영문 라이센스계약서(LICENSE AGREEMENT)

LICENSE AGREEMENT(영문-라이센스계약서)

 

WHEREAS, SAM has been engaged mainly in the design, manufacture and sale of electric cables and industrial machineries and equipment, and WHEREAS, ABC is willing to grant and render such license and technical assistance to SAM ;

NOW, THEREFORE, in consideration of the aforesaid premises and mutual covenants herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows :

 

1.1.1 Model IS50G Nini Hydraulic Excavator for which general specific

1.1.2 Model IS200G (including IS200GLS) Hydraulic Excavator for which general specifications are described on Appendix 1-2 attached hereto and making an integral part hereof,

1.1.3 Any and all spare parts, replacement parts and components for the above Models and any and all optional items including but not limited to attachments and accessories for use as part of or In conjunction with the above Models, and/or

 

1.2 The term Territory shall mean an area comprised of and delimited by the geographical region lawfully occupied by the country of the Republic

 

1.3 The term ABC's Technical Information shall mean the inventions, industrial secrets Industrial secrets, know-how, drawings, and technical and engineering

 

1.4 The term ABC's Industrial Property Rights shall mean any and all patents  patents, utility models and applications therefor in any country ABC's Industrial Property Rights as of December 1, 1989 are as enumerated on Appendix 2 attached hereto and making an integral part hereof.

 

1.5 The term Net Selling Price shall mean the gross invoice price billed by SAM for any of the Licensed Products manufactured and sold or items is actually paid by SAM to whom it has to be duly paid and separately stated on the invoice or shown by reasonable proof by SAM to the effect that it has been included in said gross invoice price

1.5.1 Sales discount,

1.5.3 Sales commissions,

1.5.4 Indirect taxes on sales,

1.5.5 Packing expenses on sales,

1.5.6 Transport expenses on sales,

1.5.7 Insurance premium on sales,

1.5.8 Advertizement fee, and

1.5.9 CIF price, Import duties of any components and parts purchased from ABC and other expenses relevant to Import thereof.

 

1.6 The term Accounting Period shall mean each six(6) months period during the life of this Agreement ending on the last day of June or De

 

1.7 The term Contractual Year shall mean each one(1) year period ducting the life of this Agreement consisting of the Former Accounting

 

1.8 The term Effectuation Date shall mean the date on which this Agreement shall come into full force and effect pursuant to the provisions of

 

1.9 The term Termination Date shall mean the date on which this Agreement shall terminate by the expiration of the term or for any cause or by agreement of the parties hereto pursuant to the provisions of Section 13.4 of Article 13 hereof or any of Section 15.2, 15.3, 19 hereof.

 

Article 2. Grant of Licenses

2.1 Subject to the terms and conditions of this Agreement and during the life of this Agreement, ABC hereby grants to SAM an exclusive, non

 

2.2 Subject to the terms and conditions of this Agreement and during the life of this Agreement, ABC hereby grants to SAM a non-exclusive,

 

2.2.1 Where ABC is already engaged in the ordinary sales activity of the Licensed Products;

Japan

Singapore

Malaysia

The People's Republic of China

 

2.2.2 Where ABC has already granted to a third party an exclusive sales right for the Licensed Products ;

 

2.3 Nothing herein contained shall be construed as conferring upon SAM the right to grant to anyone else any sublicense to manufacture and/or sell the Licensed Products under the rights and licenses granted to

 

Article 3. Technical Assistance

3.1 Subject to the provisions of Article 6 hereof, ABC shall furnish to SAM, not later than ninety(90) days after the Effectuation Date, ABC's Technical Information in the possession of ABC on the Effectuation Date enumerated on Appendix 3 attached hereto and making an integral part hereof, according to the schedule set forth on such Appendix 3,

 

3.2 Subject to the provisions of Article 6 hereof and Sections 17.1 and 17.2

 

3.3 Subject to the provisions of Article 6 hereof and Sections 17.1 and 17.2 training services in order to help such SAM's personnel become acquainted with ABC's manner in the design and manufacture of the Licensed Products within the scope of ABC's Technical information furnished to SAM pursuant to the provisions of Sections 3.1 and 3.2 of this Article. In each case of dispatch SAM shall in advance advise ABC of the purpose of dispatch, the number and names of SAM's personnel dispatched, and the scheduled length of their stay and obtain ABC's agreement on receiving such SAM's personnel provided that ABC shall not unreasonably refuse nor postpone receiving such SAM's personnel unless it is certain that receiving such SAM's personnel will impede the normal conduct of the relevant work of ABC. All costs and expenses incurred by such SAM's personnel in connection with their visit and stay with ABC hereunder shall be borne by SAM. In no event, however, SAM shall be entitled to enjoy ABC's training services under this Section after the end of the Fourth(4th) Contractual Year, j.e., December 31, 1993.

 

3.4 Subject to the provisions of Article 6 hereof and Sections 17.1 and 17.2

 

3.5 Any additional training services and consulting and advisory services exceeding the limits set forth in Sections 3.3 and 3.4 of this Article,

 

Article 4. Subcontracting

4.1 Subject to the provisions of Sections 10.2 and 10.3 of Article 10 hereof,

 

Article 5. Supply of Components and Parts

5.1 So long as SAM finds it still difficult to procure in the territory certain

 

5.2 The supply of the components and parts for the Licensed Products set forth in Section 5.1 of this Article shall be conducted in accordance

 

Article 6. Payments

In consideration for the rights and licenses granted to SAM by ABC here under and the technical assistance rendered to SAM by ABC hereunder ex we :

 

6.1 SAM shall pay to ABC an initial payment of Ten Million Japanese Yen ( ￥ 10,000,000) in three(3) installments according to the following 6.1.1 First(1st) installment : Five Million Japanese Yen( not later than thirty(30) days after the Effectuation Date,

6.1.2 Second(2nd) Installment : Three Million Japanese Yen( not later than sixty(60) days after the Effectuation Date, and

6.1.3 Third(3nd) Installment : Two Million Japanese Yen( not later than ninety(90) days after the Effectuation Date.

6.2 In addition to the initial payment under Section 6.1 of this Article, SAM 6.2.1 Three Percent(3%) : applicable until any contractual Year in which the total sum of royalties paid and payable by SAM to ABC accumulated from the First(1st) Accounting Period(hereinafter referred to as the Assumulated Royalty) has attained to Forty Mil lion Japanese Yen( ￥ 40,000,000) ,

6.2.3 Two Point Three Percent(2.3%) : applicable from the Contractual Year subsequent to the Contractual Year set forth In Paragraph 6. 2.2 of this Section.

 

6.3 Not later than sixty(60) days after the close of each Accounting Period, SAM shall pay to ABC royalties for all of the Licensed Products

 

6.4 SAM undertakes that if in the Fifth(5th) Contractual Year ending on December 31, 1994 the Accumulated Royalty has not attained to Forty ￥ 40,000,070), SAM shall, in addition to the pay

 

For ABC CONSTRUCTION MACHINERY CO., LTD.

Bank : THE DAI-lCHl KANGYO BANK, Yokohama Branch

Account No. : 1417935 or any other bank account ABC may designate from tome to time during the life of this Agreement. Upon remittance, SAM shall advise ABC by telefax as to the date of remittance, name and location of SAM's paying bank in Seoul, Korea, exchange rate applied and Japanese Yen amount remitted.

 

7.3 SAM shall also furnish ABC with such other reports and evidences as ABC may from time to time reasonably require in order to verify the accuracy of SAM's calculation of the royalty.

 

7.4 In order to ascertain the accuracy or inaccuracy of SAM's books of account set forth in Section 7.1 of this Article, ABC shall have the right through the use of its authorized accountants and/or its own personnel to Inspect and/or audit such SAM's books of account at all reasonable times during SAM's normal business hours at the offices of SAM and SAM shall permit such ABC's authorized accountants and/or ABC's own personnel to take excerpts from and make copies of any entries in or details of such SAM's books of account.

 

Article 8. Sales Promotion

8.1 SAM shall make all reasonable e(forts to manufacture and sell enough quantity of the LICENSEE Products to reasonably meet with market demand in the Territory.

 

8.2 In view of the exclusive right and license granted to SAM hereunder, SAM shall make utmost efforts to promote the use of the LICENSEE Products and enhance the sales growth there of in the Territory pursuant to the terms and conditions of this Agreement.

 

8.3 In addition to the reports to be made by SAM pursuant to the provisions of Article 7 hereof, SAM agrees to furnish ABC with such other reports as ABC may reasonably require from tome to time during the life of this Agreement in connection with the activities of SAM under this Agreement.

 

8.4 Promptly after the Effectuation Date, ABC will furnish SAM with one (1) set of ABC's current catalogs and salesman handbooks covering the Licensed Products. ABC will also furnish SAM, upon request of SAM, with other ABC's then available information ABC may deem necessary for SAM to prepare quotations. It is understood, however, that ABC shall in no way be obligated hereunder to furnish SAM with any cost/price and profit/loss information of ABC concerning the Licensed Products manufactured and sold by ABC.

 

Article 9. Non-Competition

9.1 SAM undertakes that during the life of this Agreement SAM shall not engage, directly or indirectly, in manufacturing, selling or otherwise handling any hydraulic excavators other than the Licensed Products without the prior written consent of ABC.

 

Article 10. Secrecy

10.1 SAM agrees to receive and maintain in confidence and not to disclose or divulge to any third party ABC's Technical Information or any other information or data furnished or disclosed to SAM by ABC here under without the prior written consent of ABC in each case, except any information.

 

10.1.1 that SAM can prove Is already in the public domain on the Effectuation Date,

 

10.1.2 that SAM can prove has become in the public domain during the life of this Agreement through no fault of SAM,

 

10.1.3 that SAM can prove is in its possession prior to the Effectuation Date, or

 

10.1.4 that SAM can prove has been received by SAM in good faith from a third party during the life of this Agreement.

 

10.2 SAM is permitted to disclose part of ABC's Technical Information furnished or disclosed to SAMby ABC hereunder to SAM's own employees who will be engaged in design, manufacture and/or after-sales service of the Licensed Products and to SAM's subcontractors under Article 4 hereof, respectively, only to the extend necessary for the purposes intended or allowed by SAM.

 

10.3 SAM shall obtain the same secrecy undertaking as set forth in Section10.1 of this Article from each of such SAM's employees or SAM's subcontractors and cause each of such SAM's subcontractors to obtain the same secrecy undertaking from such SAM's subcontractor's employees.

 

10.4 The secrecy undertaking of SAM under this Article shall apply without territorial limitation and survive for five(5) years after the Termination Date subject to the provisions of Section 16.7 of Article 16 hereof.

 

Article 11. Modifications and Improvements by SAM

11.1 SAM shall be entitled to change or modify, subject to the prior written approval of ABC and at SAM's costs and expenses, ABC's Technical Information furnished to SAM by ABC hereunder if, as and to the extent that SAM shall be required to suit the Licensed Products to local conditions in the Territory or elsewhere hereunder and/or to improve the Licensed Products provided that SAM shall not be relieved from its obligation to pay the royalty specified in Article 6 hereof on account of any change, modification, improvement and/or development made by SAM in connection with the Licensed Products for any reason or purpose whatsoever.

 

11.2 SAM shall at its costs and expenses keep ABC Informed of any change, modification, improvement, development, invention and/or experience SAM may make or acquire in connection with the Licensed Products during the life of this Agreement.

 

11.3 SAM shall be entitled to apply for and obtain any industrial property rights for and under the name of SAM in any country throughout the world covering inventions connected with the Licensed Products made or acquired by SAM during the life of this Agreement.

 

11.4 SAM agrees to grant to ABC a royalty-free, non-exclusive right and license under SAM's industrial property rights and know-how to utilize in any country throughout the world such SAM's changes, modifications, improvements, developments, inventions and/or experiences as set forth in Sections 11.2 and 11.3 of this Article for the validity period of any such industrial property rights and for the useful life of any such know-how.

 

Article 12. Product Identification

12.1 Subject to the terms and conditions of this Agreement and during two(2) years from the Effectuation Date, SAM shall be entitled to use the trademark ABC - SAM on the Licensed Products manufactured and sold by SAM hereunder and in SAM's catalogs, instruction manuals and parts catalogs covering such Licensed Products provided that SAM shall in no manner be entitled to use such trademark on such Licensed Products for use in any countries or areas outside the Territory.

 

12.2 SAM's use of the trademark set forth in Section 12.1 of this Article for any other sales promotional purposes including but not limited to advertisement and sales promotional gifts shall be subject to the prior written approval of ABC. If and when SAM desires to use the legend manufactured under license from ABC Construction Machinery Co., Ltd. on the Licensed Products manufactured and sold by SAM hereunder and/or for any purpose related thereto, SAM shall be permitted to do so only if SAM has first obtained the prior written approval of ABC. It is understood and agreed by the parties hereto, how-ever, that SAM shall in no manner be entitled to use the said trade-mark and/or legend on SAM's invoices or letter heads. .

 

12.3 It is understood and agreed by the parties hereto that except as specifically set forth in Section 12.1 of this Article, SAM shall in no manner be entitled to use any of the trademarks or trade names of or identifications having any reference to ABC's parent company, ABC 000000000 HEAVY INDUSTRIES CO., LTD., a corporation duly organized and existing under the laws of Japan, having its registered head office at 2-1, Ohtemachi 2-chomp, Chiyoda-ku, Tokyo, Japan(hereinafter referred to as 000 ).

 

12.4 SAM undertakes that SAM shall not register in the Territory or else-where the trademark set forth in Section 12.1 of this Article as a registered trademark.

 

Article 13. Warranties and Liabilities

13.1 ABC warrants that ABC's Technical Information furnished to SAM by ABC pursuant to the provisions of Article 3 hereof shall be the same as is being used by ABC on the Effectuation Date for the purpose of manufacturing the Licensed Products or as will be used or us-able for ABC's own manufacture of the Licensed Products at the time of ABC's furnishing such ABC's Technical Information to SAM, as the case may be. ABC in no way warrants that ABC's Technical Information to be furnished to SAM under this Agreement shall be free from defects nor that the Licensed Products manufactured by SAM in accordance with such ABC's Technical Information shall satisfactorily function so as to fit for any particular purpose or use required by a purchaser or user of such Licensed Products provided however that ABC shall at its own costs and expenses correct or modify such defects or omissions, if any, in such ABC's Technical Information.

 

13.2 SAM shall, in accordance with its own commercial practice, take the sole responsibility for warranties to its dealers, purchasers or users that the Licensed Products manufactured and sold by SAM under this Agreement shall be free from defects.

 

13.3 SAM shall Indemnify ABC and its affiliates Including but not limited to 00 for and hold ABC and its affiliates including but not limited to00 harmless from any claims, losses, damages and/or liabilities including but not limited to product liability which may be incurred by ABC and/or its affiliates including but not limited to 00 in connection with the Licensed Products manufactured and sold by SAM here-under or due to any activities of SAM under this Agreement.

 

13.4 ABC represents that to the best of its belief ABC's Technical Information to be furnished to SAM under this Agreement is not infringing up on any patents or other Industrial property rights of any third parties as of the Effectuation Date. ABC in no way makes any further representation or warranty, express or implied, that any of ABC's Technical Information to be furnished to SAM under this Agreement shall not infringe upon any patents or other industrial property rights of any third parties. Notwithstanding the foregoing provisions of this Section, should SAM be required to pay a royalty to a third party in order to manufacture and sell the Licensed Products because of such third party's industrial property rights, and ABC acknowledges that much license is required by SAM, the parties hereto agree to share the cost of such royalty on a 50/50 basis. If however, because of such third party's industrial property rights a license from such third party is unavailable, the parties hereto shall seek a solution acceptable to both parties hereto provided however that if the parties hereto are un-able to find out any such solution, and then in the event that SAM discontinues the sale of the Licensed Products under this Agreement, either party hereto shall have the right to terminate this Agreement by giving a sixty(60) days written notice to the other party hereto, and this Agreement shall terminate without damages or penalty to be paid by either of the parties hereto to the other party hereto.

 

13.5 ABC's warranty pursuant to the foregoing provisions of this Article shall be sole and exclusive and shall replace any other liability, warranty, guarantee or condition imposed upon ABC or implied against ABC by law, customarily or otherwise.

 

Article 14. ABC's Industrial Property Rights

14.1 It shall be at ABC's sole discretion whether or not to apply for, obtain and maintain any of ABC's Industrial Property Rights in the Territory or elsewhere In the world provided that it shall be at ABC's own costs and expenses to apply for, obtain and maintain any of ABC's Industrial Property Rights for and under the name of ABC.

 

14.2 SAM shall in no way prejudice the validity of any of ABC's Industrial Property Rights and shall immediately inform ABC of any infringements upon ABC's Industrial Property Rights by any unauthorized third parties which may come to SAM's knowledge.

 

14.3 ABC guarantees neither the novelty, usefulness nor validity of any of ABC's Industrial Property Rights, and neither the Invalidation nor expiration of any or all of ABC's Industrial Property Rights shall in anyway affect the obligations of SAM under this Agreement

 

Article 15. Effectuation, Term and Termination

15.1 This Agreement shall, after the signing thereof by both parties hereto, come into full force and effect on the date on which this Agreement shall have been approved by the Government of the Republic of Korea with conditions thereon or amendments thereof, if any, imposed or required by the Government of the Republic of Korea provided that SAM shall inform ABC in writing without delay of such conditions or amendments and further that the parties hereto shall have agreed to such conditions or amendments to their mutual satisfaction.

 

15.2 In the event that the parties hereto are unable to agree to accept said conditions or amendments imposed or required by the Government of the Republic of Korea, the parties hereto shall seek a mutually acceptable solution but in no event be obligated to accept whatever conditions or amendments, and in the event and only if the parties hereto are unable to find any mutually acceptable solution concerning such conditions or amendments, the parties hereto shall agree to terminate this Agreement on the date on which a written notice thereof given by either party hereto has been received by the other party hereto notwithstanding the fact that this Agreement shall once have been signed by both parties hereto.

 

15.3 This Agreement shall continue to be in full force and effect for an initial term of five(5) years from the Effectuation Date. If and when either of the parties hereto desires to extend this Agreement, one party hereto desiring to do so shall inform in writing the other party hereto of such intent and then both of the parties hereto shall be required to agree upon the extension not later than three(3)months prior to the expiration of the initial term of this Agreement for the purpose of avoiding the discontinuance of the term thereof. Unless extended pursuant to the provisions of this Section, this Agreement shall terminate by the expiration of such initial term without any notice of termination from one party hereto to the other party hereto.

 

15.4 In the event either party hereto should commit a material breach of and/or gross negligence of its obligations under this Agreement and if such defaulting party has not cured such breach and/or negligence within sixty(60) days after having received a notice thereof from the non-defaulting party, the non-defaulting party shall have the right to terminate this Agreement on the date on which a written notice of termination given by the non-defaulting party has been received by the defaulting party not later than thirty(30) days after the lapse of said sixty(60) days.

 

15.5 In the event either party hereto should become adjudicated bankrupt, go into liquidation, receivership, insolvency or trusteeship or be as-signed to the benefit of creditors of such peaty, the adversely affected party shall be entitled to terminate this Agreement on the date on which a written notice of termination given by the adversely affected party has been received by the said party.

 

15.6 Either party hereto shall have the right to terminate this Agreement on the date on which a written notice of termination given by such party hereto has been received by the other party hereto if and company or body which Is or becomes in any way a competitor of the other party hereto in respect of the Licensed Products or which has a material adverse effect on the ability of the other party hereto to par form Its obligations hereunder, e.g., the other party hereto discontinues its business activities for the Licensed Products.

 

15.7 Any termination of this Agreement by either party hereto pursuant to the provisions of Section 15.4, 15.5 or 15.6 of this Article shall be in addition to, and shall not be exclusive of or prejudicial to, any other rights and remedies such party may have on account of the default of the other party hereto.

 

15.8 At any time during the life of this Agreement the parties hereto shall be entitled to terminate this Agreement by mutual agreement of the parties hereto.

 

Article 16. Effects of Termination

16.1 In the event this Agreement terminates by the expiration of the initial term thereof pursuant to the provisions of Section 15.3 of Article 15hereof, SAM shall, after the Termination Date, be free to continue to manufacture and sell the Licensed Products using ABC's Technical Information furnished to SAM by ABC hereunder subject to the provisions of Section 10.4 of Article 10 hereof and Section 16.7 of this Article.

 

16.2 The provisions of Section 16.1 of this Article shall also apply If this Agreement is terminated by SAM hereunder on account of any cause or reason attributable to ABC.

 

16.3 Except as otherwise specifically set forth in Sections 16.1 and 16.2 hereof, upon termination of this Agreement, all the rights and licenses granted to SAM by ABC hereunder shall cease and SAM shall make no further use of ABC's Technical Information and ABC's Industrial Property Rights furnished and Licensed to SAM by ABC here under and shall, if requested by ABC, promptly return to ABC at SAM's costs and expenses all such ABC'S Technical Information with all copies thereof.

 

16.4 In any event the Licensed Products contracted by SAM not later than the Termination Date shall be deemed to have been manufactured and sold under this Agreement irrespective of whether or not such Licensed Products are manufactured and sold during the life of this Agreement or after the Termination Date and SAM shall settle the payment of all outstanding royalties pursuant to the provisions of Article 6 hereof and this Section not later hen sixty(60) days after the Termination Date.

 

16.5 In the event that this Agreement Is terminated by ABC on account of any cause or reason attributable to SAM pursuant to the provisions of Section 15.4, 15.5 or 15.6 of Article 15 hereof at any time during the initial term of five(5) years after ninety(90) days from the Effectuation Date provided that SAM shall have received all of ABC's Technical Information under Section 3.1 of Article 3 hereof, SAM hereby expressly undertakes that SAM shall pay to ABC not later than sixty(60) days after the Termination Date all outstanding royalties pursuant to the provisions of Article 6 hereof and Section 16.4 of this Article and further that if and when the Accumulated Royalty bald by SAM has not attained to Forty Million Japanese Yen( ￥40,000,000) SAM shall pay to ABC as damages an amount of deficiency to make up for forty Million Japanese Yen( ￥47,000,000), not later than sixty(60) days after the Termination Date. If and when the provisions of this Section are fulfilled, ABC shall waive its rights to claim for any and all damages against SAM notwithstanding anything to the contrary contained elsewhere herein.

 

16.6 In the event that this Agreement is terminated by SAM on account of any cause or reason attributable to ABC pursuant to the provisions of Section 15.4, 15.5 or 15.6 of Article 15 hereof at any time during the initial term of five(5) years after ninety(90) days from the Effectuation Date provided that ABC shall have furnished to SAM all of ABC's Technical Information under Section 3.1 of Article 3 hereof, SAM hereby expressly undertakes that SAM shall pay to ABC not later than sixty(60) days after the Termination Date all outstanding royalties pursuant to the provisions of Article 6 hereof and Section 16.4 of this Article. If and when the Accumulated Royalty received by ABC exceeds Forty Million Japanese Yen( ￥40,000,000) , ABC shall pay to SAM as damages an amount equivalent to forty percent(40%) of the portion exceeding Forty Million Japanese Yen(￥ 40,000,000) not later than sixty(60) days after the Termination Date. If and when the provisions of this Section are fulfilled, SAM shall waive its rights to claim for any and all damages against ABC notwithstanding anything to the contrary contained elsewhere herein.

 

16.7 Notwithstanding anything to the contrary contained elsewhere herein, SAM hereby expressly undertakes that SAM shall, even after the Termination Date, not sell nor assign in whole or in part ABC's Technical Information furnished to SAM by ABC hereunder nor create in favor of any third party any right to such ABC's Technical Information including but not limited to granting any license thereunder.

 

16.8 Notwithstanding anything to the contrary contained elsewhere herein, SAM shall, after two(2) years from the Effectuation Date and/or after the Termination Date, In no way use the name of 07or ABC or any reference to 00 or ABC including but not limited to those under Sections 12.1 and 12.2 of Article 12 hereof in connection with any business activities of SAM unless otherwise specifically agreed upon by ABC and SAM.

 

Article 17. Other Model

17.1 Any models of Hydraulic Excavators in the same bucket capacity range as the Licensed Products of the Models set forth In Paragraphs1.1.1 and 1.1.2 of Section 1.1 of Article 1 hereof which may have been developed by ABC during the life of this Agreement, irrespective of any model naming or identification thereof, so as to supersede such Licensed Products theretofore manufactured and sold by ABC in Japan shall be deemed to be within the scope of the normal modifications and/or improvements of such Licensed Products set forth in Paragraph 1.1.4 of Section 1.1 of Article 1 hereof subject to the provisions of Section 17.2 of this Article.

 

17.2 Any model of Hydraulic Excavators set forth in Section 17.1 of this Article which, however, is of new design concept and/or developed by ABC with the expenditure of extraordinary development costs(herein-after referred to as the Comparable New Models ) shall be deemed to be beyond the scope of the normal modifications and/or improvements of the Licensed Products set forth In Paragraph 1.1.4 of Section 1.1 of Article 1 hereof.

 

17.3 Subject to the terms and conditions of this Agreement and during the life of this Agreement, SAM shall have the optional right to acquire from ABC the license and ABC's Technical Information as for the Comparable New Models if SAM so desires and requests in writing. In each event of SAM's exercising such optional right, ABC and SAM shall make and enter into a license agreement separate from this Agreement, of which terms and conditions shall he subject to mutual agreement of ABC and SAM. Even if SAM does not exercise touch optional right or if ABC and SAM fail to agree upon the terms and conditions of the license agreement for the Comparable New Models, ABC shall not grant such license to any third party for nor sell the Comparable New Models in the Territory in view of the fact that SAM Is ABC's exclusive license In the Territory here under as for the Licensed Products comparing to the Comparable New Models,

 

17.4 In addition to the Licensed Products of the Models set forth in Paragraphs 1.1.1 and 1.1.2 of Section 1.1 of Article 1 hereof, ABC has as of December 1, 1989 such other Models of Hydraulic Excavators of ABC design as enumerated on Appendix 5 attached hereto and making an integral part hereof (hereinafter referred to as the Other Existing Models ) and Is willing to grant similar sights and licenses and render similar technical assistance as set forth herein to SAM concerning any of such Other Existing Models if so desired and requested in writing by SAM during the life the Other Existing Models, ABC and SAM shall make and enter into a license agreement separate from this Agreement, of which terms and conditions shall be substantially the same as the initial terms and conditions of this Agreement set forth herein :

 

17.5 It is understood and agreed by the parties hereto that ABC's granting to SAM the license for any other new models of hydraulic excavators ABC may develop during the life of this Agreement shall be made subject to the mutual agreement of ABC and SAM in each case.

 

17.6 SAM's optional rights to acquire from ABC the license for the Comparable New Models, the Other Existing Models and the Other New Mod-els under this Article shall be subject to the provisions of the following Paragraphs of this Section :17.6.1 Whenever ABC has developed any of the Comparable New Models or the Other New Models, ABC shall Inform SAM of such fact In due course.

 

17.6.2 If and when any third party In the Territory requests ABC in writing to grant such license, ABC shall promptly inform SAM of such fact by a written notice and SAM shall have the first refusal right to acquire such license provided that SAM shall notify ABC in writing whether or not SAM elects to acquire such license not later than forth-five(45) days after receipt of said ABC's notice. If SAM elects not to acquire such license or upon the lapse of such forty-five(45) days' period, ABC shall be free to grant such license to said third party subject to the provisions of Section 17.3of this Article, and

 

17.6.3 ABC shall reserve the right to sell any of the Other Existing Models and the Other New Models in the Territory and elsewhere unless and until SAM elects to acquire the license therefor from ABC subject to the provisions of Paragraphs 17.6.1 and 17.6.2 of this Section,

 

17.7 Nothing contained in this Article shall preclude SAM from purchasing from ABC for resale on a non-exclusive basis any of the Comparable New Models, the Other Existing Models or the Other New Models manufactured by ABC subject to the mutual agreement between SAM and ABC until ABC grants an exclusive license to any third party in the Territory pursuant to the provisions of Paragraph 17.6.2 of Section 17.6 of this Article.

 

Article 18. Taxation

18.1 If any withholding taxes are imposed on ABC on account of any payments to be made by SAM to ABC hereunder under the Korean laws in compliance with the Tax Treaty between the Republic of Korea and Japan, SAM shall deduct such taxes from such payments to ABC only to the extent SAM may be required and allowed to do so pursuant to such Tax Treaty. SAM shall pay such taxes deducted to the competent Korean taxation official certificates or other evidences of SAM's tax payment Issued by such Korean taxation offices enough to support ABC's claim for tax credit in respect of such taxes so deducted and paid by SAM.

 

18.2 Any other taxes which may be Imposed by any relevant laws of any country as a result of the existence and/or performance of this Agreement shall be borne and paid by the party hereto which is required to pay such taxes by such laws.

 

Article 19. Force Majeure

19.1 Neither party hereto shall be liable to the other party hereto for non-performance or delay in performance of any of its obligations under this Agreement due to causes beyond its reasonable control including fires, floods, strikes, labor troubles or other industrial disturbances, governmental acts or regulations, riots and Insurrections ( here in after individually or collectively referred to as Force Majeure). Upon the occurrence of any such event the affected party shall immediately notify the other party hereto as much in detail as possible and shall keep the other party hereto informed of any further development of such event. Immediately after such event ceases or is removed, the affected party shall perform its obligations pending with due speed.

 

19.2 Should either party hereto be prevented from fulfilling its obligation sunder this Agreement by Force Majeur under Section 19.1 of this Article lasting continuously for a period of at least four(4) months, the parties hereto shall make their best efforts to seek a mutually acceptable solution. If no such solution is found within a period of three(3) months thereafter, either party hereto shall have the right to terminate this Agreement by giving a written notice of termination to the other party hereto without paying any damages to the other party on the date on which such notice of termination has been received by the other party hereto provided however that neither party hereto shall be discharged from its obligations towards the other party hereto to pay any sums which may have become due and payable to the other party pursuant to the terms and conditions of this Agreement.

 

Article 20. Assignment

20.1 Neither of the parties hereto shall be entitled to assign this Agreement in whole or in part nor any rights or obligations hereunder to any third party without the express prior written consent of the other party hereto except where either of the parties hereto assign all of its rights and obligations under this Agreement to its legal successor subject to the provisions of Section 15.7 of Article 15 hereof.

 

Article 21. Annual Consultation

21.1 In order to promote a close and cooperative relationship between the parties hereto through timely resolution of questions arising from time to time out of or in connection with this Agreement, the parties hereto shall hold a periodic consultation meeting every year to discuss market status, technical matter, production, sales promotion, competition and reputation of the Licensed Products as well as any other matters related to this Agreement. Time, place and agenda of such meeting of each year shall be mutually agreed upon well in advance by the parties hereto.

 

21.2 In the event of any important question, the parties hereto shall faithfully seek a most appropriate and mutually satisfactory solution and once the parties hereto have agreed to any such solution, then the parties hereto shall cooperate with each other to apply such solution without deals.

 

Article 22. Settlement of Disputes

22.1 All disputes between the parties hereto arising out of or in connection with this Agreement shall be resolved promptly and amicably by negotiation between the parties hereto. If any such dispute has not been resolved amicably by the parties hereto within three(3) months after a formal notice of the dispute is given by one party hereto to the other party hereto, either party hereto may demand an arbitration of the dispute pursuant to the Agreement between The Korean Commercial Association and The Japan Commercial Arbitration Association and the dispute shall be finally settled by such arbitration. The arbitration shall take place in Seoul, Korea or Tokyo, Japan pursuant to such Agreement. The award of the arbitration shall be final and binding upon the parties hereto.

 

Article 23. Language

23.1 The language to be used by the parties hereto in furnishing ABC's Technical Information to SAM by ABC and rendering technical services to SAM by ABC hereunder shall at ABC's option be English or Japanese. ABC's Technical Information shall also be written in English or Japanese at ABC's option.

 

23.2 The language to be used by the parties hereto in notices, communications or correspondences in connection with this Agreement shall at ABC's option be English or Japanese.

 

23.3 The language of the authentic text of this Agreement shall be English.

 

Article 24. Notices

24.1 All notices, communications or correspondences between the parties hereto In connection with this Agreement shall be valid if made by registered airmail or telefax or telex subsequently confirmed In writing addressed to the office of each other party hereto at the following address :

 

Article 25. Obedience to Laws and Regulations

25.1 It is understood and agreed by the parties hereto that the execution and enforcement of this Agreement and the exercise and performance of the rights and obligations thereunder by the parties hereto shall be subject to the obedience by either or both of the parties hereto to any and all pertinent laws and governmental regulations and requirements of Japan and/or the Republic of Korea.

 

25.2 In the event that this Agreement should at any time after the Effectuation Date be in whole or in part invalidated on account of any conflict with or as a consequence of said laws or governmental regulations or requirements, both parties hereto shall faithfully seek a mutually acceptable solution.

 

25.3 Notwithstanding the provisions of Section 25.2 of this Article, the whole remaining part of this Agreement that will not be so invalidated shall remain valid.

 

Article 26. Consequential Damage

26.1 Notwithstanding anything to the contrary contained elsewhere herein, ABC shall in no manner be liable to SAM for any loss of time, earnings or profits or any other consequential or special damages which may be suffered by SAM due to the causes or reasons attributable to defects or omissions in ABC's Technical Information furnished to SAM by ABC under this Agreement or negligence or any other faults on the part of ABC in connection with this Agreement.

 

Article 27. Entire Agreement

27.1 This Agreement constitutes the entire and only agreement between the parties hereto regarding the subject matter hereof and supersedes any other commitments, agreements or understandings, written or verbal, that the parties hereto may have had.

 

27.2 No modification, change or amendment of this Agreement shall be binding upon the parties hereto except by mutual express consent in writing of subsequent date signed by duly authorized officer or representative of each of the parties hereto.

 

Article 28. Governing Law

28.1 This Agreement shall be governed by and construed in accordance with Japanese law.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed in duplicate by their duly authorized officers as of the day and year first here in above written and retain one(1) fully executed copy each.