PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY. 10.1 Each Party shall identify to the other, and the receiving Party shall hold in confidence, any proprietary or confidential information marked as proprietary or confidential or obtained in connection with FhG's work under this Contract, any deliverables hereunder, or any proprietary or confidential information so marked furnished by one Party to the other. Subject to Customer's rights described in Article 10.2 hereof, each Party shall use the same efforts to avoid disclosure, publication or dissemination of such proprietary or confidential information as they use with respect to their own proprietary or confidential information, but in no event less than best efforts. Said information shall remain the proprietary information of the Party disclosing it and shall not be disclosed to others without the disclosing Party's prior written consent either during or after the term of the Contract. All technical data based upon proprietary or confidential information furnished by Customer that is essential to the design, function or operation of any deliverable under this Contract (including, without limitation, any patents or patent applications anywhere in the world owned by or licensed to Customer) shall be considered as the Customer's proprietary or confidential data and shall not be disclosed to others without the Customer's prior written consent either during or after the term of the Contract. Proprietary or confidential information or data shall not include information or data which becomes generally known in the industry, or is known to either Party prior to its disclosure by the other Party as demonstrated by written records, or is authorized in writing by the disclosing Party for release, or which is subject to judicial or governmental compelled disclosure. 10.2 FhG hereby grants to Customer: (a) An exclusive, paid-up, royalty-free, transferable, perpetual, and irrevocable world-wide license in and to the [*****] code or other source ***** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. or executable code for [*****] developed by FhG under this Contract and all patent applications, patents, trade secrets, mask works, copyrights and other intellectual property for work or inventions performed or developed in connection with such Code for Customer (the "Code"). Such license shall include the right of Customer to use, copy, maintain, modify, create derivative works of, transfer, sublicense or otherwise convey the Code as necessary in connection with Customer's business in Customer's sole discretion and without the consent of FhG. (b) A non-exclusive, non-transferable, paid-up, royalty-free perpetual and irrevocable worldwide license to use the test equipment developed hereunder in connection with Customer's business. (c) The Parties acknowledge that nothing in this Article 10.2 is intended to grant to Customer the rights to modify, transfer or otherwise convey any rights in the FhG Background IP (defined in Article 10.5). 10.3 FhG agrees that its ownership rights in the Code shall be limited by the following: (a) FhG shall not sell, transfer, distribute, loan, disclose, reproduce or otherwise convey the Code (in its entirety as delivered to Customer hereunder) to or for any other person or entity. FhG acknowledges that the Code comprises a material element in Customer's digital radio system and that Customer would suffer material financial and market share losses in the event the Code were to be disclosed. Accordingly, FhG agrees to maintain strict confidentiality of the Code. (b) Subject to the limitation described in Article 10.3(c) below, FhG may modify the Code for use in future projects for which FhG is commissioned by future FhG clients; provided, however, that such modifications shall be substantial enough to make the Code unrecognizable to such clients and such that such modifications will not be able to be reverse-engineered to obtain the Code. (c) Under no circumstances shall FhG modify the Code for any Customer Competitor. For purposes of this Contract, "Customer Competitor" shall mean (i) any entity involved in the business of satellite or terrestrial digital broadcasting in [*****], (ii) any individual employed by, serving as an officer or director for, or owning any equity interest in, such an entity, (iii) any entity controlling, controlled by, or under common control with such an entity, or also (iv) any entity owning any equity interest in such an entity. "Customer Competitor" shall also include the following companies, as well as any other company that Customer notifies FhG in writing shall be considered a Customer Competitor: CD Radio and any company involved with IBOC technology or having an equity interest in a license for the wireless communication system (WCS) frequency spectrum. "Customer Competitor" shall not include WorldSpace Satellite Company or any principal affiliate thereof as it operates in [*****]. For FhG and FhG customer purposes other than XM Radio Program related projects, FhG will retain all rights to reuse the following blocks and subblocks included in the [*****] design: ***** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. [*****]
Appears in 1 contract
Sources: Firm Fixed Price Contract (Xm Satellite Radio Holdings Inc)
PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY. 10.1 Each Party shall identify to the other, and the receiving Party shall hold in confidence, any proprietary or confidential information marked as proprietary or confidential or obtained in connection with FhG's work under this Contract, any deliverables hereunder, or any proprietary or confidential information so marked furnished by one Party to the other. Subject to Customer's rights described in Article 10.2 hereof, each Party shall use the same efforts to avoid disclosure, publication or dissemination of such proprietary or confidential information as they use with respect to their own proprietary or confidential information, but in no event less than best efforts. Said information shall remain the proprietary information of the Party disclosing it and shall not be disclosed to others without the disclosing Party's prior written consent either during or after the term of the Contract. All technical data based upon proprietary or confidential information furnished by Customer that is essential to the design, function or operation of any deliverable under this Contract (including, without limitation, any patents or patent applications anywhere in the world owned by or licensed to Customer) shall be considered as the Customer's proprietary or confidential data and shall not be disclosed to others without the Customer's prior written consent either during or after the term of the Contract. Proprietary or confidential information or data shall not include information or data which becomes generally known in the industry, or is known to either Party prior to its disclosure by the other Party as demonstrated by written records, or is authorized in writing by the disclosing Party for release, or which is subject to judicial or governmental compelled disclosure.
10.2 FhG hereby grants to Customer:
(a) An exclusive, paid-up, royalty-free, transferable, perpetual, and irrevocable world-wide license in and to the [*****] code or other source ***** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. or executable code for [*****] developed by FhG under this Contract and all patent applications, patents, trade secrets, mask works, copyrights and other intellectual property for work or inventions performed or developed in connection with such Code for Customer (the "Code"). Such license shall include the right of Customer to use, copy, maintain, modify, create derivative works of, transfer, sublicense or otherwise convey the Code as necessary in connection with Customer's business in Customer's sole discretion and without the consent of FhG.
(b) A non-exclusive, non-transferable, paid-up, royalty-free perpetual and irrevocable worldwide license to use the test equipment developed hereunder in connection with Customer's business.
(c) The Parties acknowledge that nothing in this Article 10.2 is intended to grant to Customer the rights to modify, transfer or otherwise convey any rights in the FhG Background IP (defined in Article 10.5).
10.3 FhG agrees that its ownership rights in the Code shall be limited by the following:
(a) FhG shall not sell, transfer, distribute, loan, disclose, reproduce or otherwise convey the Code (in its entirety as delivered to Customer hereunder) to or for any other person or entity. FhG acknowledges that the Code comprises a material element in Customer's digital radio system and that Customer would suffer material financial and market share losses in the event the Code were to be disclosed. Accordingly, FhG agrees to maintain strict confidentiality of the Code.
(b) Subject to the limitation described in Article 10.3(c) below, FhG may modify the Code for use in future projects for which FhG is commissioned by future FhG clients; provided, however, that such modifications shall be substantial enough to make the Code unrecognizable to such clients and such that such modifications will not be able to be reverse-engineered to obtain the Code.
(c) Under no circumstances shall FhG modify the Code for any Customer Competitor. For purposes of this Contract, "Customer Competitor" shall mean (i) any entity involved in the business of satellite or terrestrial digital broadcasting in [*****], (ii) any individual employed by, serving as an officer or director for, or owning any equity interest in, such an entity, (iii) any entity controlling, controlled by, or under common control with such an entity, or also (iv) any entity owning any equity interest in such an entity. "Customer Competitor" shall also include the following companies, as well as any other company that Customer notifies FhG in writing shall be considered a Customer Competitor: CD Radio and any company involved with IBOC technology or having an equity interest in a license for the wireless communication system (WCS) frequency spectrum. "Customer Competitor" shall not include WorldSpace Satellite Company or any principal affiliate thereof as it operates in [*****]. For FhG and FhG customer purposes other than XM Radio Program related projects, FhG will retain all rights to reuse the following blocks and subblocks included in the [*****] design: ***** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. [*****].
Appears in 1 contract
Sources: Firm Fixed Price Contract (Xm Satellite Radio Holdings Inc)