Miscellaneous¶
Disclaimer of Representations and Warranties¶
Neither party makes any representation or warranty except for their respective representations and warranties set forth in section 5, and each party disclaims all implied warranties, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose.
Limitation of Liability¶
Seller’s total liability under this agreement will not exceed Fifty Thousand U.S. Dollars (US$50,000). Buyer’s total liability under this agreement will not exceed the reasonable market value of the assigned patent rights in addition to any amounts that may be due to the seller pursuant to section 2.4. The parties acknowledge that the limitation on potential liability set forth in this section 6.2 were an essential element in setting consideration under this agreement.
Limitation on Consequential Damages¶
Neither party will have any obligation or liability (whether in contract, warranty, tort (including negligence) or otherwise, and notwithstanding any fault, negligence (whether active, passive or imputed), representation, strict liability or product liability), for cover or for any incidental, indirect, consequential, multiplied, punitive, special, or exemplary damages or loss of revenue, profit, savings or business arising from or otherwise related to this agreement, even if a party or its representatives have been advised of the possibility of such damages. The parties achnowledge that these excluSiôns of potential damages were an essential element in setting consideration under this agreement.
Compliance with Laws¶
Notwithstanding anything contained in this Agreement to the contrary, the obligations of the parties with respect to the consummation of the transactions contemplated by this Agreement shall be subject to all laws, present and future, of any government having juristiction over the parties and this transaction, and to orders, regulations, directions or requests of any such government.
Confidentiality of Terms¶
Buyer will keep the terms and existence of this Agreement and the identities of the parties hereto and their Affiliates confidential and will not now or hereafter divulge any of such information to any third party except (a) with prior written consent of Seller; (b) as otherwise may be required by law or legal process, including, without limitation, in confidence to legal and financial advisors in their capacity of advising Buyer in such matters; (c) during the course of litigation, so long as the disclosure of such terms and conditions is restricted in the same manner as is the confidential information of the other litigating parties; (d) in confidence to its legal counsel, accountants, insurers, and their advisors solely in connection with complying with its obligations under this Agreement; (e) in order to perfect Buyer’s interest in the Assigned Patent Rights with any governmental agency (including, without limitation, recording the Excecuted Assignments of Exhibit B in any governmental patent office); (f) to inform Buyer’s existing licensees or prospective licensees of the Seller’s assignment to Buyer of the assets assigned by this Agreement, but only to the minimum extent of disclosure required for such purpose; or (g) to enforce Buyer’s right, title, and interest in and to the Assigned Patent Rights; provided that, in (b) and (c) above, (i) to the extent permitted by law, buyer will use all legitimate and legal means available to minimize the disclosure to third parties, including, without limitation, seeking a confidential treatment request or protective order whenever appropriate or available; and (ii) Buyer will provide the other party with at least ten (10) calendar days’ prior written notice of such disclosure, Seller may disclose the terms and existence of this Agreement, and the identities of the parties hereto and their Affiliates, to any third party at Seller’s sole discretion. In the even of any breach or default, threatened or otherwise, by Buyer under this Section, the parties achnowledge and agree that damages alone would be insufficient to compensate for any such breach or default and that irreparable harm would result from such breach or default. Consequently, in the event of any such breach or default, or any threat of such breach or default by Buyer, then Seller will be entitled to temporary or permanent injunctive relief, specific performance and such other equitable relief as may be appropriate in the circumstances in order to restrain or enjoin such breach or default. These remedies will not be the exclusive remedies for violation of the terms of the confidentiality obligations contained in this Section, but will be in addition to all other remedies available to the parties at law or in equity.
Governing Law; Venue/ Juristiction¶
This Agreement should be interpreted, enforced, construed and controlled by the laws of the State of California, without reference to principle of conflicts or choice of law provisions. The exclusive juristiction for any court action or proceeding arising out of or related to this Agreement shall be the federal or state courts of Santa Clara County, California, and each Party hearby consents to the juristiction of those courts.
Notices¶
All notices given hereunder will be given in writing (in English or with an English translation), will refer to Buyer, Seller, and to this Agreement (by including referencing this Agreement), and will be delivered to the address set forth below by (i) personal delivery, or (ii) delivery postage prepaired by an internationally-recognized express courier service:
If to Seller |
If to Buyer |
|---|---|
Google Inc. |
DATRO Consortium (updated - see changelog) |
1600 Amphitheatre Parkway, Mountain View, CA 94043 |
Newmill Farm, Monknash, Cowbridge CF71 7QQ, UK |
Attention: Legal - Patents |
Attention: DATRO Consortium |
With a copy via electronic mail to: |
With a copy via electronic mail to: |
Notices are deemed given on (a) the data of receipt if delivered personally or by express courier or (b)if delivery refused, the date of refusal. Notice given in any other manner will be deemed to have been given only if an when received at the address of the person to be notified. Either party may from time to time change its address for notices under this Agreement by giving the other party written notice of such change in accordance with this Section.
Relationship of Parties¶
The parties hereto are independent contractors and this Agreement is being entered into at arm’s length. Nothing in this Agremeent will be construed to create a partnership, join venture, franchise, fiduciary, employment or agency relationship between the parties. Neither party has any express or implied authority to assume or create any obligations on behalf of the other or to bind the other to any contract, agreement, or undertaking with any third party. The Parties to this Agreement and their counsel have participated jointly in the negotation and drafting of this Agreement, and for all purposes this Agreement shall be deemed to have been drafted jointly by the Parties and their counsel.
Severability¶
If any provision of this Agreement is found to be invalid or unenforceable, then the remainder of this Agreement will have full force and effect, and the invalid or unenforceable provision will be modified, or partially enforced, to the maximum extent permitted to effectuate the origional objective.
Waiver¶
Failure by either party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the parties.
Termination¶
In the event that the Closing has not occured within sixty (60) calendar days following the Effective Date, either party may terminate this Agreement by written notice to the other party. In addition, in the event that Buyer shall become the subject of a voluntary or involuntary petition under federal or state bankruptcy or similar laws, including receivership or conservatorship, then this Agreement shall automatically terminate. Upon such automatic termination after Closing, Buyer shall either assign all its right, title and interest in the Assigned Patent Rights to Seller and shall take all such actions reasonably requred by Seller in connection therewith. The provisions of Sections 3.3,3.4,3.5,4.4,4.5 and 6 of this Agreement shall survive the termination of this Agreement.
Miscellaneous Items¶
This Agreement, including its exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof and merges and supersedes all prior agreements, understandings, negotiations, and discussions. Neither of the parties will be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein. The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. This Agreement is not intended to confer any right or benefit on any third party (including, but not limited to, any employee or beneficiary of any party), and no action may be commmenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement. No oral explanation or oral information by either party hereto will alter the meaning or interpretation of this Agreement. No amendments or modifications will be effective unless in a writing signed by authorized representitives of both parties. The terms and conditions of this Agreement will prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any letter, email or other communication or other writing not expressly incorporated into this Agreement. The following exhibits are attached hereto and incorporated herein: Exhibit A (entitled “Patents”), Exhibit B (entitled “Deliverables”) and Exhibit C (entitled “Assignment of Patent Rights”).
Counterparts¶
This Agreement may be executed in counterparts, each of which will be deemed an origional, and all of which together constitute one and the same instrument.