Legal Counter PDM Agreement

LEGAL COUNTER PDM AGREEMENT

This Legal Counter PDM Agreement (the "Agreement") is made and entered into as of Effective Date: by and between Party A: , an entity organized as under the laws of with its principal place of business at ; and Party B: , an entity organized as under the laws of with its principal place of business at .

RECITALS

WHEREAS, the parties previously negotiated a Product Development and Manufacturing agreement dated (the "Prior PDM Agreement"); and

WHEREAS, Party B submitted proposed revisions to the Prior PDM Agreement and Party A has provided a written counterproposal on ; and

WHEREAS, the parties wish to record their agreed modifications and conditions to the Prior PDM Agreement in the form of this Counter PDM Agreement, subject to the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties agree as follows:

1. DEFINITIONS

1.1 "Confidential Information" means all non-public information disclosed by one party to the other in connection with the Prior PDM Agreement or this Agreement, whether oral, written or electronic, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

1.2 "Deliverables" means the materials, prototypes, documentation and any related work product described in Schedule A attached hereto and incorporated by reference.

2. SCOPE OF COUNTER TERMS

2.1 The parties hereby agree that the terms and conditions set forth in this Agreement supersede and amend the Prior PDM Agreement only to the extent expressly modified by this Agreement. All other provisions of the Prior PDM Agreement remain in full force and effect.

2.2 Specific modifications include, without limitation, the following covenants and obligations:

(a) Development Deliverables and Acceptance: Party B shall deliver the Deliverables in accordance with the milestones set forth in Schedule A. Acceptance testing shall be conducted as specified in Schedule A, and acceptance shall occur only upon written sign-off by Party A or lapse of the acceptance period of days following delivery.

(b) Changes and Change Orders: Any change to the scope, specification or schedule shall require a written Change Order signed by authorized representatives of both parties. Change Orders shall specify changes to scope, price, schedule and any impact on intellectual property ownership.

3. TERM AND TERMINATION

3.1 Term. The term of this Agreement shall commence on the Effective Date and continue for a period of , unless earlier terminated as provided herein.

3.2 Termination for Cause. Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure such breach within days after written notice specifying the breach.

3.3 Effect of Termination. Upon termination, Party B shall deliver to Party A all completed and partially completed Deliverables and any Confidential Information of Party A in Party B's possession. Termination shall not relieve either party of liabilities accrued prior to termination.

4. COMPENSATION AND PAYMENT

4.1 Fees. In consideration for the services and Deliverables, Party A shall pay Party B the amounts set forth in Schedule B. Initial payment upon execution of this Agreement shall be USD.

4.2 Payment Terms. Unless otherwise agreed in writing, invoices shall be payable within days of receipt. Late payments shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law.

5. CONFIDENTIALITY

5.1 Each party shall maintain the confidentiality of the other party's Confidential Information using at least the same degree of care as it uses to protect its own confidential information, but in no event less than reasonable care. Confidential Information shall not be used except to perform obligations under this Agreement.

5.2 Exceptions. Confidential Information shall not include information that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement; (b) is known to the receiving party at the time of disclosure; or (c) is rightfully obtained from a third party without breach of an obligation of confidentiality.

6. INTELLECTUAL PROPERTY

6.1 Ownership. Except as expressly set forth herein, Party A shall retain ownership of its pre-existing intellectual property and Party B shall retain ownership of its pre-existing intellectual property. All Deliverables produced specifically for Party A under this Agreement shall be deemed "work made for hire" to the extent permitted by law, and to the extent such work is not a work made for hire, Party B assigns to Party A all right, title and interest in such Deliverables upon full payment.

6.2 License Back. Where Party B retains underlying proprietary tools, Party B grants Party A a non-exclusive, worldwide, royalty-free license to use such underlying tools solely to the extent necessary to use the Deliverables.

7. DATA SECURITY

7.1 Security Measures. Each party shall implement and maintain administrative, physical and technical safeguards appropriate to the sensitivity of the Confidential Information and Deliverables, including reasonable measures to protect against unauthorized access, disclosure, alteration or destruction.

7.2 Breach Notification. In the event of a security incident or unauthorized disclosure affecting the other party's Confidential Information, the notifying party shall provide written notice promptly and cooperate in good faith with the other party to investigate and remediate the incident.

8. REPRESENTATIONS AND WARRANTIES

8.1 Each party represents and warrants that it has full corporate power and authority to enter into this Agreement and to perform its obligations hereunder, and that the execution and delivery of this Agreement have been duly authorized by all necessary corporate action.

8.2 Party B warrants that the Deliverables will materially conform to the specifications in Schedule A for a period of months after acceptance. Remedies for breach of this warranty shall be limited to repair or replacement of nonconforming Deliverables or, at Party A's option, a refund of amounts paid for such Deliverables.

9. INDEMNIFICATION

9.1 Each party (the "Indemnifying Party") shall indemnify, defend and hold harmless the other party (the "Indemnified Party") from and against any third-party claims, damages, liabilities, costs and expenses (including reasonable attorneys' fees) arising from the Indemnifying Party's breach of this Agreement, negligence or willful misconduct.

9.2 Intellectual Property Indemnity. Party B shall indemnify and defend Party A against any claim that the Deliverables infringe any third-party intellectual property rights, provided Party A gives prompt written notice of the claim and allows Party B sole control of the defense and settlement of the claim.

10. LIMITATION OF LIABILITY

10.1 Except for liability arising from a party's willful misconduct, breach of confidentiality, or indemnification obligations for intellectual property infringement, neither party shall be liable to the other for special, incidental, consequential, punitive or exemplary damages, whether foreseeable or not.

10.2 The aggregate liability of either party for any claim arising under this Agreement shall not exceed the total fees paid or payable by Party A to Party B under this Agreement during the twelve (12) month period preceding the event giving rise to the claim.

11. NOTICES

All notices under this Agreement shall be in writing and delivered to the addresses below by certified mail, overnight courier or email with confirmation of delivery:

12. AMENDMENTS; WAIVER

This Agreement may not be amended except by a written instrument signed by authorized representatives of both parties. No waiver of any breach shall be effective unless in writing, and no waiver shall constitute a waiver of any other breach.

13. GOVERNING LAW; VENUE

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to conflicts of law principles. The parties consent to exclusive jurisdiction and venue in the state and federal courts located in that State.

14. ENTIRE AGREEMENT; SEVERABILITY

This Agreement, together with the Prior PDM Agreement as modified herein and the Schedules expressly incorporated by reference, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

15. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Signatures delivered by electronic transmission shall be binding as original signatures.

SCHEDULE A — DELIVERABLES AND MILESTONES

SCHEDULE B — FEES

MISCELLANEOUS

The parties acknowledge that this instrument constitutes a counterproposal to the Prior PDM Agreement. Except as expressly set forth herein, no other term, condition, or provision of the Prior PDM Agreement is modified.

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