LICENSE AGREEMENT

i.

 

is or becomes available to the public without breach of this License Agreement;

ii.

 

is known to the receiving party at the time of the disclosure;

iii.

 

is disclosed by a third party, who, to the reasonable knowledge of the receiving party, is without any restrictions on confidentiality;

iv.

 

is independently developed by the receiving party;

v.

 

becomes known to the receiving party from a source other than the disclosing party without breach of this License Agreement; or

vi.

 

is required by law.

1.

 

Experience.    ATC has unique experience in single ended planar magnetic transducer technology.

2.

 

Engagement.    Harman engages ATC, and ATC accepts such engagement, to aid, assist and otherwise act as a consultant to Harman in the further development of single ended planar magnetic transducer technology. ATC shall furnish Harman with the full benefit of its knowledge, skill and experience as to all questions and problems that Harman may present to ATC and shall answer, advise, opine and suggest to such questions and problems to the best of its ability. Harman shall from time to time assign to ATC agreed upon specific tasks in planar magnetic transducer technology. ATC shall investigate and experiment as requested or as they shall deem necessary in order to accomplish such tasks. The completion of those tasks pursuant to the agreed upon performance criteria, rather than the amount of hours spent by ATC in providing services to the Harman, shall determine whether ATC is performing adequately under this Agreement. ATC shall submit a written report on the first of each month summarizing the previous month’s activities, hours worked, and progress on the assigned projects. As to the consulting, ATC shall report to and take instructions from [***] until otherwise notified by Harman.

3.

 

Term.    The term of this Agreement shall commence on the Engineering Services Agreement Effective Date and shall, subject to earlier termination, continue until December 31, 2003 Harman may immediately terminate this Agreement at any time for breach by ATC of any term in this Agreement. Either Party may terminate this Agreement for any reason or for no reason, in each Party’s sole discretion, upon at least thirty (30) days prior written notice to the other Party. Neither Party shall have any obligation to the other following termination of this Engineering Services Agreement.

4.

 

Compensation.    Harman shall pay ATC ten thousand U.S. dollars ($10,000.00) per month within ten (10) days of receiving the monthly statement referred to in Section 2; provided that no payment shall be due prior to the tenth day of the month following the month that engineering services were rendered. Such compensation shall be full consideration for ATC’s services under this Engineering Services Agreement regardless of any additional time that may be devoted by ATC.

5.

 

Expense Reimbursement.    ATC shall be entitled to reimbursement by Harman for any ordinary and necessary expenses incurred by ATC in the performance of ATC’s duties upon submission to Harman of an expense report in accordance with Harman policies and procedures, and providing that receipts and records as necessary to substantiate such expenses.

6.

 

Place of Performance.    Harman shall make available to ATC access to its facilities as are reasonably required by ATC in the performance of their services under this Engineering Services Agreement. If the Parties agree that ATC should perform their services elsewhere, Harman shall not be responsible for rent or other charges in connection with those facilities.

7.

 

Warranties.    ATC REPRESENTS AND WARRANTS THAT (A) THEIR REPRESENTATIVES ARE FREE TO RENDER CONSULTING SERVICES TO HARMAN, (B) SUCH SERVICES DO NOT CONFLICT WITH ANY PRIOR OR PRESENT COMMITMENT OR OBLIGATION OF ATC, AND (C) ATC’S REPRESENTATIVES WILL NOT, AT ANY TIME, USE FOR HARMAN’S BENEFIT OR DISCLOSE TO HARMAN ANY INFORMATION THEY HAVE RECEIVED FROM THIRD PARTIES AND THAT THEY ARE STILL LAWFULLY OBLIGATED TO KEEP CONFIDENTIAL.

8.

 

Confidentiality.    ATC may be given access to certain confidential and proprietary information, including trade secrets, of Harman, including those of subsidiaries and/or affiliates of the Harman. For purposes of this Engineering Services Agreement, the words “Confidential” shall have the definition detailed in Article 11 of the License Agreement.

9.

 

Independent Contractor.    ATC shall render services under this Engineering Services Agreement as an independent contractor. ATC representatives shall, at all times, act and perform as an independent contractor and not as agents or employees of Harman. Nothing in this Agreement shall be deemed to create an employee-employer or agent-principal relationship between ATC, including representatives of ATC and Harman, nor to authorize ATC or its representatives to act as an agent or legal representative for Harman. ATC acknowledges that its representatives are not authorized to act as Harman legal representative or otherwise. ATC further acknowledges that its representatives will not be entitled to participate as an employee in or under any employee benefit plan of Harman, nor to receive any other employment rights or benefits available to or enjoyed by employees of the Harman.

10.

 

Assignment.    This Agreement requires the performance of personal services by ATC and its representatives. ATC shall not assign any right, delegate any duty or otherwise transfer any interest hereunder without Harman’s prior written approval, and any attempted such assignment, delegation or transfer without such consent shall be null and void.

11.

 

Notices.    All notices and other communications required or permitted to be given under this Engineering Services Agreement, if in written form, will be deemed given five business days after deposit by first class U.S. mail, postage prepaid and addressed to the other Party at their respective addresses set forth in the License Agreement.

12.

 

Entire Agreement.    This Agreement contains the entire agreement between the Parties and all prior and collateral representations or promises are merged into this Engineering Services Agreement. No modification, waiver or termination of any provision, nor any future representation, promise or condition in connection with the subject matter of this Engineering Services Agreement shall be binding upon the Parties unless made in writing, signed by an authorized representative of ATC and an authorized representative of Harman.

13.

 

Waiver.    No waiver by either Party of any breach of any covenant or provision of this Engineering Services Agreement shall be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant or provision.

14.

 

Law.    This Agreement shall be construed in accordance with Section 14.3 of the License Agreement.