Pursuant to
17 CFR 240.24b-2, confidential information (indicated by [***]) has
been omitted and has been filed separately with the Securities and
Exchange Commission pursuant to a Confidential Treatment
Application filed with the Commission.
PATENT
LICENSE AND SETTLEMENT AGREEMENT
THIS PATENT
LICENSE AND SETTLEMENT AGREEMENT (the
“Agreement”), is entered into as of November 24,
2008 (the “Effective Date”), by and among Samsung
Electronics Co., Ltd., a corporation duly organized and existing
under the laws of the Republic of Korea and having its principal
office at 416 Maetan-3dong, Yeongtong-gu Suwon-si, Gyeonggi-do,
443-742, Korea (“Samsung”), and InterDigital Technology
Corporation, Tantivy Communications, Inc., IPR Licensing, Inc., and
InterDigital Patent Holdings, Inc., each Delaware corporations
having a mailing address of Suite 105 Hagley Building, 3411
Silverside Road, Concord Plaza, Wilmington, Delaware 19810
(individually and together, “ITC”), and InterDigital
Communications, LLC f/k/a InterDigital Communications Corporation,
a limited liability company duly organized and existing under the
laws of the Commonwealth of Pennsylvania and having its principal
office at 781 Third Avenue, King of Prussia, PA, USA 19406
(“IDC”) (IDC and ITC are referred to herein
individually and collectively as “InterDigital”). SEC,
ITC, and IDC are herein individually referenced as
“Party” and collectively as “Parties.” In
relation to SEC, “other Party” refers to ITC and/or
IDC, as context requires; in relation to ITC and IDC, “other
Party” refers to SEC.
WHEREAS , Samsung and ITC are parties to that certain
Binding Terms and Conditions for 2G/3G Settlement and Patent
License (“Term Sheet”) entered into on
November 24, 2008 relating to the resolution and settlement of
the Lawsuits and the grant by ITC of a patent license to Samsung,
among other things, on the terms and conditions set forth
herein.
WHEREAS , Samsung and ITC desire to enter into this
Agreement in place of the Term Sheet.
NOW, THEREFORE , in consideration of the mutual covenants
and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the Parties
hereby agree as follows:
a. 2G License Grant : Without limitation, subject to
Sections 6 and 7, effective and conditioned on timely receipt
by ITC of the first installment of the License Fee, and continuing
thereafter conditioned on receipt of the subsequent installments of
the License Fee, ITC grants Samsung and its Affiliates a
non-exclusive, non-transferable, worldwide license under the
Licensed Patents for the life of such patents to develop, design,
make, have made, use, import, offer to sell, sell, and otherwise
distribute 2G Licensed Products. Upon receipt by ITC of all
installments of the License Fee, all rights granted pursuant to
this Section 1(a) shall be deemed paid up and irrevocable. The
license does not extend to Components sold separately.
b. 3G License Grant : Without limitation, subject to
Sections 6 and 7, effective and conditioned on timely receipt
by ITC of the first installment of the License Fee, and continuing
thereafter conditioned on receipt of the subsequent installments of
the License Fee, ITC grants Samsung and its Affiliates a
non-exclusive, non-transferable, worldwide, royalty-bearing license
under the Licensed Patents to develop, design, make, have made,
use, import, offer to sell, sell, and otherwise distribute 3G
Licensed Products during the 3G Term. The license does not extend
to Components sold separately.
c.
[***]: Without limitation, subject to Sections 6 and 7,
and without limiting Section 4(c), [***] a 2G Licensed Standard or
a 3G Licensed Standard. Except as specifically set forth in this
Section and in Section [***], nothing shall be deemed as
conferring, by implication, estoppel, or otherwise, any license,
right [***], express or implied, under any patent or intellectual
property right to develop, design, make, have made, use, import,
offer to sell, sell, or otherwise distribute products
[***].
d. Notwithstanding
anything to the contrary, the licenses granted under Sections 1(a)
and 1(b) exclude any license, express or implied, to develop,
design, make, have made, use, import, sell, and otherwise
distribute Components, except to the extent that such Components
(i) are made by or have made for Samsung solely for use within
the 2G Licensed Products or the 3G Licensed Products sold by
Samsung and its Affiliates, or (ii) are sold on an
non-integrated basis together with a 2G Licensed Product or 3G
Licensed Product for integration by the operator (e.g., a SIM card
sold in the box with a handset), or (iii) [***] (a) [***], and (b)
[***].
a.
License Fee : Samsung shall pay ITC a non-refundable,
irrevocable License Fee of US $400 Million. Payment shall be made
according to the following schedule:
US $100M on
or before [***], 2009
US $100M on or before [***]
US $100M on or before [***]
US $100M on or before [***], 2010
SEC shall
pay ITC the License Fee less the Tax Withheld by wire transfer
to:
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[***]
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PNC
Bank
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300 Delaware
Avenue
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Wilmington, DE
19801
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[***]
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[***]
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,or
pursuant to such other wire transfer instructions as may later be
provided by InterDigital to SEC.
A form
invoice, acceptable to both Parties, is attached as Exhibit
“A” hereto.
b. Taxes: Samsung shall (i) [***] on account of
withholding taxes that are required by Korean domestic law and
pursuant to the [***] by Samsung (hereinafter “Tax
Withheld”), (ii) promptly and timely pay to the
appropriate Korean tax authorities all of such taxes that are
required to be withheld and paid, and (iii) provide
InterDigital, within a reasonable period thereafter, with all
necessary documentation evidencing payment of such taxes. In case
the Tax Withheld is later determined by the [***], the Parties
agree that ITC and/or IDC, as applicable, [***] upon submission of
documentation evidencing the same. In the event the Tax Withheld is
later determined by the [***] as being greater than required, the
Parties shall cooperate with each other to ensure that [***].
Provided the relevant government requires any such tax, SEC shall
furnish InterDigital with appropriate documentation evidencing the
payment of such tax as assessed by the appropriate authority of
such government and such other documentation as reasonably
requested by or responsive to the [***].
2
c. Finality: The Parties further acknowledge that the
License Fee is final, irrevocable, non-refundable, and not subject
to any deductions, adjustments, set-offs, offsets, discounts,
credits, or withholdings (other than tax withholding to the extent
expressly provided above) for any reason.
3.
Termination and Remedies.
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a.
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Notwithstanding anything to the
contrary herein, in the event that Samsung breaches any of the
payment obligations under this Agreement, and fails to cure such
breach within [***] days (or with respect to the first installment
of the License Fee, within [***] days) following written notice
thereof from ITC, then ITC shall have the right, at its election
either:
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i.
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to
enforce the terms and conditions of this Agreement, and pursue all
remedies available at law or equity, in which case (i) all
remaining payments under this Agreement shall become immediately
due and payable in full, (ii) all rights and duties of the
Parties under this Agreement shall remain in effect, (iii) all
unpaid amounts shall accrue interest at a rate equal to [***], and
(iv) Samsung shall reimburse ITC for any and all costs
incurred by ITC (including reasonable attorneys’ fees) in
order to collect such amounts due; alternatively
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ii.
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to
terminate this Agreement, and pursue all remedies available at law
or equity. In the event this Agreement is terminated prior to
ITC’s receipt of the first installment of the License Fee,
(i) all licenses, rights [***] granted to Samsung and its
Affiliates [***] and the Releases set forth in Sections 9(a) and
(b) hereunder shall not take effect and shall be null and void,
(ii) the Parties may thereafter proceed in the Lawsuits, and
(iii) Samsung will not oppose any request by InterDigital to
lift the stays in the Lawsuits, and will proceed according to any
new schedule set in the Lawsuits. In the event this Agreement is
terminated following receipt by ITC of the first installment of the
License Fee, all licenses, rights [***] granted to Samsung and its
Affiliates [***] and the Releases set forth in Sections 9(a) and
(b) hereunder shall immediately terminate, be null and void
and shall have no further force or effect from and after the date
of such notice, provided that in such event Samsung shall be
entitled to [***] to InterDigital or its Affiliates.
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b.
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In
addition, either Party may terminate this Agreement prior to the
expiration of the 3G Term, upon [***] days prior written notice to
the other Party, if the other Party is in breach of any of its
material obligations other than those addressed in Section 3(a)
above and the breach is not cured within the [***] days after
notice is received by the other Party. Such “other material
obligations” shall be deemed to be any material failure to
comply with [***] obligations. In the event of a termination of
this Agreement by InterDigital under this Section 3(b),
Samsung shall, without limiting any other right or remedy of
InterDigital at law or in equity, immediately pay ITC all unpaid ,
installments of the License Fee and any other amounts accruing
hereunder (in each case, whether or not then due), and all rights,
licenses [***] granted to Samsung and its Affiliates [***]
hereunder shall terminate unless (i) within [***] after the
notice of such termination is received by Samsung, [***], (ii)
[***] InterDigital and its Related Parties and their past and
present officers, directors, shareholders, employees, and agents
and their respective direct and indirect [***], and
(iii) within [***] after the notice of such termination is
received by Samsung, [***]. Further, any termination or expiration
of this Agreement shall not prejudice InterDigital’s right to
conduct a final audit under Section 23 herein. In the event of
a termination of this Agreement by Samsung under this
Section 3(b), [***] granted to InterDigital and its Related
Parties hereunder shall terminate unless (i) [***] Samsung and its
Affiliates and
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their past and present officers,
directors, shareholders, employees, and agents [***], and
(ii) within [***] after the notice of such termination is
received by InterDigital, [***].
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c.
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Notwithstanding anything to the
contrary, either Party’s enforcement of the terms and
conditions of this Agreement, or ITC’s pursuit of all
remedies available at law or equity pursuant to
Section 3(a)(i) above, shall not constitute a breach of
Sections 9 ([***]) or 10 ([***]).
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a.
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2G [***] Products:
Without limitation,
subject to Sections 4(e), 6 and 7, effective and conditioned
on timely receipt by ITC of the first installment of the License
Fee, and continuing thereafter conditioned on receipt of the
subsequent installments of the License Fee, InterDigital and its
Affiliates [***] (i) [***], and (ii) [***] (a) [***], or (b) [***];
provided and subject to, however, that Samsung and its Affiliates
[***] (A) [***] or (B) [***]: (1) [***]; or (2) [***]. [***] to
Samsung, its Affiliates or any third party, whether by contract, by
law, [***] or otherwise, [***].
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b.
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3G [***] Products:
Without limitation,
subject to Sections 4(e), 6 and 7, effective and conditioned
on timely receipt by ITC of the first installment of the License
Fee, and continuing thereafter conditioned on receipt of the
subsequent installments of the License Fee, InterDigital and its
Affiliates [***] (i) [***], and (ii) [***] (a) [***], or (b) [***];
provided and subject to, however, that Samsung and its Affiliates
[***]: (A) [***]; or (B) [***]. [***] to Samsung, its Affiliates or
any third party, whether by contract, by law, [***] or otherwise,
[***].
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c.
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[***] . Without limitation, subject to
Sections 4(e), 6 and 7, effective and conditioned on timely
receipt by ITC of the first installment of the License Fee, and
continuing thereafter conditioned on receipt of the subsequent
installments of the License Fee, InterDigital and its Affiliates
[***]. [***] to Samsung, its Affiliates or any third party, whether
by contract, by law, [***] or otherwise, [***].
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d.
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[***] of InterDigital
: Without limitation,
subject to Sections 4(e), 6 and 7, Samsung and its Affiliates
[***]. With respect to [***] InterDigital and its Related Parties
and [***], whether by [***] or otherwise. With respect to [***],
the foregoing [***] Samsung and its Affiliates shall
[***].
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e.
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Conditions to [***]
Without limiting
Section 11, nothing in this Section (nor any payments made
hereunder) shall be construed as (i) exhausting a
Party’s rights to claim infringement or receive royalties or
damages or other compensation with respect to any patent or product
[***], (ii) creating or granting any express or implied
license of any kind, or (iii) giving rise to [***] or any
waiver or limitation of any kind with respect to actions against
third parties, except as expressly set forth in [***]. The Parties
hereby expressly waive the right to make any claim contrary to the
foregoing. For clarity, the obligations of each Party [***], it
being understood that (1) the foregoing does not limit or
modify the terms of Section 4(a) and 4(b) addressing the rights of
InterDigital [***], and (2) [***].
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5. Excluded
Products: Without
limiting anything in [***], no licenses, [***], releases, or other
authorizations (except as expressly set forth herein) are granted
to any portion of any product that complies with an Excluded
Standard.
4
6.
Additional Limitations: Notwithstanding
anything to the contrary, this Agreement (a) excludes the
right to grant sublicenses, (b) shall not cover any products
that Samsung or its Affiliates Acquire from or which are
attributable to an Acquisition with one or more third parties [***]
Terminal Units designed to operate in accordance with 2G Licensed
Standards or 3G Licensed Standards (as the case may be) [***]
Samsung and its Affiliates, and (c) shall not cover any
products that InterDigital or its Related Parties Acquire from or
which are attributable to an Acquisition with one or more third
parties [***] Terminal Units, Wireless Modules, or Components
designed to operate in accordance with 2G Licensed Standards or 3G
Licensed Standards (as the case may be) [***] InterDigital and its
Related Parties.
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a.
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All
licenses and [***] granted hereunder shall survive the assignment
or transfer (whether by merger, sale or otherwise) of any of the
Licensed Patents or Samsung [***] Patents (as the case may
be).
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b.
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Neither Party shall assign this
Agreement or any rights or obligations hereunder. Notwithstanding
the foregoing:
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i.
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Samsung may assign all of its and
Affiliates’ rights and obligations under this Agreement
(other than the [***] obligations and the releases hereunder) to
any successor in interest to Samsung’s entire
telecommunications business (whether by merger, asset sale or
otherwise), provided that (i) either (A) Samsung
makes payment in full of the remaining unpaid (whether or not then
due) portion of the License Fee prior to such assignment, or
(B) if any portion (whether or not then due) of the License
Fee remains outstanding at the time of such assignment, Samsung
shall remain liable to ITC for the timely payment of such
outstanding portion of the License Fee by such successor, and
(ii) the ultimate parent company of the successor agrees in
writing to assume this Agreement and be bound hereby as if it were
“Samsung” hereunder (including, without limitation, for
purposes of the [***] granted by Samsung pursuant to Section 4(d)
hereof), provided that , the licenses, [***] and other
rights granted under this Agreement (including, without limitation,
the obligations of InterDigital under Section 9(e) hereunder) to
Samsung and its Affiliates shall be limited on a going-forward
basis to sales of 2G Licensed Products and 3G Licensed Products in
an amount not to exceed [***]. For example, [***] ([***] affiliates
being defined comparatively to the successor as the definition of
Affiliate is defined herein as to the Parties) sales of 2G
Settlement Products and 3G Licensed Products would [***].
Notwithstanding, if the successor is already a party to a patent
license with InterDigital, the successor’s existing agreement
shall continue to apply to any products not constituting 2G
Licensed Products and 3G Licensed Products in this Agreement,
including without limitation the proportion not deemed covered by
this Agreement described in this Section 7(b)(i)
above.
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ii.
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[***], InterDigital may assign its
rights and obligations under this Agreement in whole or in part to
any InterDigital Related Party. InterDigital or any of its Related
Parties may also assign all of its rights and obligations under
this Agreement (other than the [***] obligations and the releases
hereunder) to any successor in interest to InterDigital or such
Related Party (whether by merger, asset sale or otherwise),
provided that , (A) such successor shall assume all
obligations of InterDigital hereunder and all rights, [***], and
licenses granted by InterDigital to Samsung shall
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survive and remain in full force and
effect, and (B) the [***] and other rights granted hereunder
to InterDigital or such Related Parties shall be limited on a
going-forward basis to sales of products subject to the [***] set
forth in Section 4(d) in an amount not to [***]. For example,
[***].
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iii.
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In
the event of any assignment covered by this Section 7, the
assigning Party will provide notice to the other Party within a
reasonable time following the assignment.
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iv.
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Notwithstanding anything to the
contrary in this Section 7, the assignment of this Agreement
in accordance with this Section 7 shall not convey a release
to the assignee under Sections 9(a) through 9(d), which releases
shall be personal to the Parties explicitly named in such releases
as of the Effective Date.
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a. Termination of USITC Action . Upon receipt by ITC
of the first installment of the License Fee, the Parties shall as
soon as practicable cause their respective counsel to execute and
file with the USITC a joint motion and proposed order, in the form
attached as Exhibit “B” hereto, seeking to
(1) terminate the USITC Action on the basis of settlement
pursuant to 19 C.F.R. § 210.21(b); (2) take all other
reasonable actions to terminate and stay such proceedings and
orders; and (3) further extend the date for the Final Initial
Determination, if necessary, to ensure that a Final Initial
Determination does not issue.
b. Termination of InterDigital Delaware Action .
Within seven (7) days of receipt by ITC of the first
installment of the License Fee, the Parties shall cause their
respective counsel to execute and file with the Court a joint
stipulation, in the form attached as Exhibit “C”
hereto, dismissing without prejudice the InterDigital Delaware
Action, and take all other reasonable actions necessary to dismiss
such proceeding.
c. Termination of Samsung Delaware Action . Within
seven (7) days of receipt by ITC of the first installment of
the License Fee, the Parties shall cause their respective counsel
to execute and file with the Court a joint stipulation, in the form
attached as Exhibit “D” hereto, dismissing with
prejudice Samsung’s claims in the Samsung Delaware Action
based on conduct occurring before the date of dismissal of the
Samsung Delaware Action, dismissing without prejudice
InterDigital’s counterclaims, and take all other reasonable
actions necessary to dismiss such proceeding.
d. Termination of 2G Arbitrations and Litigation.
Within seven (7) days of the receipt by InterDigital of the
first installment of the License Fee, the Parties shall jointly
through their respective counsel move to dismiss with prejudice and
finally resolve, or jointly request administrative closure of, if
applicable, the Samsung II Enforcement Action, the Samsung II
Appeal, and the Samsung III Arbitration with each Party bearing its
own costs and fees. Further, within three (3) business days
after the receipt by InterDigital of the first installment of the
License Fee, InterDigital shall execute those commercially
reasonable documents — that are necessary to effect the
release of any and all rights InterDigital may have under that bond
— including both (i) a commercially reasonable release
drafted by the surety for the bond filed in InterDigital
Communications, LLC v. Samsung Electronics Co., Ltd., No. 06
Civ. 6833 (RJS) in the Southern District of New York (Appeal
Bond No. CGB8796870), in the Form attached as Exhibit
“E” hereto and, (ii) a satisfaction of judgment to
be filed in the Samsung II Enforcement Action in the form attached
as Exhibit “F” hereto.
6
a. Release by InterDigital . Provided InterDigital
does not terminate this Agreement based on nonpayment of the first
installment of the License Fee, contingent upon the actual and
timely payment of the remaining installments of the License Fee,
and effective upon receipt by ITC of the first installment of the
License Fee, InterDigital and its Affiliates hereby fully, finally
and forever acquit, release and discharge Samsung, its Affiliates,
and their past and present officers, directors, shareholders,
employees, and agents from any and all claims, losses, and
liabilities that InterDigital, its Affiliates, and their past and
present officers, directors, shareholders, employees, and agents
ever had, now have, or hereafter can, shall or may have, for, upon,
or by reason of acts or omissions existing prior to the Effective
Date of this Agreement arising out of or relating to the
[***].
b. Release by InterDigital [***] . Provided
InterDigital does not terminate this Agreement based on nonpayment
of the first installment of the License Fee, contingent upon the
actual and timely payment of the remaining installments of the
License Fee, and effective upon receipt by ITC of the first
installment of the License Fee, InterDigital and its Affiliates
hereby fully, finally and forever acquit, release and discharge
Samsung and its Affiliates, and their past and present officers,
directors, shareholders, [***], employees, and agents from any and
all claims, losses, and liabilities that InterDigital, its
Affiliates, and their past and present officers, directors,
shareholders, employees, [***], and agents ever had, now have, or
hereafter can, shall or may have, for, upon, or by reason of [***]
(i) [***], and (ii) [***] (a) [***], or (b) [***].
c.
Limitations on InterDigital’s Releases.
Notwithstanding anything to the contrary, the releases described in
Sections (a) and (b) above (i) do not include a
release with respect to subject matter other than that set forth in
Sections (a) and (b) above, (ii) do not extend, by
implication or otherwise, to any third party, or to any third party
product even when used in combination with products sold by Samsung
or any of its Affiliates, [***], and (iii) do not extend to
any act by which Samsung or its Affiliates or any of their
respective attorneys or agents granted a sublicense under any
Licensed Patent to any person or purported to do so.
d. Release by Samsung . Provided InterDigital does
not terminate this Agreement for lack of timely receipt by ITC of
the first installment of the License Fee, and effective January 31,
2009, Samsung and its Affiliates hereby fully, finally and forever
acquit, release and discharge InterDigital and its Related Parties,
and their past and present officers, directors, shareholders,
employees, and agents from any and all claims, losses, and
liabilities that Samsung, its Affiliates, and their past and
present officers, directors, shareholders, employees, and agents
ever had, now have, or hereafter can, shall or may have, for, upon,
or by reason of acts or omissions existing prior to the Effective
Date of this Agreement arising out of or relating to the
[***].
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i.
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For
a period commencing as of the Effective Date and continuing up to
and including the end of the 3G Term (hereafter the
“[***]”), InterDigital and Samsung each covenants and
agrees, on behalf of itself and its respective Related Parties, not
to [***] with respect to any product of the other Party or its
Related Parties, in each case, to the extent such [***] under this
Agreement. Notwithstanding anything in this paragraph, in the event
that a Party or its Related Parties [***] the other Party or its
Related Parties, the obligation of the such other Party and its
Related Parties under this Section 9(e) shall unconditionally
terminate and have no further force or effect, unless and until
(A) within [***] after the notice of such breach is received
by such Party, such Party [***], and (B) such Party [***], in
which case the obligations of the other Party (and its Related
Parties) that was subject to such claim or action shall be
reinstated.
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ii.
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The
[***] for any claims or causes of action that a Party or its
Related Parties covered by [***] in Section 9(e)(i) above
shall be, and hereby are, [***]. After the end of [***], the
Parties or their Related Parties shall have such [***], as is
available as of the Effective Date, under all applicable [***].
Each Party agrees that the [***] of this Agreement shall be
excluded from the [***]. The Parties and their Related Parties
expressly reserve the right to seek and collect damages, including
but not limited to royalties, for patent infringement by the other
Party or its Related Parties arising [***], to the fullest extent
permitted under law, subject to the [***], rights, licenses and
releases granted under this Agreement.
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iii.
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The
right and obligations of the parties under this Section 9 are
personal and may not be assigned or transferred to any third party.
Nothing in this provision shall constitute or be deemed to
constitute the grant of any express or implied rights of any kind
under any intellectual property or proprietary right. Nothing in
this provision shall prevent either Party or its Related Parties
from seeking [***].
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a.
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Except for the [***] as provided in
the last sentence of Section 9(e)(i), Samsung and its Affiliates
shall not directly or indirectly institute or participate as an
adverse party, or procure or voluntarily assist any other party to
directly or indirectly institute or participate as an adverse
party, in any action (legal, administrative, regulatory or
otherwise), prior to the expiration of the 3G Term (except with
respect to subsection (a)(i) below, which shall extend for the life
of the relevant patents), anywhere in the world that (a) [***] (i)
[***], or (ii) [***], (b) [***]; (c) [***]; or (d) [***]. The
foregoing obligations shall not [***] or its Affiliates.
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b.
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Except for the [***] as provided in
the last sentence of Section 9(e)(i), InterDigital and its
Affiliates shall not directly or indirectly institute or
participate as an adverse party, or procure or voluntarily assist
any other party to directly or indirectly institute or participate
as an adverse party, in any action (legal, administrative,
regulatory or otherwise), prior to the expiration of the 3G Term
(except with respect to subsection (a)(i) below, which shall extend
for the life of the relevant patents), anywhere in the world that
(a) [***], (b) [***]; (c) [***]; or (d) [***]. The foregoing
obligations shall not [***] or its Affiliates.
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c.
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Notwithstanding anything in this
Section 10, in the event that a Party or its Related Parties
takes any action against the other Party or its Related Parties in
violation of Section 9(e) or this Section 10, the obligation
of the such other Party and its Related Parties under this
Section 10 shall unconditionally terminate and have no further
force or effect, subject to the same cure and withdrawal rights
relating to the [***] obligations as set forth in
Section 9(e).
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11. No
Further Rights. Nothing in
this Agreement shall be construed as:
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a.
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conferring (by implication,
estoppel, exhaustion or otherwise) any license, [***] or other
right to use the Samsung [***] Patents or the Licensed Patents
(including without limitation any [***]) except under the licenses,
[***] and rights specifically and expressly granted hereunder,
or
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b.
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conferring a right to use or sell
any product that is expressly licensed for sale hereunder (or
entitled to [***] hereunder) in a manne
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