder shall be payable to University in Japanese Yen without any deduction of any remitting bank commission or fee or otherwise at the following bank account of University or any other bank account University notifies XYZ in writing from time to time: Bank Name: Branch Name:__________ Branch Bank Address: Type of Bank Account: _______ account Bank Account Number: _____ Name of the Bank Account holder: _________________ For sales of Licensed Products made in currencies other than the Japanese Yen during a quarter, Running Royalties shall be computed by converting the Net Sales into Japanese Yen at the average exchange rate for such quarter as reported in the www.oanda.com reporting or any other currency exchange reporting or quoting service as mutually agreed by University and XYZ. Section 4.04. XYZ shall not be entitled to withhold or deduct from the payments due to University hereunder any present or future taxes, levies, imposts, deductions, charges, withholdings or liabilities imposed by any government or any political subdivision or taxing authority thereof in any jurisdiction. The Parties agree that the payments due to University hereunder constitute royalties as that term is defined in Article 12, paragraph 2 of the Convention between Japan and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (the Treaty) and, as such, are exempt from the US withholding tax under Article 12, paragraph 1 of the Treaty. Pursuant to such exemption, XYZ shall not withhold any tax from any payments due to University hereunder, and University shall not be liable for any withholding taxes involved in this transaction. University shall, in addition to providing a certificate of Japanese residency, complete all forms required for XYZ to obtain such exemption and provide XYZ with such forms. Section 4.05. Within thirty (30) days after expiration or termination of this Agreement, XYZ shall furnish to University a royalty report as set forth in Section 4.02 covering the Net Sales of the Licensed Products used, sold or otherwise disposed of prior to the expiration or termination date but as to which no Running Royalties were previously paid, which report also shall set forth the total quantity of XYZs or its Affiliates inventory (including work-in-process) of the Licensed Products existing as of the expiration or termination date, and XYZ shall simultaneously pay Running Royalties to University with respect to the Licensed Products manufactured, had manufactured, used or sold in the Territory and inventory thereof. The Running Royalties with respect to XYZs or its Affiliates inventory existing as of the expiration or termination date shall be determined as if such inventory were sold in the Territory immediately prior to the expiration or termination date. For the purpose of this Section 4.05, the royalty base of such inventory shall be the average of the Net Sales of the Licensed Products with the same or similar Licensed Products sold to Arms Length Customers during the royalty payment period immediately prior to the expiration or termination date, or if there are no Licensed Products with the same or similar Licensed Products during such period, the average of the Net Sales of the Licensed Products with the same or similar Licensed Products sold to Arms Length Customers during the most recent quarter. Section 4.06. In the event that any amount due University by XYZ hereunder is not paid when due, XYZ shall pay on demand to University interest on the overdue amount at the Interest Rate from the due date of such amount until the date such overdue amount is paid in full. Section 4.07. XYZ shall keep, and XYZ shall cause its Affiliates to keep, accurate and complete records and books of account containing regular entries in accordance with the IFRS consistently applied for the purpose of calculating Running Royalties and making royalty reports pursuant to Section 4.02. All the records and books of account relating to a particular fiscal year of XYZ and such Affiliates shall be retained for a period of five (5) years following the close of such fiscal year. All records and books of account shall contain all information necessary to calculate Running Royalties hereunder and to determine the accuracy of the royalty reports. University shall have the right (which it may not exercise more than once for each year) to cause such records and books of account to be audited by an independent public accounting firm selected by University at Universitys cost for the sole purpose of determining the accuracy of reports and calculations of Running Royalties. Such audits shall be made during normal business hours of XYZ or such Affiliates and with at least fifteen (15) day prior notice. All information disclosed to or obtained by the independent public accounting firm during such audit shall not be disclosed to anyone including University (except as required by law or by any governmental agency or tribunal, and except as may be necessary or proper in connection with any dispute or proceeding relating to this Agreement) and shall be held in strictest confidence, except that the independent public accounting firm may disclose to University whether a discrepancy in Running Royalty payments has been found, the amount of the discrepancy involved, and the circumstance of the discrepancy, including the basis upon which the discrepancy is determined. In the event that such audit reveals that XYZ underpaid or under-reported Running Royalties due University, XYZ shall promptly upon demand pay to University the deficiency and interest thereon under Section 4.06, and if such deficiency is in excess of three percent (3%) of the amount actually due, XYZ shall also upon demand from University reimburse University for the costs and expenses incurred in conducting such audit. Section 4.08. XYZ shall faithfully respond with reasonable additional information to what University may reasonably request from time to time to enable University to ascertain a specific model or type of Licensed Products used, sold or otherwise disposed of by XYZ or the Affiliates is subject to the payment of Running Royalties, and the amount of such Running Royalties due. ARTICLE V TECHNICAL SUPPORT AND ASSISTANCE. Section 5.01. University shall start to provide XYZ with the documents listed in the University Know-How in Schedule II within thirty (30) days after the Effective Date and complete such provision within thirty (30) days after the receipt of the Initial License Fee. University shall have no obligation to update the University Know-How listed in Schedule II or any know-how provided, disclosed or otherwise made available to or access by XYZ in connection with the technical support and assistance pursuant to Section 5.02. The University Know-How shall be provided to XYZ in hard copy or electronic format at Universitys sole option. Section 5.02. For the period not to exceed thirty (30) days after delivery of the last University Know-How documents, University shall use commercially reasonable effort to provide XYZ with technical support and assistance specified in Schedule IV on the terms and subject to the conditions mutually agreed upon including those set forth in Schedule IV. XYZ acknowledges and agrees that after the expiration of such period University shall have no obligation to provide any further technical support and assistance to XYZ hereunder. ARTICLE VI CONFIDENTIALITY Section 6.01. The receiving Party shall maintain the confidentiality of any Confidential Information learned from, or supplied or disclosed by, the disclosing Party, and shall not disclose, publish or release any Confidential Information to any person other than to those officers or employees of the receiving Party who have a need to know such Confidential Information, and shall not use any Confidential Information for itself or others for any purpose other than the purpose contemplated herein, unless the disclosing Party agrees otherwise in writing or unless the receiving Party can demonstrate by competent documentary evidence that the Confidential Information: was already of written record in its files prior to receipt thereof; was already in the public domain prior to receipt thereof or comes into the public domain through no fault or omission attributable to the receiving Party; is lawfully obtained by the receiving Party without restrictions to use from a third party who is legally free to disclose the same; or is independently developed by the receiving Party without the aid, application or use of any Confidential Information, as established by a preponderance of documentary evidence. Section 6.02. In protecting the Confidential Information, the receiving Party shall take all necessary precautions and, without limiting the foregoing, the Confidential Information shall be treated in at least the same manner and with the same degree of care as the receiving Party applies with respect to its own confidential information of like importance, but in no event, shall the receiving Party take anything less than reasonable care to prevent the disclosure of the Confidential Information. The receiving Party shall disclose the Confidential Information only to those permitted subcontractors who have a need to know of it, but only if they are subject to a confidentiality agreement with receiving Party that covers the Confidential Information and is substantially similar to the terms and conditions of this Agreement. Section 6.03. The receiving Party shall not disclose the Confidential Information to any third party except: (i) as required by any competent court, regulatory authority or governmental agency, in which case the receiving Party shall notify the disclosing Party prior to disclosing the Confidential Information, and identify (a) the Confidential Information to be disclosed, (b) the third party or parties to whom such Confidential Information is to be disclosed, (c) the circumstances that necessitate disclosing such Confidential Information; moreover, in any such case the receiving Party shall use its best efforts to preserve the confidentiality thereof to the extent possible in compliance with such order including obtaining a protective order; or (ii) with the prior written approval of the disclosing Party, in which case such written approval shall identify (a) the Confidential Information that may be disclosed, (b) the third party or parties to whom such Confidential Information may be disclosed, and (c) the circumstances under which such Confidential Information may be disclosed; if the disclosing Party so approves any such disclosure, such approval shall be strictly construed. Section 6.04. This Section shall survive ten (10) years after the expiration or termination of this Agreement. ARTICLE VII PATENT MARKING Section 7.01. XYZ shall mark, and shall cause its Affiliates sublicensed hereunder to mark, each of the Licensed Products manufactured, used, offered for sale or sold or its containers, and the product brochures and promotional and sales materials for the Licensed Products, with the patent numbers of the University Patents utilized therefor, and shall furnish to University samples of each of the Licensed Products or their containers and each copy of those product brochures and materials. ARTICLE VIII GRANT BACK Section 8.01. XYZ hereby grants and causes its Affiliates to grant to University and its Affiliates, at no charge, non-exclusive, world-wide perpetual right and license (with the right to sublicense to any third party) to manufacture, have manufactured, use, sell, offer for sale or otherwise dispose of any product (including any components thereof) utilizing the University Technology under any discoveries, inventions or improvements, whether patentable or not, on the University Technology which XYZ and/or its Affiliates may develop, own, acquire, possess or control relating to the Licensed Products. Promptly after XYZ becomes aware of any such discovery, invention or improvements, XYZ shall inform University of such discovery, invention or improvements in writing in such reasonable manner and details as University will be able to review, make further inquiries and utilize the same. ARTICLE IX NO WARRANTIES Section 9.01. Nothing in this Agreement shall be construed as: a warranty, representation or promise by University relating to any of the Licensed Technology or the Licensed Products, including the validity, scope or suitability for any purpose of the Licensed Technology; or an obligation on the part of University to furnish any manufacturing or technical information to XYZ or its Affiliates except to the extent provided in Article V; or an obligation to bring or prosecute actions or suits against third parties, defend actions or suits brought against XYZ, its Affiliates, their customers or third parties, or indemnify XYZ, its Affiliates, their customers or third parties for any reason; or imposing any liability on University with respect to the manufacture, use, sale or disposal of the Licensed Products by XYZ, its Affiliates, their customers or third parties; or imposing an obligation on University to maintain the continued existence of any of the University Patents or to file applications for any patent or other industrial or intellectual property right or to take any action with respect to filed applications for any patent or other industrial or intellectual property rights; or conferring upon XYZ or its Affiliates the right to use in advertising, publicity or otherwise, any trademark, service mark or trade name of University; or conferring upon XYZ or its Affiliates, by implication or otherwise, any rights or license under any patent or other industrial or intellectual property rights (including trademarks, service marks, tradenames and copyrights) or other rights except for the licenses and rights expressly granted hereunder; or an obligation upon University to make any determination as to the applicability of any of the Licensed Technology to any products of XYZ or its Affiliates. Section 9.02. UNIVERSITY MAKES NO WARRANTIES, REPRESENTATIONS OR PROMISES THAT THE USE OR PRACTICE OF THE UNIVERSITY TECHNOLOGY OR THE DEVELOPMENT, MANUFACTURE, USE, OFFER FOR SALE OR SALE OF THE LICENSED PRODUCTS DOES NOT AND WILL NOT INFRINGE ANY PATENT OR OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHT OR OTHER RIGHT OWNED BY THIRD PARTIES. THE LICENSES AND RIGHTS PROVIDED FOR HEREIN ARE GRANTED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ARTICLE X TERM AND TERMINATION Section 10.01. This Agreement shall become effective on the date that the payment of the Initial License Fee has been made in full upon exercise of the option granted by University under the License Option Agreement (such date, the Effective Date). Section 10.02. Except as otherwise provided for in this Article X, this Agreement, the licenses and rights granted pursuant hereto shall remain in effect until the last to expire of the University Patents. Section 10.03. University shall have the right forthwith to terminate this Agreement upon written notice to XYZ in any of the following events: if University has not received any Running Royalties on the Licensed Products for one (1) year after XYZ commences the sales of the Licensed Products; if XYZ or any of its Affiliates sublicensed hereunder has defaulted in the performance or observance of any provision, covenant, condition or agreement contained in this Agreement and has failed to cure such default within sixty (60) days of written notice complaining thereof to XYZ; if XYZ becomes insolvent or admits in writing its inability to pay its debts as the same nature or make an assignment for the benefit of creditors; if any proceeding is instituted by or against XYZ seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of XYZ or its debts or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for XYZ or for any substantial part of its property and assets; or if XYZ assigns or attempts to assign this Agreement or any part thereof in violation of Section 11.01. Section 10.04. In the event that XYZ or any of its Affiliates for itself or through any third party contests the validity or unenforceability of any of the University Patents or assists any third party in contesting the validity or unenforceability of any of the University Patents, or XYZ or any of its Affiliates files any declaratory judgment or similar action to obtain the non-infringement of any Licensed Product on any of the University Patents to the extent permissible by applicable law, University shall have the right forthwith to terminate this Agreement or the specific licenses and rights granted hereunder upon written notice to XYZ, and the corresponding sublicenses shall likewise terminate without any notice to its Affiliates. Section 10.05. At any time after payment of the Initial License Fee, XYZ shall have the right to terminate this Agreement in its entirety for its convenience upon sixty (60) day prior written notice to University without any penalty, liability or further obligation. Section 10.06. In the event that XYZ becomes subject to a Change of Control, and unless XYZ delivers to University, in writing within sixty (60) days of the Change of Control, a legally binding undertaking from the third person thereafter in Control of XYZ (including the entity, if any, that ultimately Controls such third person) (on behalf of itself and entities that would constitute Affiliates) to be bound by the terms and conditions of this Agreement to the same extent as if such third person (or such Controlling entity) were the party to this Agreement subject to the consent of University, then University shall have the right to terminate this Agreement upon written notice to XYZ, and the corresponding sublicenses shall likewise terminate without any notice to its Affiliates. Section 10.07. All licenses and rights granted to XYZ hereunder in respect of the Licensed Technology shall cease forthwith as of the date of expiration or termination of this Agreement. In the event that this Agreement is terminated for whatever reason or expired, all the corresponding sublicenses granted to the Affiliates of XYZ shall likewise terminate without any notice to such Affiliates. Section 10.08. Any expiration or termination of this Agreement pursuant to this Article X shall not relieve XYZ of any of its obligations or liabilities accrued hereunder prior to the date of expiration or termination of this Agreement, and the expiration or termination shall not affect in any manner any rights of University arising under this Agreement prior thereto. Section 10.09. The rights and remedies set forth in this Article X are not exclusive and are in addition to any other rights and remedies available to University under this Agreement or at law or in equity. Section 10.10. For the convenience of the Parties, this Agreement is made for licenses under a certain group of patents owned by University. Any judgment, adjudication, determination or order by a competent court or a regulatory authority or governmental agency which finds one or more of the University Patents invalid or unenforceable shall not give rise to a right of termination hereof or reduction of the Initial License Fee or Running Royalties by XYZ, as long as one or more of the University Patents remain valid. Section 10.11. The provisions of Sections 4.02 through 4.08, 9.01, 9.03, 10.08, 10.09, 11.03, 11.08, 11.10 and 11.12, 11.13 and Article VI and VIII and this Section 10.11 shall survive the expiration or termination of this Agreement. ARTICLE XI MISCELLANEOUS Section 11.01. This Agreement and the licenses and rights granted herein shall be binding upon and inure to the benefit of University, XYZ and their respective permitted successors and assigns. XYZ shall not assign or transfer any of its rights, privileges or obligations hereunder without prior written consent of University. Any assignment or transfer in violation of this Section 11.01 shall be null and void ab initio. Section 11.02. This Agreement does not in any way create a relationship of principal and agent, partnership or joint venture between the Parties. Neither Party shall under any circumstances act as, or represent itself to be, the other Party. Section 11.03. Any notice, report or other document required or permitted hereunder shall be written in English, and shall be sufficiently given when personally delivered, telecommunicated, electronically mailed, delivered by overnight courier or mailed prepaid first class registered or certified mail and addressed to the Party for whom it is intended at its record address, and such notice shall be effective upon receipt, if delivered personally, telecommunicated, electronically mailed or delivered by overnight courier, or shall be effective five (5) days after it is deposited in the mail, if mailed. The record addresses, facsimile numbers and E-mail addresses of the Parties are set forth below: University: 鶹AV 1-3-2 Kagamiyama Higashi-Hiroshima City Hiroshima Pref., 739-8511 Japan Attention: Fax No.: E-Mail: XYZ: Attention: Fax No.: E-Mail: Either Party, at any time, may change its previous record address, facsimile number or E-mail address by giving written notice of the substitution in accordance with the provision of this Section 11.03. Section 11.04. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement or portion thereof, or the application thereof to any person or circumstance or in any country contravenes a law of any country (or political subdivision thereof) in which this Agreement is effective or is held to any extent invalid or unenforceable, the remaining provisions of this Agreement (or of such provision) and the application thereof to other persons or circumstances or in other countries shall not be affected thereby, and this Agreement shall be modified with respect to its application in such jurisdiction, but not in jurisdictions where such provision is valid, to conform with such law. Section 11.05. No modification or amendment hereof shall be valid or binding upon the Parties, unless made in writing and duly executed on behalf of the Parties by their respective duly authorized officers. Section 11.06. Any failure of either Party to insist upon the strict performance of any provision hereof or to exercise any right or remedy shall not be deemed a waiver of any right or remedy with respect to any existing or subsequent breach or default. Section 11.07. This Agreement constitutes the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements, express or implied, and oral or written. Section 11.08. This Agreement is to be interpreted and construed in accordance with the laws of Japan without regard to the principles of conflicts of laws. Section 11.09. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute a single instrument. Section 11.10. Except for the right of University to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or to prevent irreparable harm, or as necessary to prosecute, maintain or defend the Licensed Technology, any and all claims, disputes or controversies between the Parties arising under, out of, in relation to or in connection with, this Agreement or a Partys alleged breach of this Agreement, shall be resolved by final and binding arbitration upon the written notice of either Party to the other requesting such arbitration. Such arbitration shall be conducted in Tokyo, Japan. Such arbitration shall be before three (3) arbitrators and conducted under the Rules of Arbitration of the International Chamber of Commerce, unless the Parties mutually agree to use a lesser number of arbitrators. During the pendency of such arbitration, each Party shall pay its own costs and expenses and shall split equally the costs and expenses of the arbitrators and arbitration; provided that the prevailing Party in any such arbitration shall be entitled to recover from the other Party its share of the costs and expenses of the arbitrators. The arbitration shall be conducted in the English language. Any award rendered in such arbitration may be entered and enforced by either Party in any court having jurisdiction. This section shall survive the expiration or termination of this Agreement. Section 11.11. Neither Party shall issue any press release or other public announcement relating to this Agreement without obtaining the other Party's written approval. Section 11.12. The Parties hereby acknowledge that there are circumstances in which it would be impossible to measure in money the injury that would be suffered by University or XYZ, as relevant, by reason of the other Party's breach of its obligations hereunder, and the breaching Party consents to the granting by any court in any applicable jurisdiction of an injunction or other equitable relief. The foregoing shall be in addition to all other rights and remedies available to the non-breaching Party under this Agreement or at law or in equity. Section 11.13. XYZ hereby agrees to defend, indemnify and hold harmless University, its Affiliates, and their respective trustees, directors, officers, professors, researchers, employees and agents from and against any and all claims, actions, suits, liabilities, damages or judgments resulting from or relating to the activities of XYZ and its Affiliates sublicensed hereunder or the manufacture, use, sale or other disposal of the Licensed Products by XYZ, its Affiliates or any other person (including claims, actions, suits, liabilities, damages or judgments related to product liability). XYZ shall assume responsibility for all costs and expenses related to any such claims, actions, suits, liabilities, damages or judgments including reasonable attorneys' fees and other litigation costs and expenses. IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized officer as of the date and year first above written. 鶹AV XYZ Corporation By: By: Title: Title: Date: Date: Schedule I University Patents Patent Application ___________ Patent any divisionals, amendments, continuations, continuations-in-part, substitutions, additions, re-issues, reexaminations, renewals and extensions of any of the foregoing Schedule II University Know-How Schedule III Form of Royalty Report Royalty Report (from to )  EMBED Excel.Sheet.8  Schedule IV Technical Support and Assistance Evaluation and review of XYZ's data and advice for improving performance Upon Universitys receipt of XYZs reasonable requests or questions with respect to any of the above items, University will provide XYZ with technical information or documents responsive to such requests or questions on an availability and as is basis in hard copies and electronic format at its option in the Japanese or English language. University will, upon reasonable request by XYZ and to the extent acceptable to University, provide XYZ with technical support and assistance by a maximum of ____________ of University on an availability basis for _________ of XYZ at University facilities in Hiroshima, Japan for a maximum period of _____ (__) working days with respect to any of the above items. XYZ shall cause the _______ who have received technical sessions in Japan to attend such technical support and assistance. 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