Nautilus 2003 Annual Report Download - page 71

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2.2 Licensee’s Warranties and Representations. Licensee represents and warrants that it has the requisite authority, ability and resources to
enter into this Agreement and to perform all of the contemplated obligations enumerated therein. Entering into this Agreement will not
cause Licensee to be in breach or default of any other agreement and the product to be manufactured and sold under the Agreement will
be manufactured of good workmanship and of a reasonable quality to enable the product to be used for its intended purpose.
2.3
Limitation Warranty. Except as expressly set forth in this Agreement, Licensor makes no other representations or warranties, expressed or
implied, and Licensor makes no representations or warranties of merchantability or fitness for a particular purpose.
2.4 Limitation of Damages. Except for the indemnity provided in Section 2.5 in this Agreement, in no event shall Licensor be liable for any
damages or losses, whether direct, incidental or consequential or otherwise, arising out of any claim or allegation or damage sustained by
Licensee or a third party, that arises from or relates to Licensee
’
s use of the Patents or the use of the Mark under this Agreement.
2.5 Indemnity. Licensor, subject to the limitation below, shall indemnify, hold harmless, and defend Licensee, and its officers, agents, and
employees, against any and all claims, expense, judgments, liabilities, damages or losses, including reasonable attorney fees, court costs,
and any settlements, whether direct or consequential or otherwise, arising out of any claim or allegation that the Licensed Goods, solely
with respect to licensed rights hereunder, infringe or misappropriates any patent, copyright, trademark, trade secret, mask work, intention,
intellectual property right, or other proprietary right of any third party, including any claims of Trace O. Gordon associated with any
claims he may have concerning his status as co-inventor under Patent 5,336,146, and Licensee shall cooperate with Licensor, at
Licensor’s expense, in the defense or settlement of any such claim. In the event Licensor does not defend Licensee, Licensee shall have
the right to defend itself and its officers, agents, and employees against any such charge of infringement, misappropriation of trade secrets
or violation of any proprietary rights, and to deduct the cost of doing so from the royalties as they come due under Article 3.1 of this
Agreement. Licensor’s liabilities under this paragraph shall be limited to royalties as they come due after Licensor has received written
notice of such claim.
2.6 Proprietary Rights of Licensor. Ownership of subsequent developments, improvements, or inventions which are patented shall be jointly
owned by Licensor and Licensee when such developments, improvements, or inventions are derived by Licensee from claims allowed in
the Patents and may be used without the requirement for the payment of any additional royalties by Licensee other than those specified in
4.2 (A) of this Agreement. Otherwise, Licensor shall have sole and exclusive ownership of all right, title and interest in and to the Patent
and to all modifications and enhancements thereof made by Licensor subject only to the rights of Licensee under this License. Any
foreign patents developed by Licensor during the term of this Agreement shall be licensed to Licensee on the terms and conditions of this
Agreement without the requirement for the payment of any additional royalties by Licensee.
3.
ASSIGNMENT OF PATENT
3.1 Licensor agrees to assign patents covered by this Agreement to Licensee upon request of Licensee as long as Licensee is not in default
under this Agreement, and so long as Licensee has paid Licensor at least a total of $100,000 in royalties during the most recent four
calendar quarters cumulative. Licensor further agrees to assign all improvements to Licensee and to reasonably cooperate with Licensee
in prosecuting patent applications, both U.S. and foreign, covering the patented technology and/or any improvements, modifications,
enhancements or adaptations made to the patent technology or products covered under this Agreement by Licensee, provided that
Licensee shall pay all expenses (including legal fees and expenses) of the Licensor in connection therewith. Licensee shall be obligated to
pay all ongoing maintenance fees for existing patents previously obtained by Licensor.