This License Agreement, including the Order Form which by this reference is incorporated herein (this "Agreement"), is a binding agreement between HERO-MATE LLC, a Michigan limited liability company ("Licensor") and the person or entity identified on the Order Form as the licensee of the Software ("Licensee" or "You") (collectively, the "Parties," or each, individually, a "Party").
Licensor provides the Licensed Patents and the Licensed Know-How solely on the terms and conditions set forth in this Agreement and on the condition that Licensee accepts and complies with them.
By clicking the "accept" button or checking the "accept" box on the order form you as Licensee accept this agreement and agree that Licensee is legally bound by its terms.
You represent and warrant that: (i) you are 18 years of age or older; and (ii) if Licensee is a corporation, governmental organization, or other legal entity, you have the right, power, and authority to enter into this agreement on behalf of Licensee and bind Licensee to its terms. If Licensee does not agree to the terms of this agreement, Licensor will not and does not license the Licensed Patents and the Licensed Know-How.
Notwithstanding anything to the contrary in this agreement or your or licensee's acceptance of the terms and conditions of this agreement, no license is granted (whether expressly, by implication, or otherwise) under this agreement, and this agreement expressly excludes any right, concerning any Licensed Patents or Licensed Know-How that Licensee did not acquire lawfully.
- Maximum Sale Price. Licensee agrees that each Ventilator sold or leased by Licensee will be sold or leased with a total price per Ventilator of less than Five Hundred US Dollars ($500.00) and that this covenant is a material term of this Agreement.
- Definitions. For purposes of this Agreement, the following terms have the following meanings:
"Action" has the meaning set forth in Section 14.1.
"Affiliate" of a Person means any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" for purposes of this Agreement means the power to direct or cause the direction of the management and policies of a Person, and "controlled by" and "under common control with" have correlative meanings.
"Agreement" has the meaning set forth in the preamble.
"Business Day" means a day other than a Saturday, Sunday, or other day on which commercial banks in New York, NY are authorized or required by Law to be closed for business.
""Confidential Information" means all non-public, confidential, or proprietary information of Licensor or its Affiliates, whether in oral, written, electronic, or other form or media, whether or not such information is marked, designated, or otherwise identified as "confidential" and includes any information that, due to the nature of its subject matter or circumstances surrounding its disclosure, would reasonably be understood to be confidential or proprietary, including, specifically: (a) the Licensed Know-How; (b) Licensor's other unpatented inventions, ideas, methods, discoveries, know-how, trade secrets, unpublished patent applications, invention disclosures, invention summaries, and other confidential intellectual property; and (c) all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials prepared by or for Licensee or its Affiliates that contain, are based on, or otherwise reflect or are derived from any of the foregoing in whole or in part.
Confidential Information does not include information that Licensee can demonstrate by documentation: (w) was already known to Licensee or its Affiliates without restriction on use or disclosure prior to the Effective Date; (x) was or is independently developed by Licensee or its Affiliates without reference to or use of any Confidential Information; (y) was or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, Licensee or its Affiliates; or (z) was received by Licensee or its Affiliates from a third party who was not, at the time, under any obligation to Licensor or any other Person to maintain the confidentiality of such information.
"Effective Date" means the date the Order Form is accepted by Licensor.
"Field of Use" means the design, manufacture and sale of Ventilators.
"Improvement" means any modification of or improvement or enhancement to any Licensed Product or Licensed Know-How.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Licensed Know-How" means any and all technical information, trade secrets, formulas, prototypes, specifications, directions, instructions, test protocols, procedures, results, studies, analyses, raw material sources, data, manufacturing data, formulation or production technology, conceptions, ideas, innovations, discoveries, inventions, processes, methods, materials, machines, devices, formulae, equipment, enhancements, modifications, technological developments, techniques, systems, tools, designs, drawings, plans, software, documentation, data, programs, and other knowledge, information, skills, and materials owned or controlled by Licensor pertaining to the Licensed Patents and useful in the manufacture, sale, or use of the Licensed Products.
"Licensed Patent(s)" means the following patents and patent applications:_____________________________________ together with all patents that issue therefrom and all continuations, continuations-in-part, divisionals, extensions, substitutions, reissues, re-examinations, and renewals of any of the foregoing.
"Licensed Patent Challenge" has the meaning set forth in Section 8.
"Licensed Product(s)" means Ventilators that incorporate or use any element of the Licensed Know-How in its design or manufacture.
"Licensee" has the meaning set forth in the preamble.
"Licensor" has the meaning set forth in the preamble.
"Losses" means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers.
"Order Form" means the order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee's purchase of the license for the Licensed Patents and Licensed Know-How granted under this Agreement.
"Party" has the meaning set forth in the preamble.
"Person(s)" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
"Representatives" means a Party's employees, officers, directors, consultants, and legal advisors.
"Term" has the meaning set forth in Section 16.1.
"Territory" means the United States of America.
"Ventilator" means a machine that helps a patient breath.
- Patent and Know-How License. Subject to the terms and conditions of this Agreement and expressly conditioned on Licensee's adherence to Section 1, Licensor hereby grants to Licensee and its Affiliates during the Term a nontransferable, nonsublicensable, non-exclusive right and license under the Licensed Patents and Licensed Know-How to make, have made, use, offer to sell, sell, and import Licensed Products in the Field of Use in the Territory; provided, however, that the right and license granted in this Section 2.1 is expressly limited to Licensed Products that (i) are designed by Licensee or its Affiliates and (ii) sold, offered for sale, or distributed under a trademark owned by Licensee or its Affiliates. For the avoidance of doubt, no "have made" rights are granted hereunder and Licensee and its Affiliates have no right to permit any third party to make any Licensed Products.
- No Laundering. The right and license granted to Licensee and its Affiliates hereunder are intended to cover only bona fide products or services of Licensee and its Affiliates and do not cover any activity of or arrangement with any third party for the primary purpose of extending rights under the Licensed Patents and Licensed Know-How to such third party or to cover such third party's products. Without limiting the foregoing, Licensee shall not "have made" any Licensed Products from designs owned by any unlicensed third party solely for resale to or on behalf of such third party.
- Limited Grant. Except for the rights and licenses granted by Licensor under this Section 3, this Agreement does not grant to Licensee or any other Person any right, title, or interest by implication, estoppel, or otherwise. Without limiting the foregoing, nothing in this Agreement grants by implication, estoppel, or otherwise, any right, title, or interest in, to, or under any patents owned or controlled by Licensor other than Licensed Patents. All rights, titles, and interests not specifically and expressly granted by Licensor hereunder are hereby reserved.
- Transfer of Licensed Know-How. Promptly after the Effective Date, Licensor shall disclose the Licensed Know-How to Licensee in such form and media as Licensor may determine. For the avoidance of doubt, all Licensed Know-How disclosed to Licensee hereunder is the Confidential Information of Licensor and subject to the confidentiality and non-disclosure obligations under Section 1, and Licensee's use of any documentation, materials, or other information concerning the Licensed Know-How provided under this Section 4 is subject to the terms and conditions of this Agreement, including the scope of the license granted under Section 3.
- Licensee Improvements. Licensee hereby grants to Licensor a non-exclusive, worldwide, royalty-free, license, with the right to grant sublicenses, to any of its Improvements and to and under all patents and patent applications owned or controlled by Licensee or its Affiliates claiming any Improvements. Licensee shall disclose each Improvement to Licensor in writing within thirty (30) Business Days after its conception, reduction to practice or acquisition. Licensee's notice must include a summary of the subject matter claimed in its Improvement patent application.
- Records and Audit. Licensee shall keep complete and accurate records of transactions involving use of the Licensed Patents and Licensed Know-How and Licensor shall have the right to audit such records during the Term and for six months thereafter.
- Patent Prosecution and Maintenance. For each patent and patent application included within the Licensed Patents, Licensor will be solely responsible for, and make all decisions concerning, the preparation, filing, prosecution, and maintenance thereof.
- Challenges to Licensed Patents. If, during the Term, Licensee or any of its Affiliates institutes or actively participates as an adverse party in, or otherwise provides material support to, any action, suit, or other proceeding in the Territory to invalidate or limit the scope of any Licensed Patent claim or obtain a ruling that any Licensed Patent claim is unenforceable or not patentable or that any Licensed Products would not, but for the licenses granted hereunder, infringe one or more claims of any Licensed Patent ("Licensed Patent Challenge"), Licensor may immediately terminate this Agreement with notice to Licensee and with no opportunity for Licensee to cure.
- Enforcement; Third-Party Infringement Claims.
- Notice of Infringement or Third-Party Claims. If (a) either Party believes that any Licensed Patent or Licensed Know-How is being infringed or misappropriated by a third party in the Territory, or (b) if a third party alleges that any Licensed Patent is invalid or unenforceable, or claims that a Licensed Product, or its use, development, manufacture, or sale infringes such third party's intellectual property rights in the Territory, the Party possessing such belief or awareness of such claims shall promptly provide written notice to the other Party and provide it with all details of such infringement or claim, as applicable, that are known by such Party.
- Right to Bring Action or Defend. Licensor has the sole right and discretion to bring an infringement or misappropriation action concerning any Licensed Patent or the Licensed Know-How, defend any declaratory judgment action concerning any Licensed Patent or the Licensed Know-How, and take any other lawful action reasonably necessary to protect, enforce, or defend any Licensed Patent or the Licensed Know-How, and control the conduct thereof and attempt to resolve any claims relating to any Licensed Patent or the Licensed Know-How, including by taking any other lawful action that Licensor, in its sole discretion, believes is reasonably necessary to protect, enforce, or defend any Licensed Patent or Licensed Know-How. Licensor has the right to prosecute or defend any such proceeding in Licensor's own name or, if required by applicable Law or otherwise necessary or desirable for such purposes, in the name of Licensee and may join Licensee as a party if a court of competent jurisdiction determines Licensee is an indispensable party to such proceeding. Licensor shall bear its own costs and expenses in all such proceedings and have the right to control the conduct thereof and be represented by counsel of its own choice therein. Licensee shall and hereby does irrevocably and unconditionally waive any objection to Licensor's joinder of Licensee to any proceeding described herein on any grounds whatsoever, including on the grounds of personal jurisdiction, venue, or forum non conveniens. If Licensor brings or defends any such proceeding, Licensee shall cooperate in all respects with Licensor in the conduct thereof, and assist in all reasonable ways, including having its employees testify when requested, and make available for discovery or trial exhibit relevant records, papers, information, samples, specimens, and the like.
- Recovery and Settlement. If Licensor undertakes the enforcement or defense of any Licensed Patent then Licensor may settle any such suit, action, or other proceeding, whether by consent order, settlement, or other voluntary final disposition, without the prior written approval of Licensee, provided that Licensor shall not settle any such suit, action, or other proceeding in a manner that adversely affects the rights of Licensee concerning the Licensed Patents and Licensed Know-How without Licensee's prior written consent, which consent may not be unreasonably withheld or delayed.
- Intervention. If any suit, action, or other proceeding alleging invalidity or non-infringement of any Licensed Patent is brought against Licensee, Licensor, at its option, will have the right within twenty (20) days after commencement of such suit, action, or other proceeding, to intervene and take over the sole defense of the suit, action, or other proceeding at its own expense.
- Compliance with Laws.
- Patent Marking. Licensee shall comply with the patent marking provisions of 35 USC § 287(a) by marking all Licensed Products with the word "patent" or the abbreviation "pat." and either the numbers of the relevant Licensed Patents or a web address that is freely accessible to the public and that associates the Licensed Products with the relevant Licensed Patents. Licensee shall also comply with the patent marking Laws of the relevant countries in the Territory.
- Export Compliance. Licensee shall not, directly or indirectly, export or re-export the Licensed Products (including any associated products, items, articles, computer software, media, services, technical data, and other information) in violation of any applicable Laws.
- Confidentiality Obligations. Licensee (the "Receiving Party") acknowledges that in connection with this Agreement it will gain access to Confidential Information of Licensor (the "Disclosing Party"). As a condition to being provided with Confidential Information, the Receiving Party shall, during the Term and for two (2) years thereafter:
- not use the Disclosing Party's Confidential Information other than as strictly necessary to exercise its rights and perform its obligations under this Agreement; and
- maintain the Disclosing Party's Confidential Information in strict confidence and, subject to Section 11.2, not disclose the Disclosing Party's Confidential Information without the Disclosing Party's prior written consent, provided, however, the Receiving Party may disclose the Confidential Information to its Representatives who:
- have a need to know the Confidential Information for purposes of the Receiving Party's performance, or exercise of its rights concerning the Confidential Information, under this Agreement;
- have been apprised of this restriction; and
- are themselves bound by written nondisclosure agreements at least as restrictive as those set forth in this Section 11.1, provided further that the Receiving Party will be responsible for ensuring its Representatives' compliance with, and will be liable for any breach by its Representatives of, this Section 11.1.
The Receiving Party shall use reasonable care, at least as protective as the efforts it uses for its own confidential information, to safeguard the Disclosing Party's Confidential Information from use or disclosure other than as permitted hereby.
- Exceptions. If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide prompt written notice to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy or waive its rights under Section 11; and disclose only the portion of Confidential Information that it is legally required to furnish. If a protective order or other remedy is not obtained, or the Disclosing Party waives compliance under Section 11, the Receiving Party shall, at the Disclosing Party's expense, use reasonable efforts to obtain assurance that confidential treatment will be afforded the Confidential Information.
- Representations and Warranties.
- Mutual Representations and Warranties. Each Party represents and warrants to the other party that as of the Effective Date: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering; (b) t has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary action of the Party; and (d) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of that Party, enforceable against that Party in accordance with its terms.
- Licensor Representations and Warranties. Licensor represents and warrants that, to Licensor's knowledge, Licensor is the owner of the entire right, title, and interest in and to the Licensed Patents and Licensed Know-How.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12.2, LICENSOR DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, CONCERNING THE VALIDITY, ENFORCEABILITY, AND SCOPE OF THE LICENSED PATENTS, THE ACCURACY, COMPLETENESS, SAFETY, USEFULNESS FOR ANY PURPOSE, OR LIKELIHOOD OF SUCCESS (COMMERCIAL, REGULATORY OR OTHER) OF THE LICENSED PRODUCTS, LICENSED KNOW-HOW, AND ANY OTHER TECHNICAL INFORMATION, TECHNIQUES, MATERIALS, METHODS, PRODUCTS, PROCESSES, OR PRACTICES AT ANY TIME MADE AVAILABLE BY LICENSOR, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, LICENSOR WILL HAVE NO LIABILITY WHATSOEVER TO LICENSEE OR ANY OTHER PERSON FOR OR ON ACCOUNT OF ANY INJURY, LOSS, OR DAMAGE, OF ANY KIND OR NATURE, SUSTAINED BY, OR ANY DAMAGE ASSESSED OR ASSERTED AGAINST, OR ANY OTHER LIABILITY INCURRED BY OR IMPOSED ON LICENSEE OR ANY OTHER PERSON, ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM (A) THE MANUFACTURE, USE, OFFER FOR SALE, SALE, OR IMPORT OF A LICENSED PRODUCT, OR THE PRACTICE OF THE LICENSED PATENTS; (B) THE USE OF OR ANY ERRORS OF OMISSIONS IN ANY KNOW-HOW, TECHNICAL INFORMATION, TECHNIQUES, OR PRACTICES DISCLOSED BY LICENSOR; OR (C) ANY ADVERTISING OR OTHER PROMOTIONAL ACTIVITIES CONCERNING ANY OF THE FOREGOING.
- COVID-19 Countermeasure Limitation of Liability. The Parties shall cooperate so that to the maximum extent permitted by law their activities related to this Agreement are protected by liability immunity pursuant to the United States Department of Health and Human Services' Declaration Under the Public Readiness and Emergency Preparedness Act for Countermeasures Against COVID-19 and any related executive action, law, rule or regulation.
- Exclusion of Consequential and Other Indirect Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR WILL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INJURY TO OR LOSS OF GOODWILL, REPUTATION, BUSINESS, PRODUCTION, REVENUES, PROFITS, ANTICIPATED PROFITS, CONTRACTS, OR OPPORTUNITIES (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THIS AGREEMENT), REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its Affiliates, and each of Licensor's and its Affiliates' respective officers, directors, employees, agents, successors, and assigns against all Losses arising out of or resulting from any third party claim, suit, action, or other proceeding related to or arising out of or resulting from (a) Licensee's breach of any representation, warranty, covenant, or obligation under this Agreement, or (b) use by Licensee of Licensed Patents or Licensed Know-How, or (c) any use, sale, transfer, or other disposition by Licensee of Licensed Products or any other products made by use of Licensed Patents or Licensed Know-How (each an "Action").
- Indemnification Procedure. Licensor shall notify Licensee in writing of any Action and cooperate with Licensee at Licensee's sole cost and expense. Licensee shall immediately take control of the defense and investigation of the Action and shall employ counsel of its choice to handle and defend the Action, at Licensee's sole cost and expense. Licensee shall not settle any Action in a manner that adversely affects the rights of Licensor without Licensor's prior written consent, which consent may not be unreasonably withheld or delayed. Licensor's failure to perform any obligations under this Section 14.2 will not relieve Licensee of its obligation under Section 14 except to the extent Licensee can demonstrate that it has been materially prejudiced as a result of the failure. Licensor and its Affiliates may participate in and observe the proceedings at their own cost and expense with counsel of their own choosing.
- Insurance. Throughout the Term and for a period of three (3) years after the Term, Licensee shall, at its sole cost and expense, obtain, pay for, and maintain in full force and effect commercial general liability and professional liability (Errors and Omissions) insurance in commercially reasonable and appropriate amounts that (a) provides product liability coverage concerning the Licensed Products and contractual liability coverage for Licensee's defense and indemnification obligations under this Agreement, and (b) in any event, provide commercial general liability limits of not less than One Million US dollars ($1,000,000) and professional liability insurance limits of not less than One Million US dollars ($1,000,000), in each case as an annual aggregate for all claims each policy year. To the extent any insurance coverage required under this Section 15 is purchased on a "claims-made" basis, such insurance must cover all prior acts of Licensee during the Term, and be continuously maintained until at least three (3) years beyond the expiration or termination of the Term, or Licensee shall purchase "tail" coverage, effective upon termination of any such policy or upon termination or expiration of the Term, to provide coverage for at least three (3) years from the occurrence of either such event. Licensee shall have Licensor named in each policy as an additional insured. Upon request by Licensor, Licensee shall provide Licensor with certificates of insurance or other reasonable written evidence of all coverages described in this Section 15. Additionally, Licensee shall provide Licensor with written notice at least fifteen (15) Business Days prior to Licensee cancelling, not renewing, or materially changing the insurance.
- Term and Termination.
- Term. This Agreement is effective as of the Effective Date and, unless terminated earlier in accordance with Section 16.2, will continue in full force and effect for each Licensed Product and country in the Territory on a Licensed Product-by-Licensed Product and country-by-country basis until Six (6) months after the Effective Date (the "Term").
- Termination for Cause. Licensor may terminate this Agreement immediately by giving written notice to Licensee if:
- Licensee materially breaches this Agreement (other than through a failure to pay any amounts due under this Agreement) and, if such breach is curable, fails to cure such breach within ten (10) Business Days of Licensor's written notice of such breach.
- Effect of Termination. Within ten (10) Business Days after termination or expiration of this Agreement, Licensee shall: (i) immediately cease all activities concerning, including all practice and use of, the Licensed Patents and Licensed Know-How; and (ii) within fifteen (15) Business Days after termination or expiration: (A) return to Licensor all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Licensor's Confidential Information; (B) permanently erase such Confidential Information from its computer systems; and (C) certify in writing to Licensor that it has complied with the requirements of this Section 16.3.
- Survival. The rights and obligations of the Parties set forth in this Section 16.4 and Section 2 (Definitions), Section 5 (Royalties), Section 8 (Challenges to Licensed Patents), Section 11 (Confidentiality), Section 12 (Representations and Warranties), Section 14 (Indemnification), Section 16.3 (Effect of Termination), and Section 17 (Miscellaneous), and any right, obligation, or required performance of the Parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
- Force Majeure. Licensor will not be in default by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to any circumstance or cause beyond its reasonable control, including strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning.
- Further Assurances. Each Party shall, upon the reasonable request of the other party, promptly execute such documents and take such further actions as may be necessary to give full effect to the terms of this Agreement.
- Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement creates any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither Party has authority to contract for or bind the other party in any manner whatsoever.
- No Public Statements. Neither Party may issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which may not be unreasonably withheld or delayed.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (other than routine communications having no legal effect) must be in writing and sent to the respective Party at the addresses indicated below (or at such other address for a Party as may be specified in a notice given in accordance with this Section). If to Licensor, to Hero-Mate LLC, Attn: David Stout, 6677 Knollview Drive, Hudsonville, Michigan 49426. If to Licensee, to the address provided by Licensee on the Order Form. Notices sent in accordance with this Section 17.5 will be deemed effective: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email (with confirmation of transmission), if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient; or (d) on the fourth Business Day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
- Interpretation. For purposes of this Agreement: (a) the words "include," "includes," and "including" will be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Schedules refer to the Sections of and Schedules attached to this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Entire Agreement. This Agreement, together with all Schedules and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule or other document, the following order of precedence will govern: (a) first, this Agreement, excluding its Schedules; and second, any other documents incorporated herein by reference.
- Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor's prior written consent. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 17.9 is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
- Amendment; Modification; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving Party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Michigan, United States of America (including any applicable choice of law statutes), without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Michigan. Any action, suit, or other proceeding arising out of or related to this Agreement, the licenses granted hereunder, or the validity or enforceability or scope of any Licensed Patent claim, or whether a Licensed Product infringes a valid claim of a third party, including any Licensed Patent Challenge, or Licensee's obligations concerning the Licensed Know-How must be instituted exclusively in the federal courts of the United States or the courts of the State of Michigan in each case located in the city of Grand Rapids and County of Kent and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein will be effective service of process for any action, suit, or other proceeding brought in any such court.
- Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury for any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
- Equitable Relief. Each Party acknowledges that a breach by the other Party of this Agreement may cause the non-breaching Party irreparable harm, for which an award of damages would not be adequate compensation and, in the event of such a breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including in the form of a restraining order, orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any court, and the Parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such relief. These remedies are not exclusive but are in addition to all other remedies available under this Agreement at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.