RESOLVE SUCH DISPUTES.
IF THE SENIOR MANAGEMENT CANNOT RESOLVE THE DISPUTE,
THE PARTIES AGREE TO MEET FOR ONE (1) DAY WITH AN IMPARTIAL MEDIATOR TO ATTEMPT
TO RESOLVE SUCH DISPUTE.
IF THE DISPUTE IS NOT RESOLVED BY SUCH MEDIATION, THEN
THE PARTIES AGREE THAT SUCH DISPUTE SHALL BE RESOLVED BY BINDING ARBITRATION IN
SAN FRANCISCO, CALIFORNIA BEFORE THREE (3) ARBITRATORS IN ACCORDANCE WITH THE
RULES OF THE INTERNATIONAL CHAMBER OF COMMERCE ("ICC") IN EFFECT AS OF THE
EFFECTIVE DATE OF THIS SETTLEMENT AGREEMENT. THE PARTIES, THEIR REPRESENTATIVES,
OTHER PARTICIPANTS AND ARBITRATORS SHALL HOLD THE EXISTENCE, CONTENT AND RESULT
OF ARBITRATION IN CONFIDENCE, EXCEPT AS OTHERWISE REQUIRED OR ADVISABLE IN
CONNECTION WITH SECURITIES FILINGS OR OTHERWISE REQUIRED BY LAW.
THE AWARD OF
THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
THIS
SECTION 6.7 SHALL NOT BE CONSTRUED AS RESTRICTING OR LIMITING EITHER PARTY'S
ABILITY TO IMMEDIATELY ASSERT A LICENSE OR OTHER DEFENSE IN ANY LITIGATION OR
OTHER PROCEEDING AGAINST SUCH PARTY, SUCH PARTY'S SUBSIDIARIES, OR ITS OR THEIR
PRODUCTS OR THE RESELLERS, DISTRIBUTORS OR CUSTOMERS OF SUCH PRODUCTS,
REGARDLESS OF JURISDICTION OR VENUE.
6.8
FURTHER ACTS.
EACH PARTY TO THIS SETTLEMENT
AGREEMENT AGREES TO PERFORM ANY FURTHER ACTS AND TO CAUSE ITS SUBSIDIARIES TO
PERFORM SUCH FURTHER ACTS, AND EXECUTE AND DELIVER AND TO CAUSE ITS SUBSIDIARIES
TO EXECUTE AND DELIVER ANY FURTHER DOCUMENTS THAT MAY BE REASONABLY NECESSARY TO
CARRY OUT THE PROVISIONS OF THIS SETTLEMENT AGREEMENT.
6.9
SEVERABILITY.
IF ANY PROVISION OF THIS
SETTLEMENT AGREEMENT IS HELD TO BE ILLEGAL OR UNENFORCEABLE, SUCH PROVISION
SHALL BE LIMITED OR ELIMINATED TO THE MINIMUM EXTENT NECESSARY SO THAT THE
REMAINDER OF THIS SETTLEMENT AGREEMENT WILL CONTINUE IN FULL FORCE AND EFFECT
AND BE
ENFORCEABLE. THE PARTIES AGREE TO NEGOTIATE IN GOOD FAITH AN ENFORCEABLE
SUBSTITUTE PROVISION FOR ANY INVALID OR UNENFORCEABLE PROVISION THAT MOST NEARLY
ACHIEVES THE INTENT OF SUCH PROVISION.
6.10
ENTIRE AGREEMENT.
THIS SETTLEMENT AGREEMENT,
TOGETHER WITH THE PATENT LICENSE AGREEMENT, EMBODIES THE ENTIRE UNDERSTANDING OF
THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND MERGE ALL PRIOR
DISCUSSIONS BETWEEN THEM, AND NEITHER OF THE PARTIES SHALL BE BOUND BY ANY
CONDITIONS, DEFINITIONS, WARRANTIES, UNDERSTANDINGS, OR REPRESENTATIONS WITH
RESPECT TO THE SUBJECT MATTER HEREOF OTHER THAN AS EXPRESSLY PROVIDED HEREIN.
NO ORAL EXPLANATION OR ORAL INFORMATION BY EITHER PARTY HERETO SHALL ALTER THE
MEANING OR INTERPRETATION OF THIS SETTLEMENT AGREEMENT.
6.11
MODIFICATION; WAIVER.
NO MODIFICATION OR
AMENDMENT TO THIS SETTLEMENT AGREEMENT, NOR ANY WAIVER OF ANY RIGHTS, WILL BE
EFFECTIVE UNLESS ASSENTED TO IN WRITING BY THE PARTY TO BE CHARGED, AND THE
WAIVER OF ANY BREACH OR DEFAULT WILL NOT CONSTITUTE A WAIVER OF ANY OTHER RIGHT
HEREUNDER OR ANY SUBSEQUENT BREACH OR DEFAULT.
6.12
CONSTRUCTION.
ANY RULE OF CONSTRUCTION TO THE
EFFECT THAT AMBIGUITIES ARE TO BE RESOLVED AGAINST THE DRAFTING PARTY WILL NOT
BE APPLIED IN THE CONSTRUCTION OR INTERPRETATION OF THIS SETTLEMENT AGREEMENT.
AS USED IN THIS SETTLEMENT AGREEMENT, THE WORDS "INCLUDE" AND "INCLUDING," AND
VARIATIONS THEREOF, WILL NOT BE