Agreement.
Appro 2A License Agreement on DM8127
This Appro 2A License Agreement (the “Agreement”) is made and entered into as of this
____________day of _____________, 2011 （the “Effective Date”）by and between
____________________________________(“Licensee”), a company incorporated under
the laws of __________________________________ having its principal office
_________________________________________________________________________
and APPRO PHOTOELECTRON INC. (“APPRO”), a company incorporated under the
laws of the Republic of China (R.O.C.) having its principal office at 6F, No.23, Syuan
Road, Shinjuang City, Taipei, Taiwan 242, R.O.C.;
WHEREAS, APPRO desires, upon the terms and conditions set forth in this Agreement, to
supply certain technical information, software and hardware to Licensee; and
WHEREAS, Licensee desires to procure certain software and hardware from APPRO for
use in its production;
NOW, THEREFORE, in consideration of the mutual promises and undertakings set forth
herein, Licensee and APPRO agree as follows:
1. Product
As used in this Agreement, the term “Product” shall mean the Appro’s 2A and image
pipeline algorithm on TI DM8127 platform and Aptina CMOS MT9P031 sensor.
2. Royalty Payment
(a) Licensee shall pay the royalty US$0.75 per set during the term of this Agreement.
Within thirty (30) days after March 31st, June 30th, September 30th, and December 31st
of each calendar year, Licensee agrees to provide APPRO with a written statement on
the Product that identifies the number of Products sold or otherwise distributed by
Licensee during that calendar quarter. All statements shall be delivered to APPRO at
the address provided in Appendix 1. APPRO shall issue the invoice corresponding to
the written statement as set forth above provided by Licensee. Licensee shall pay the
royalty within thirty (30) days after receipt of the invoice from APPRO.
3. APPRO Support
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Agreement.
Following Licensee’s acceptance of the Product, APPRO acknowledges and agrees to
provide modification assistance and support services on the Product (“Services”) at written
request by Licensee.
4. Intellectual Property Rights Agreement
(a) APPRO hereby represents and warrants that (1) it owns and possesses legal rights to all
intellectual property contained in the Product; (2) the Product does not infringe upon
any third parties’ intellectual property right.
(b) All rights, title, and interest in APPRO’s underlying intellectual property in the Product
are retained by APPRO, no ownership rights are transferred to Licensee by this
Agreement.
5. Confidentiality
Except as otherwise provided in the Agreement, each party hereto agrees to keep in strict
confidence all information relating to or acquired from the other party in connection with
the performance of this Agreement or any agreement provided for herein. No such
information shall be used for the benefit of anyone not a party or for the purposes of any
party, except for the purpose of furthering the interests and objectives of this Agreement.
The foregoing obligations shall not apply where:
(a) The information was known to the person receiving it prior to the date thereof, and was
not obtained or derived under this Agreement or any other agreement contemplated
herein.
(b) The information, which at the time of disclosure was in the public domain or which
after disclosure hereunder, becomes part of the public domain, by publication otherwise,
through no fault of the person receiving information.
(c) The information which the disclosing party advised the receiving party was no longer
confidential.
6. Term
The term of this Agreement shall commence on the date first set forth above and shall
continue for a period of five (5) years, unless and until terminated as provided elsewhere in
this Agreement.
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Agreement.
7. Termination
(a) Notwithstanding Section 7, either party may terminate this Agreement prior to its
expiration by written notice to the other party, if the other party has materially
breached any provision hereof and failed to cure such breach within thirty (30) days
after receipt of written notice from the terminating party describing the breach in
reasonable detail.
(b) If this Agreement is terminated due to the material breach by Licensee, Licensee shall
immediately cease the use of the Product or any portion thereof in production, and
marketing after the date of such early termination. Licensee shall further return to
APPRO all confidential or proprietary information in its possession and shall make no
other or further use of such information.
(c) Any termination of this Agreement in whole or part pursuant to this Section shall not
preclude resort by the terminating party to any other remedies available to it.
8.
Survival of Obligations
Notwithstanding anything to the contrary in this Agreement, the expiration or early
termination of this Agreement shall not release either APPRO or Licensee from their
respective obligations under Sections 6, 11, 17, 19 and 20 hereof, and such Sections shall
survive such expiration or termination and remain in effect. Similarly, such expiration or
termination shall not release a party from any liability which has already accrued to the
other party as of the date of expiration or termination.
9.
Assignment
Neither party may assign any rights or delegate any duties under this Agreement without
the other party's prior written consent, and any attempt to do so without such consent shall
be void.
10.
Notices
Except as otherwise provided herein, all notices required or permitted to be given
hereunder shall be in writing and shall be valid and sufficient only if dispatched by certified
or registered mail, postage prepaid, confirmed facsimile transmission (confirmed in writing)
or personal delivery, addressed to the party to be notified at its address first above written,
or such other address as such party may designate in writing to the other party hereto. In
the case of a notice sent by certified or registered mail, such notice shall be deemed to have
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Agreement.
been given ten (10) days after dispatch of the same. In the case of a notice sent by
confirmed facsimile transmission or personal delivery, such notice shall be deemed to have
been given upon receipt of same.
11. Severability
Any provision or term of this Agreement which is prohibited or unenforceable in any
jurisdiction shall be, as to such jurisdiction, unenforceable only to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable any provision hereof in any other jurisdiction. To the extent permitted by
applicable law, APPRO and Licensee hereby waive any provision of law which prohibits or
render unenforceable in any respect any provision hereof.
12. Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same instrument.
13. Section Headings
The headings to the Sections of this Agreement are inserted for convenience of reference
only, they do not form a part of this Agreement and shall not in any way affect the meaning
or interpretation hereof.
14. Force Majeure
Neither party shall be responsible for any failure to perform its obligations hereunder
(except for obligations to make any payments when due) due to any cause or event beyond
such party's reasonable control, including without limitation acts of God, war, civil
commotion, riots, embargoes, domestic or foreign governmental laws or acts, regulations or
orders, fires, floods, earthquakes, accidents, machinery malfunctions, quarantines, strikes,
lockouts or other labor difficulties. The affected party shall give the other party prompt
notice of such cause or event and in no case any later than seven (7) days after such cause
or event. The notice shall describe the nature of the cause or event, including an
estimation of its expected duration and probable impact on the ultimate performance of the
affected party's obligations hereunder. Each party shall exercise all reasonable efforts to
mitigate or limit damages to the other party resulting from the nonperformance.
15. Indemnification
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Agreement.
(a) APPRO shall indemnify and hold Licensee harmless from and against any claims or
suit alleging that the Product provided by APPRO pursuant to this Agreement infringes
any patent rights, copyrights or other intellectual property rights of any third party
when used for its intended purposes; provided that (1) Licensee gives APPRO prompt
notice in writing of any such suit and permits APPRO, through counsel of its choice,
to answer the charge of infringement and defend such claim or suit, (2) Licensee
provides APPRO with all applicable evidence of such claim, (3) APPRO has sole
control of the defense and all related negotiations for its settlement or compromise, (4)
Licensee provides APPRO with the assistance, information and authority to perform
the above.
(b) APPRO shall also indemnify and hold Licensee harmless from and against any and all
damages accrued Licensee or any third party that are caused by the Product provided
by APPRO pursuant to this Agreement and pay such amount as necessary to
compensate for such damages.
(c) Notwithstanding the foregoing indemnity, APPRO shall have no liability hereunder for
any claim or suit based upon or arises out of the use of the Product: (i) in any manner
not specified in the Specifications; (ii) if the Product has been modified by Licensee or
any third party; or (iii) if the Product is combined, operated or used with any software
or hardware not furnished or developed by APPRO.
(d) The exclusion of consequential damages as set forth in Section 17 shall not apply to this
Section 16.
16. Consequential Damages
APPRO BELIEVES THAT THE PRODUCT FURNISHED HEREUNDER IS
ACCURATE AND RELIABLE AND WHEN SUCH PRODUCT MEETS THE
SPECIFICATIONS AGREED UPON BY THE PARTIES, THE PRODUCT SHALL
BE DEEMED COMPLETED. APPRO SHALL NOT BE LIABLE FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE
OR OPERATIONS OF THE PRODUCT, REGARDLESS OF HOW ARISING,
REGARDLESS OF THE CAUSE OF ACTION, IN TORT, CONTRACT, OR
OTHERWISE. APPRO DOES NOT MAKE ANY WARRANTIES OF ANY KIND.
NO WARRANTY IS GIVEN THAT THE PRODUCT IS ERROR-FREE OR THAT
USE WILL BE UNINTERRUPTED OR THAT THE PRODUCT WILL WORK IN
CONNECTION WITH ANY OTHER MATERIAL OF THIRD-PARTY PRODUCTS.
17. Entire Agreement
(a) This Agreement, together with the Appendices hereto, constitutes the entire agreement
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Agreement.
and understanding between the parties hereto with respect to all matters provided
herein, and supersedes all previous negotiations, statements, representations,
undertakings, and agreements, if any, made between the parties.
(b) No modifications or amendments of this Agreement or any of the terms or conditions
hereof or thereof valid or binding, unless made in writing and signed by the Parties or
duly authorized officer thereof.
18. Governing Law
This Agreement and each party hereof shall be governed by and construed in accordance
with laws of Taiwan.
19. Dispute Resolution
In the event that any dispute between the parties hereto arising out of or in connection with
this Agreement that cannot be resolved through mutual negotiation in good faith, such
dispute shall be settled by arbitration under the Rules of Conciliation and Arbitration of
International Chamber of Commerce by one or more arbitrators. Any arbitrator selected
shall be competent in the legal and technical aspects of the subject matter of this
Agreement.
IN WITNESS WHEREOF, the parties have executed or have caused this Agreement to be
executed by their duly authorized representatives as of the Effective date above.
APPRO PHOTOELECTRON INC.
By:
By:
Name:
Name:
Evan Chen
Title:
Title:
President
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Agreement.
Appendix 1
“Financial date “
The statements shall be delivered at the address:
6F, No.23, Syuan Rd, Shinjuang City, Taipei, Taiwan 242, R.O.C.
The following is USD Account from Appro Photoelectron Inc.
BENEFICIARY: APPRO PHOTOELECTRON INC.
ADDRESS: 6F, NO.23,SYUAN RD,SHINJUANG CITY, TAIPEI, TAIWAN.
ADVISING BANK: TAIWAN COOPERATIVE BANK , CHUNG HO BRANCH
ADDRESS: NO.9, TAI HO ST., CHUNG HO CITY, TAIPEI HSIEN, TAIWAN
SWIFT ADDRESS:
TACBTWTP062
ACCOUNT NO.: 0620665001651
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