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COLLABORATION AGREEMENT |
문서서식포탈비즈폼
THIS AGREEMENT, made and entered into on this first day of November, 2001, beyond between Licensor, a corporation organized and existing under the laws of , having its main office and place of business () (hereinafter referred to as “Licensor”) and Licensee. a corporation organized and existing under the laws of the , having its main office and place of business at ()(hereinafter referred to as “Licensee”).
WHEREAS, Licensor develops high performance storage systems and has developed a technology based on a thin film of polyester as a storage medium;
WHEREAS, Licensee and Licensor want to develop security storage products on the basis of Licensor’s Technology and Licensee’s software (hereinafter referred to as the
“Licensed Products”);
WHEREAS Licensor has the capability to produce important parts needed in such security storage products,;
WHEREAS Licensee has the capability to produce other important parts for such storage products, such as software;
WHEREAS, Licensor has the right to grant a license to use Licensor Technology in connection with the development and sale of the Licensed Products;
WHEREAS, Licensee desires to obtain, and Licensor is willing to grant, the right and license to assemble and sell the Licensed Products in Korea utilizing Technical Information furnished by Licensor;
WHEREAS, Licensor and Licensee already from the day of this Agreement intend to work as if a joint venture already was established and therefore will share the profit from exploiting the Korean market equally;
NOW, THEREFORE, in consideration of premises and covenants hereinafter set forth, the parties hereto agree as follows,
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Article 1. Definitions |
문서서식포탈비즈폼
As used in this Agreement, the following terms have the following meanings respectively;
1.1 Territory” means the territory subject to the Government of the Republic of Korea.
1.2 “Effective Date” is the date from which this Agreement comes into effect which will be the date when this Agreement is signed by both parties.
1.3 “License Period” is the period stated in Article 10.1
1.4 “Licensed Products” means the security storage systems developed jointly by the parties.
1.5 “Licensor Technology” means the Intellectual Property licensed under Article 2.
1.6 “Technical Information” means all the present and future technical knowledge, know-how, standard calculations, data and information developed or otherwise generally used by Licensor pertaining to Licensor Technology.
1.7 “New Intellectual Property” means intellectual property developed under the framework of this Agreement after Effective Date.
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Article 2. Grant of License |
문서서식포탈비즈폼
2.1 Licensor hereby grants to Licensee a sole and exclusive right to utilize the patents and patent applications owned by Licensor listed in Appendix A. Licensor may not sell or distribute the Licensed Products in Territory directly or indirectly. Licensor may not sell its parts to any party other than Licensee, except for the manufacturing of products to be sold outside Territory.
2.2 The right given in 2.1. shall be limited to products developed jointly between Licensor and Licensee.
2.3 The right given in 2.1. shall further be limited to products sold and used in Territory. However, the parties may decide to exploit other territories by means of the joint venture.
2.4 Licensee shall have the license recorded in the Korean Patent Office against the patent register. The cost of recordal shall be borne by Licensee.
2.5 Licensee may not grant any sub-license of the rights granted to it under this Article without the prior written approval of Licensor.
2.6 This Agreement does not change or modify the ownership of patents and Technical Information as may exist at the time of signing this Agreement.
2.7 The parties shall provide each other with a list of patents which they own at the beginning of the Agreement and which shall be used in carrying out the project. The lists, one from each party, shall become part of this Agreement as Appendix
A.
2.8 Each party warrants that the patents listed in Appendix A is the property of each party, respectively, and that it has the right to license it for the purpose of this Agreement.
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Article 3. Licensor’s Guarantee |
문서서식포탈비즈폼
3.1 Licensor agrees that it will prosecute in good faith the aforesaid patent applications which are now pending.
3.2 Licensor guarantees neither the patentability and validity of the licensed patent nor the commercial exploitability of the Licensed Product.
3.3 Licensor shall maintain the granted patents, which is the subject of this Agreement, for the duration of this Agreement.
3.4 Licensor guarantees that he is not aware of any legal deficiencies of the patent licensed hereunder. He particularly guarantees that he is aware of neither any third party’s prior rights to use, nor of a dependency of the licensed patent on third party’s patents, nor of technical deficiencies of the invention on which this patent is based. Licensor assumes no liability for the lack of deficiencies mentioned.
3.5 This Agreement and its validity shall not be influenced by the fact that the licensed patent should finally be declared invalid. Licensee shall however have the right to terminate this Agreement within three months from such a final declaration of invalidity of the licensed patent or to request from Licensor an adjustment of the royalties.
3.6 During the time of this Agreement, either party shall not challenge the validity of other party’s patent or support third parties in such a challenge.
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Article 4. Co-operation |
문서서식포탈비즈폼
4.1 The parties shall set up a project organization for the development workcoordination, to be defined.
4.2 The parties agree to keep each other informed about any improvements or further inventions relating to the Licensed Products or in connection with the design, manufacture, use and sale of the same, without any delay and free of charge.
4.3 Upon request, either of the parties shall send to the other party, subject to availability of personnel and to mutual agreement, qualified engineers and/or technicians to render assistance and services in connection with the development. The requesting party agrees to bear the traveling expenses and living expenses incurred by any such engineer and/or technician.
4.4 Upon written request of Licensee, Licensor shall send to Licensee, subject to availability of personnel and to mutual agreement, qualified engineers and/or technicians to render assistance and services to Licensee in connection with the manufacture, sale and operation of the Licensed Products for a reasonable period to be agreed upon by the parties hereto, provided, however, that Licensee agree to bear the traveling expenses and living expenses in the Republic of Korea incurred by any such engineer and/or technicians. Licensor assures that such engineers and/or technicians are qualified with professional standards and reasonable skill, and will perform the assistance and services with care and diligence.
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Article 5. Licensee’s Obligations |
문서서식포탈비즈폼
5.1 Licensee shall do its best efforts to expediently develop its part of the Licensed Products and assemble the final Licensed Products and to procure NT mark for the Licensed Products from MOCIE.
5.2 Licensee undertakes to actively promote the Licensed Products in order to obtain a maximum sale of the Licensed Products. Licensee is to present three years sales targets, satisfactory to the Licensor, not later than six month from execution of this Agreement. If sales targets can not be agreed upon, or if sales targets are not reached, the Licensor shall be free to terminate this Agreement.
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Article 6. Payment |
문서서식포탈비즈폼
6.1 In consideration of the Technical Information and the Licensor Technology furnished by Licensor to Licensee hereunder, Licensee shall pay to Licensor or any subsidiary designated by the Licensor 50 percent of net selling price for each sale of the Licensed Products.
6.2 Net selling price shall be the gross invoice price of the Licensed Products sold or otherwise disposed of by Licensee in normal, bona fide, commercial transaction without any deduction other than the following items of expenses, if any, to the extent to which they are actually paid and included in the gross invoice price.
A) Customary sales discount actually allowed
B) Amounts repaid or credited by reason of timely rejections or returns;
C) Indirect taxes on sales actually withheld
D) Insurance premiums on sales
E) Customary packing expenses on sales
F) Transport expenses on sales
G) Customary sales commissions paid or allowed to distributors and agents who are independent third parties;
H) Advertisement having reference to the Licensed Products
J) CIF price, and import duties of the raw materials, intermediate goods, parts and other components purchased from Licensor.
K) Assembly cost, including parts supplied by Licensee, to be defined in the annual budget as per below.
As the parties intend to work as if a joint venture already was established, an
annual budget for the collaboration project should be prepared. The budget
should be prepared by Licensee and approved by the Licensor before December
1 of the preceding year. In the budget, the costs A) . K) above should be
specified.
6.3 Royalty shall be calculated according to 8.1. Upon receipt of calculation, Licensor shall issue an invoice of royalty amount to Licensee. Licensee shall make payment to Licensor within 15 days after receipt of relevant invoice from Licensor.
6.4 All payments due under this Article shall be made in U.S. currency, strictly in accordance with this Article, converted from Won at the official telegraphic transfer selling rate of exchange prevailing in Seoul, Korea on the expiry date of the immediately preceding three month period for the calculation of the royalties hereunder.
6.5 All payments made to Licensor hereunder shall be by means of official telegraphic transfer remittance, mail transfer remittance or banker’s check and shall be remitted to the bank designated by Licensor.
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Article 7. Supply of Components, Parts and Raw materials |
문서서식포탈비즈폼
7.1 Upon Licensee’s written request, Licensor shall supply or components parts manufactured by Licensor under this Agreement to Licensee in due time and at reasonable and competitive prices.
7.2 Licensee shall open irrevocable Letter of Credit to buy parts supplied by Licensor.
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Article 8. Records, Auditing and Reports |
문서서식포탈비즈폼
8.1 Licensee shall send its statement of royalties due for the immediately preceding three (3) month period together with full evidences which Licensor may require, to reach Licensor not later than 30 days after the expiration of the immediately preceding three (3) month period.
8.2 At the time of remitting the royalties, Licensee shall submit to Licensor a written report stating the net selling price, overall order price with clients, the number, and the type of the Licensed Products sold or used by Licensee under this Agreement during the three (3) month period ended on March 31, June 30, September 30 and December 31, respectively, each year.
8.3 The Licensor shall have the right to inspect and audit all account records of the Licensor pertaining to the sales of the Products through a chartered accountant appointed by the Licensor. The audit should take place upon prior notice and at a time convenient to Licensee, however not later than 20 days after notice. The auditor should have access to all material necessary to verify the costs, e.g. copies of advertisement campaigns. The costs for such inspection and audit shall be borne by the Licensor; however if the audit shall determine a discrepancy of more than 5 % between cash and royalty reported the costs shall be borne by the Licensee.
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Article 9. Guarantee |
문서서식포탈비즈폼
9.1 During the term of this Agreement, Licensor shall be responsible for direct damage resulting from defective Technical Information and parts furnished to Licensee by Licensor. Licensor shall in such case provide new and correct Technical Information and/or parts as soon as possible without any cost to the Licensee.
9.2 Licensor shall not be responsible for consequential damages resulting from the faulty application of Technical Information by Licensee.
9.3 With respect to all claims from third parties based on product liability, the Licensor shall only bear the cost for such claims to the extent that such claims are related to the Licensor’s parts or Licensor Technology of the Licensed Product.
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Article 10. Duration and Termination |
문서서식포탈비즈폼
10.1 This Agreement shall be effective for an initial period of 10 years from the effective date of this Agreement. After the end of this period, the Agreement shall expire without notice. The parties may agree to extend the term of this Agreement.
10.2 If either party hereto breaches an obligation or continues in default of any obligation imposed on it herein for more than 30 days after written notice has been dispatched by registered airmail by the other party requesting the party in default to remedy such default, the other party may terminate this Agreement by registered airmail to the first party and this Agreement shall terminate on the date of dispatch of such notice. In the event of bankruptcy, receivership, insolvency or assignment for the benefit of creditors of either party hereto or breach of Article 13, the other party may terminate this Agreement effective immediately by giving the first party written notice to that effect.
10.3 If the Agreement is terminated prior to the expiration of the patent or one of the patents, Licensee has no right to continue the exploitation of the still valid patents. Within six moths after the declaration of termination of this Agreement, Licensee shall however have the right to, in reasonable amounts, sell, subject to Article 6, all Licensed Products remaining in inventory at the date under the conditions agreed upon or, respectively, to finish and fulfill all agreements which have been entered into prior to the declaration of termination.
10.4 Upon termination, each party shall return all confidential information of the other party. Any accrued but unpaid royalties must be paid by Licensee to Licensor within 30 days of termination.
10.5 Upon termination of this Agreement, all Articles except Article 2 and 4 will prevail until all monetary settlements are finished. The confidentiality obligations of Article 13 shall survive the termination of this Agreement.
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11. New Intellectual Property |
문서서식포탈비즈폼
11.1 The parties shall claim all employees’ inventions fully for themselves under the statutory provisions and promptly file patent applications for such inventions, as far as they relate to the subject of this Agreement and have been made during the duration of this Agreement.
11.2 As between the parties the right in the inventions is divided as follows: New patents mainly involving Licensor’s technology shall be owned by Licensor while new patents mainly involving Licensee technology shall be owned by Licensee. For clarity, technique areas of each party is listed in Appendix B. New Intellectual Property in the common area listed in Appendix B shall be the property of the inventing party. The Licensor shall have the right to use nonexclusively such New Intellectual Property free of charge and without time limitation. This should also be valid for the Licensee’s subcontractors and other co-operating parties.
11.3 The parties shall use their best effort to allocate New Intellectual Property between themselves according to the guiding principle of 11.2. However, for patents in technology areas which this guiding principle does not specifically describe, the parties should take every other patent, with Licensee taking the first. All such patents should be licensed to the other party free of charge. In the event that a joint venture is established, all such patents should be transferred to the joint venture.
11.4 For all inventions made in conjunction with this Agreement a protocol is to be established which shows what the individual inventors have proposed.
11.5 The Parties shall promptly inform each other about patent applications, submitting copies of the patent applications as filed at the respective patent offices.
11.6 The patent applications shall be treated as confidential until their publication.
11.7 Each party shall bear the costs of the patents filed in its own name.
11.8 If one party does not want to file a patent application on an invention falling under this Agreement, or does not want to further prosecute or maintain such a patent application or an issued patent, then an otherwise free offer to take over the patent or patent application against assumption of the future patent costs and the inventor remuneration has to be made promptly to the other party.
11.9 As far as one party wants to file patent applications on inventions under this Agreement which either belong to him alone or belong to him jointly with the other party only in one or more countries, or wishes to participate only in such a limited extent, then he has to provide the other promptly with the possibility to file the respective patent applications in the remaining countries. This has to be done in good time so that the other party can file patent applications on his own in the respective countries claiming the priority for already filed applications.
11.10 The transferring party promise to perform all required acts promptly upon request by the receiving party.
11.12 The party deciding to file patent applications on its own has all the rights in such applications exclusively, with the exception for what is stated in 11.3.
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Article 12. Patent Infringement |
문서서식포탈비즈폼
12.1 Licensor and Licensee shall give each other notice of any acts of infringement by third parties involving Intellectual Property Rights, patents, trademarks etc relating to the Licensed Products anywhere in the Territory of which Licensor or Licensee has knowledge and they shall consult together in a view to determine the course of action, if any, to be taken in such circumstance.
12.2 The cost of the infringement suit arising from Licensor Technology and Technical Information and the cost for an invalidity procedure shall be borne equally by the parties. Any settlement proceeds from such litigation will be divided equally among the parties.
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Article 13. Secrecy |
문서서식포탈비즈폼
13.1 The parties mutually promise to treat as confidential both the information received from the other side, be it in written, as computer files, video tapes, or else, and the trade secrets, know-how and other knowledge developed during the operations under this Agreement .
13.2 Such knowledge and information shall serve exclusively for the party’s own use within this Agreement. The parties shall subject their employees, subcontractors and other co-operating parties to corresponding obligations; providing such information to third parties in any case requires written approval by the other party.
13.3 In the case of a violation of the obligations of this Agreement the party disclosing information has the burden of proof that specific information has been known to him before receiving it from the other party or that such information has been disclosed later with no fault on his part.
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Article 14. Taxation |
문서서식포탈비즈폼
14.1 If Licensee deducts, or if Licensor is obligated to pay, any taxes, fees, assessments, or other charges of any kind imposed by the Korean Government, any subdivision thereof, or any other governmental unit within its territory (hereinafter referred to as “Charges”), with the respect to any amount payable to Licensor under this Agreement, Licensor shall bear such Charges and Licensee takes necessary procedures on behalf of Licensor to pay such Charges to the Korean Tax Office. Provided, however, Licensee shall send tax certificates thereof to Licensor immediately.
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Article 15. Arbitration |
문서서식포탈비즈폼
15.1 Any dispute arising under or by virtue of this Agreement or any difference of opinion between the parties hereto concerning their rights and obligations under this Agreement, shall be finally resolved by arbitration. Such arbitration proceedings shall take place in respondent’s country in accordance with the applicable rules of arbitration of the International Chamber of Commerce Board, but the proceedings should take place in English language. The decision of the arbitration proceedings shall be final and binding upon both parties.
15.2 In the event of a good faith dispute about monetary obligations, Licensee will pay any undisputed amounts to Licensor. Any disputed amounts will be paid into escrow pending resolution of such dispute pursuant to Article 14, with payment from escrow thereafter to be made to the prevailing party, whereupon any such alleged breach will be deemed cured.
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Article 16. Applicable Law |
문서서식포탈비즈폼
16.1 This Agreement shall be governed by and construed and interpreted in accordance with the laws of the Republic of Korea.
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Article 17. Force Majeure |
문서서식포탈비즈폼
17.1 Neither party shall be liable to the other party for nonperformance or delay in performance of any of its obligation under this Agreement due to causes reasonably beyond its control including fire, flood, strikes, labor troubles or other industrial disturbances, unavoidable accidents, governmental regulations, riots, and insurrections. Upon the occurrence of such a force majeure condition the affected party shall immediately notify the other party with as much details as possible and shall promptly inform the other party of any further developments. Immediately after the cause is removed, the affected party shall perform such obligations with all due speed.
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Article 18. Notices |
문서서식포탈비즈폼
18.1 Any notice, approval or other communication under this Agreement shall be made by facsimile to the following facsimile addresses (or at such other facsimile address either party may specify in the aforementioned way to the other), with the exception for any notice regarding the termination of this Agreement or the grant or termination of any license hereunder, which shall be made by registered air mail.
To Licensor : Facsimile No :
To Licensee : Facsimile No :
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Article 19. Language |
문서서식포탈비즈폼
19.1 The language to be used in rendering the Technical Information disclosed and furnished to Licensee by Licensor under this Agreement shall be in English.
19.2 The language for correspondence between the parties and any documentation shall be in English.
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Article 20. Entirety |
문서서식포탈비즈폼
20.1 This instrument embodies the entire agreement and understanding between the parties hereto relative to the subject matter hereof and there are no understanding, agreement’s conditions or representations, oral or written, expressed or implied, with reference to the subject matter hereof that are not merged herein or superseded hereby.
No modification hereof shall be of any force or effect unless reduced to writing and signed by the parties claimed to be bound thereby and no modification shall be effected by the acknowledgement or acceptance of any order containing different conditions. This agreement has been duly signed in two identical copies. Each party has received one copy.
For and on behalf of Licensor For and on behalf of Licensee
By : By:
President President
Appendix A
1. Patents and patent applications owned by Licensor, licensed under this agreement
2. Patents and patent applications owned by Licensee
Appendix B
1. Licensor technique areas
2. Licensee technique areas
3. Common area
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