ࡱ>  @ Robjbj{{1A&&&8&'t9W((*(*(*(~)~)~)LLLLCLQV$YR\hVE/~)~)//V*(*(TV555/*(*(L4/L55I)L*(( `E&0JqL, W09WJ:y\'3fy\4)Ly\)LH~) +4(, -~)~)~)VV#&4X&2009/10/24 HU 1st Draft PATENT LICENSE AGREEMENT PATENT LICENSE AGREEMENT (this  Agreement ), dated as of this ___ day of ?????, 2009 (the  Effective Date ), 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 _________ technology and owns and has rights under certain patents and patent applications in respect of ________ technology in various countries of the world. XYZ wishes to obtain licenses under such patents and patent applications to develop, manufacture, use and sell products worldwide. University is willing to grant such license under such patents and patent applications 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. When 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, controls, is controlled by or is under common control with, either Party. For purposes of this definition, control means 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. this 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). Effective Date has the meaning set forth in the preamble hereof. Field means the field of __________. IFRS means International Financial Reporting Standards in effect at the time of keeping books of accounts set forth in Section 4.08. Initial License Fee has the meaning set forth in Section 3.01. Interest Rate means, with respect to any amount, the interest rate of twenty percent (20%) per annum subject to the maximum statutory rate of default interest permissible under applicable law. Licensed Patents means the patents and patent applications set forth in Schedule I, any patent issued on any such application anywhere in the world, and any division, amendment, continuation, continuation-in-part, renewal, re-issue and extension of any of the foregoing. Licensed Product means any product[, kit, device, equipment, instrument and/or system for ___________], the developing, manufacturing, selling, offering for sale, or otherwise disposing of which would constitute, but for the license herein, an infringement of any of the Licensed Patents. 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 3.02. Territory means worldwide except for those countries in which the licenses and rights granted hereby are terminated pursuant to Section 7.03(a), 7.04 or 7.07. Treaty has the meaning set forth in Section 4.05. Section 1.02. Interpretation (a) The phrase to use the Licensed Products means to incorporate the Licensed Products into any other products. (b) The term including means including without limitation. (c) 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. (d) 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. (e) Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning. (f) 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 is reconstituted, renamed or replaced or the powers or functions thereof are 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 payment in full of the Initial License Fee pursuant to Section 3.01, and subject to the 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 Patents to develop, and make the Licensed Products in the Field in the Territory, and use, sell, offer for sale or otherwise dispose of the Licensed Products so made 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 its 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 make the Licensed Products granted in Section 2.01 includes the right under the Licensed Patents to have a third party designated by XYZ or its Affiliates sublicensed hereunder and approved in advance by University in writing, such approval not to be unreasonably withheld, make 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 made 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, by implication or otherwise. University shall not be under any obligation to grant to XYZ any additional licenses and rights other than those granted hereby. ARTICLE III LICENSE FEES AND ROYALTIES Section 3.01. In consideration of the licenses and rights granted herein, XYZ shall pay to University a non-refundable initial license fee of __________ Japanese Yen (________) (the Initial License Fee) in the following three installments: __________ Japanese Yen (_______) to be due and payable on the Effective Date; __________ Japanese Yen (_______) to be due and payable within one (1) year after the Effective date; and __________ Japanese Yen (________) to be due and payable within two (2) years after the Effective Date. Section 3.02. 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 in any country of the world. Section 3.03. Running Royalties shall accrue at the time when any Licensed Product is first sold (as evidenced by the applicable invoice or bill), used, 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. Section 3.04. For the avoidance of doubt, any portion of the Initial License Fee paid to University shall not be credited against any Running Royalties due and payable to University hereunder. 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 II 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 Initial 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: Bank Address: Type of Bank Account: Bank Account Number: Name of the Bank Account holder: Section 4.04. 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 wire transfer selling rate of exchange in effect on the closing of the last banking day during such quarter as quoted by The Bank of Tokyo-Mitsubishi UFJ, Ltd. in Tokyo, Japan. Section 4.05. 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. [S0n0nlzn0ago0vKbeL0s|Vn0O>y(u0] Section 4.06. 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 made, had made, 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. Section 4.07. 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 4.08. 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 and a law firm selected by University 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 and the law 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 and the law 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 4.07, and if such deficiency is in excess of five percent (5%) 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 4.09. 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 PATENT MARKING Section 5.01. XYZ shall mark, and shall cause its Affiliates sublicensed hereunder to mark, each of the Licensed Products made, 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 Licensed 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 VI NO WARRANTIES Section 6.01. Nothing in this Agreement shall be construed as: a warranty, representation or promise by University relating to any of the Licensed Patents or the Licensed Products, including the validity, scope or suitability for any purpose of the Licensed Patents; or an obligation on the part of University to furnish any manufacturing or technical information to XYZ or its Affiliates; 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 Licensed 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 an obligation upon University to make any determination as to the applicability of any of the Licensed Patents to any products of XYZ or its Affiliates. Section 6.02. UNIVERSITY MAKES NO WARRANTIES, REPRESENTATIONS OR PROMISES THAT THE USE OR PRACTICE OF THE LICENSED PATENTS 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 VII TERM AND TERMINATION Section 7.01. This Agreement shall become effective on the Effective Date. Section 7.02. Except as otherwise provided for in this Article VII, this Agreement, the licenses and rights granted pursuant hereto shall remain in effect until the last to expire of the Licensed Patents. Section 7.03. University shall have the right forthwith to terminate this Agreement upon written notice to XYZ in any of the following events: if XYZ has not [obtained any government approval for sales of a Licensed Product in a country in the Territory and] commenced the actual sales of such Licensed Product within three (3) years after the Effective Date; provided, however, that University may only terminate this Agreement in relation to the country or countries for which XYZ has failed to receive government approval; 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 thirty (30) 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 makes an assignment for the benefit of creditors; if any proceeding is instituted by or against XYZ seeking to adjudicate it 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; if XYZ assigns or attempts to assign this Agreement or any part thereof in violation of Section 8.01; and if XYZ or any of its Affiliates files any declaratory judgment or similar action to obtain the invalidity of any of the Licensed Patents or the non-infringement of any Licensed Product upon any of the Licensed Patents. Section 7.04. In the event that XYZ or any of its Affiliates for itself or through any third party contests the validity of any of the Licensed Patents or assists any third party in contesting the validity of any of the Licensed 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 in respect of such Licensed Patents upon written notice to XYZ, and the corresponding sublicenses shall likewise terminate without any notice to its Affiliates. Section 7.05. 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 7.06. All licenses and rights granted to XYZ hereunder in respect of the Licensed Patents 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 7.07. In the event that XYZ or any of its Affiliates sublicensed hereunder fails to commence sales of any Licensed Product in a country within three (3) years after the Effective Date or has ceased sales of all the Licensed Products for three (3) years after commencement of such sales in a country, University shall have the right forthwith to terminate this Agreement in relation to such country upon written notice to XYZ, and the corresponding sublicenses shall likewise terminate without any notice to its Affiliates. Section 7.08. Any expiration or termination of this Agreement pursuant to this Article VII 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 7.09. The rights and remedies set forth in this Article VII 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 7.10. For the convenience of the Parties, this Agreement is made for patent 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 Licensed 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 Licensed Patents remain valid. Section 7.11. The provisions of Sections 3.01, 4.02 through 4.09, 6.01, 6.02, 7.08, 7.09, 8.03, 8.08, 8.10, 8.11, 8.13 and 8.15 and this Section 7.11 shall survive the expiration or termination of this Agreement. ARTICLE VIII MISCELLANEOUS Section 8.01. 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 8.01 shall be null and void ab initio. Section 8.02. 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 8.03. 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 communicated or 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 communicated 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 8.03. Section 8.04. 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 8.05. 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 8.06. 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 8.07. 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 8.08. This Agreement shall be construed, and the legal relations between the Parties shall be determined, in accordance with the laws of Japan without regard to what laws might otherwise govern under applicable principles of conflict or choice of laws. Section 8.09. 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 8.10. Any dispute, controversy or difference arising out of, in relation to or in connection with, this Agreement shall be settled in good faith between the Parties. If the Parties fail to resolve such dispute, controversy or difference through the good faith negotiations, it shall be finally settled by arbitration in Tokyo, Japan in accordance with the Rules of Arbitration of the International Chamber of Commerce for the time being in force by a panel of three (3) arbitrators. The prevailing Party shall be entitled to receive from the losing Party reimbursement for all costs incurred in such litigation, including reasonable attorneys' fees. The decision and award of the arbitration shall be final and binding, and shall be enforceable in any court of competent jurisdiction. Section 8.11. The Parties shall maintain the confidentiality of the terms of this Agreement, and shall not disclose or transfer, without the prior written consent of the other Party, such terms or any part thereof to any third party, except (a) as otherwise may be required by law, order or regulation; or (b) to any competent court, regulatory authority or governmental agency which has ordered the same to be produced; provided, however, that the Party who has been so ordered shall promptly notify the other Party of such order and use its best efforts to preserve the confidentiality thereof to the extent possible in compliance with such order including obtaining a protective order. Section 8.12. Neither Party shall issue any press release or other public announcement relating to this Agreement without obtaining the other Party's written approval. Section 8.13. 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 8.14. XYZ shall fully comply with all laws, ordinances and regulations applicable to it with respect to the development, manufacture, use or sale of the Licensed Products hereunder or any other performance to be made by XYZ hereunder. Section 8.15. 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. "02@dfhv    : < > ` r   + H Q X a     ( 4 5 Ϳh9I6CJOJQJ]o(h9I>*CJOJQJh9ICJOJQJh9ICJOJQJo(h9I56CJOJQJh9I56CJOJQJo(h9I5CJOJQJ]o(h9ICJH*OJQJ]aJo(h9ICJOJQJ]aJo( h9Io(402dfh   ( ) *      /0  8!dG$$d$da$ $d4$a$$a$Vn5    # $ * 0 7   *   ./0=>QZMOKLMNµ#h9ICJOJQJ\]mHnHuh9I6CJOJQJo(h9I56CJOJQJo(h9I56CJOJQJh9ICJOJQJ\]h9ICJOJQJh9ICJOJQJo(90LM)*qr()jk d9DOd`O /@p@ P !d Sd9D`S  8!dG$Sd`SdN\]nw,-.=̻̻̻o_QQh9ICJOJQJ\]o(h9I56CJOJQJ\]h9I56@CJOJQJo(h9I6CJOJQJ\h9I56CJOJQJh9ICJOJQJ\]h9ICJOJQJo(h9ICJOJQJ h9ICJOJQJmHnHo(uh9ICJOJQJmHnHu#h9ICJOJQJ\]mHnHu#h9I56CJOJQJmHnHu&)')*-.<=pqrsxyʢwlwhCJOJQJo(h9Ih9ICJOJQJo(h9Ih9ICJOJQJh9Ih9I56CJOJQJh9Ih9ICJOJQJ\]h9I56CJOJQJo(h9ICJOJQJh9ICJOJQJo(h9I56@CJOJQJo(h9ICJOJQJ\]o(h9ICJOJQJ\]%!"$%')*3=OXdejlmz{01ABDEUVfgijstu`jL)78Cͽޡޔ~h9I6CJOJQJh9ICJOJQJ\h9I6CJOJQJ\h9I6CJOJQJ]o(h9I56CJOJQJo(h9I56CJOJQJ\]!h9I56CJOJQJ\]o(h9ICJOJQJo(h9ICJOJQJh9I56CJOJQJ1k/0ABhiPk # #j#k### $ dda$ d9Dd & F d^` /@p@ P !dSd`S 8!SdG$`S SddCEUYjk}$ : 1!=!}!!!!!!!!""""3"I"P"""""# # # ####,#3#9#:#A#B#C#H#I#U#V#d#h#l#m#n#############Ÿŭh9ICJOJQJ]h9ICJOJQJ]o(h9ICJOJQJ\]h9I56CJOJQJh9I6CJOJQJh9ICJOJQJh9ICJOJQJo(C###:$;$C$D$K$L$R$S$Y$k$t$$$$$$$$$$$$$$$$% %%(%)%2%3%:%;%W%X%[%\%]%_%i%j%p%q%s%t%z%{%}%~%%%%%%%&& & & &ٲh9I56CJOJPJQJo(h9I56CJOJPJQJh9I56CJOJQJhCJOJQJo(h9ICJOJQJo(h9ICJOJQJ!h9I56CJOJQJ\]o(@#Q$R$$$$%%Z%[%&&&&p'q''( Jd^J` $d`a$d`d 8!SdG$`S  8!dG$ /@p@ P !dgd &&&p'u'''''''((o(p(((((((((/)2)P)Q)])n)r))))))))))*****+,+.+@+_+r+++++t,{,,,,,--^-a-J.L.M.S.T.U.W.h.i.q.r.v.x...h9I6CJOJQJo(h9I56CJOJQJo(h9I56CJOJQJh9ICJOJQJo(h9ICJOJQJM(-))*(+,J.K.L.W.h.i.f0g03366D8E8 :!:":.:J:  8!dG$$da$d Jd^J`./W/`/q/s////////////)0;0F0I0g0o0p0r0s0t00000111!1U1333333333<4F44444455@6D6}666666h9I6CJOJQJo(hCJOJQJhCJOJQJo( h9ICJOJQJmHnHo(uh9I56CJOJQJo(h9I56CJOJQJh9ICJOJQJh9ICJOJQJo(=66777 77e7w7E8M8N8O8P8Q8R8p9s9}999999: :!:":xfxfxfxfxR&h9IB*CJOJPJQJaJo(ph"h9IB*CJOJQJaJo(phh9IB*CJOJQJaJph.h#56B*CJOJQJ\]aJo(ph.h9I56B*CJOJQJ\]aJo(ph+h9I56B*CJOJQJ\]aJphh9ICJOJQJh#56CJOJQJo(h9I56CJOJQJo(h9ICJOJQJo(":#:-:H:I:J:K:S:T:Y:Z::::::::;;;;>;?;;;;;;;;;;<<h<p<q<s<t<u<<<==#=%=[=\=`=b=f=============>>>>>øøøøøøø͸øøøøøøøøøøøøøîø#䴳ϴ9䴳ϴ(9䴳ϴ95Cϴ96Cϴ956Cϴ(956Cϴٴ::;;;;<h<== @ @@@@@@@BB^F_FGGGGd9D$da$d^ & FddZ>p>>>>> ??9?C?M?N?T?\?f?g??? @ @@@@@@@"@+@9@H@Z@\@p@@@@@@@@@@@@@AAAAABBB'B(B*B+B¶ϩݜh9ICJOJQJaJo(h9ICJOJQJ]o(h9I6CJOJQJo(h9ICJOJQJaJ h9ICJOJQJaJ o(h9I56CJOJQJo(h9I56CJOJQJh9ICJOJQJh9ICJOJQJo(8+B,B.BsBBBBCCC=CZC[C|CCCCCC-D;D*䴳ϴ(95Cϴo(956Cϴ956Cϴ(9䴳ϴ9䴳ϴ(фĈňLjȈɈbdlmnpqikٵh9ICJOJQJ]o(h9ICJOJQJmHnHu h9I>*䴳ϴԱ9Ա9䴳ϴ9䴳ϴ(956Cϴ956Cϴ(BώABCKLNOP^!6789wxyzh9I6CJOJQJo(h9ICJOJQJh9ICJOJQJo(h9I56CJOJQJo(h9I56CJOJQJMɕѕҕӕՕ֕ە:>IcgƖǖȖʖ˖͖7AVo`afgh͙Ιµµ©ϧϞχh9I>*CJOJQJh9ICJOJPJQJh9I h9Io(Uh9ICJOJQJaJh5CJOJQJaJo(h9ICJOJQJaJo(h9ICJOJQJh9I56CJOJQJo(h9I56CJOJQJh9ICJOJQJo(4IN 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 Licensed Patents Schedule II Form of Royalty Report     PAGE  +,-./=TUVXY[\^$ $ & F da$$da$dd +,-./9=VWYZ\]_`bcijkmnoxtxtxtxtjdjd`th# h#0Jjh#0JUh.gjh.gU h9Io(h9I56CJOJQJ\]h9ICJOJQJaJo(h9ICJOJQJaJ"h9I56CJOJQJ\]aJ!h9I56CJOJQJ\]o(h9ICJOJQJo(h9ICJOJPJQJh9ICJOJQJh9ICJOJPJQJo( ^_abklmnod&`#$/ 0&P . 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