MT9P401: CMOS Image Sensor, 5 MP, 1/2.5"

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8. Indemnification. Licensee acknowledges and agrees that Licensee is solely and wholly responsible and liable for any and all Modifications, Licensee Products, and any and all of Licensee's Products other products and/or services, including without limitation, with respect to the installation, manufacturing, testing, distribution, use, support and/or maintenance of any of the foregoing. Licensee shall, at Licensee's sole expense, defend, indemnify and hold harmless ON Semiconductor and its subsidiaries and affiliates from and against any and all claims, demands, suits, actions, and proceedings ("Claim(s)"), and all related damages, costs, and expenses (including reasonable attorneys fees), arising from, related to or in connection with Modifications, Licensee Products, and the Content in combination with Modifications and/or Licensee Products, including without limitation, in relation to product liability or infringement of third party rights. ON Semiconductor shall: (a) notify Licensee promptly upon learning of such a Claim; (b) give Licensee reasonable information and assistance regarding such Claim; and (c) tender to Licensee authority to direct the defense of such Claim, including negotiation of any settlement in relation thereto, provided however that Licensee shall not enter into any such settlement without ON Semiconductor's express prior written consent, which consent shall not be unreasonably withheld.

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10. Performance Comparisons. Licensee shall not distribute externally or disclose to any Customer or to any third party any reports or statements that directly compare the speed, functionality or other performance results or characteristics of the Software with any similar third party products without the express prior written consent of ON Semiconductor in each instance; provided, however, that Licensee may disclose such reports or statements to Licensee's consultants (i) that have a need to have access to such reports or statements for purposes of the license grant of this Agreement, and (ii) that have entered into a written confidentiality agreement with Licensee no less restrictive than that certain NDA.

11. Miscellaneous.

11.1 Governing Law. This Agreement shall be governed by the laws of the State of New York, and applicable U.S. federal law, without giving effect to conflict of law or to choice of law principles, and excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods, if applicable.

11.2 Assignment. Neither this Agreement, nor any of the rights or obligations herein, may be assigned or transferred by Licensee without the express prior written consent of ON Semiconductor, and any attempt to do so in violation of the foregoing shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns.

11.3 Limitations on Use. The Software is not designed, developed, licensed or provided for use in connection with any nuclear facility, or in connection with the flight, navigation or communication of aircraft or ground support equipment, or in connection with military or medical equipment/applications or activities, or any other inherently dangerous or high risk equipment/applications or activities ("High Risk Use"). Licensee agrees that ON Semiconductor (and its licensors/suppliers) shall not be liable or responsible for any claims, losses, demands, costs, expenses or liabilities whatsoever arising from or in relation to any such High Risk Use of the Content, Software, Modifications or Licensee Products by Licensee or Customers.

11.4 Severability; Waiver. Any provision of this Agreement which is held to be invalid or unenforceable by a court in any jurisdiction shall, as to such jurisdiction, be severed from this Agreement and ineffective to the extent of such invalidity or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. Failure by either party hereto to enforce any term of this Agreement shall not be held a waiver of such term nor prevent enforcement of such term thereafter, unless and to the extent expressly set forth in a writing signed by the party charged with such waiver.

11.5 Remedies Not Exclusive. The remedies herein are not exclusive, but rather are cumulative and in addition to all other remedies available to ON Semiconductor.

11.6 Records; Audit. Licensee agrees that it shall maintain accurate and complete records relating to its activities under Section 2.1(b)(iii) of this Agreement during the term of this Agreement. Upon reasonable advance written notice, ON Semiconductor shall have the right no more frequently than once in any 12 month period during the term of the Agreement, through an independent third party approved by Licensee in writing (such approval not to be unreasonably withheld), to examine and audit such records and Licensee's compliance with the terms of Section 2.1(b)(iii) of this Agreement. Any such audit shall not interfere with the ordinary business operations of Licensee and shall be conducted at the expense of ON Semiconductor. All reports, documents, materials and other information collected or prepared during an audit shall be deemed to be the confidential information of Licensee ("Licensee Confidential Information"), and ON Semiconductor shall protect the confidentiality of all Licensee Confidential Information; provided that, such Licensee Confidential Information shall not be disclosed to any third parties with the sole exception of the independent third party auditor approved by Licensee in writing, and its permitted use shall be restricted to the purposes of the audit rights described in this Section 11.6.

11.7 No Joint Venture, Agency, etc. Nothing in this Agreement shall be construed as creating a joint venture, agency, partnership, trust or other similar association of any kind between the parties hereto. The parties hereto are for all purposes of this Agreement independent contractors, and neither shall hold itself out as having any authority to act as an agent or partner of the other party, or in any way bind or commit the other party to any obligations.

11.8 Interpretation. In this Agreement, words importing a singular number only shall include the plural and vice versa, and section numbers and headings are for convenience of reference only and shall not affect the construction or interpretation hereof.

11.9 Entire Agreement; Amendment; Counterparts; Facsimile Copies. This Agreement, including the Exhibits attached hereto, constitutes the entire agreement and understanding between the parties hereto regarding the subject matter hereof and supersedes all other agreements, understandings, promises, representations or discussions, written or oral, between the parties regarding the subject matter hereof. This Agreement may not be amended except in writing signed by an authorized representative of each of the parties hereto. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and which together shall constitute one and the same agreement. Each party hereto may deliver an executed copy of this Agreement to the other party via facsimile or other electronic means, and such executed copy(ies) sent/received via facsimile or other electronic means shall be deemed an original and binding copy.

12. Confidentiality. Notwithstanding any terms to the contrary in any non-disclosure agreements between the Parties, Licensee shall treat this Agreement and the Content as ON Semiconductor's "Confidential Information" including: not using the Confidential Information except as expressly set forth herein or otherwise authorized in writing; implementing reasonable procedures to prohibit the disclosure, unauthorized duplication, misuse or removal of the Confidential Information; and not disclosing the Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations under this Agreement and subject to confidentiality obligations at least as protective as those set forth herein, or as otherwise required by law. It is expressly understood that all Confidential Information transferred hereunder, and all copies, modifications, and derivatives thereof, will remain the property of ON Semiconductor, and the Licensee is authorized to use those materials only in accordance with the terms and conditions of this Agreement. Upon termination of this Agreement or upon written request, License shall either return all Confidential Information to ON Semiconductor along with all copies and/or derivatives made, including that on computer databases and copies of portions of the Confidential Information, or destroy all such Confidential Information and certify by written memorandum that all such Confidential Information has been destroyed.

Nothing contained in this Agreement limits a party from filing a truthful complaint, or the party's ability to communicate directly to, or otherwise participate in either: (i) any investigation or proceeding with a United States government agency alleging a securities law violation, waste, fraud, or abuse; or (ii) an investigation or proceeding that is protected under a whistleblower provision of a U.S. federal law or regulation.