EULA Version 1.

2
Confidential

END-USER LICENSE AGREEMENT FOR THE INTELLECTUAL VENTURES IP

PORTFOLIO REPORT (VERSION 1.0)
IMPORTANT - READ CAREFULLY: This following Agreement is a legal agreement
between You and Avancept LLC. This Agreement is valid and grants You rights ONLY if
You have obtained the Report legitimately and only for so long as You adhere to the terms of
the Agreement. If You suspect that Your copy of the Report may not have been legitimately
obtained, then You are requested to contact Avancept directly so that legitimacy of your copy
of the Report may be verified. YOU MUST AGREE TO BE BOUND BY THE TERMS OF
THIS AGREEMENT AND TENDER PAYMENT FOR THE REPORT LICENSE BEFORE
YOU ARE ENTITLED TO RECEIVE A COPY OF THE REPORT. IF YOU DO NOT
AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT OBTAIN,
RECEIVE, OR USE THE REPORT.
THIS LICENSE AGREEMENT (the Agreement) is made and entered into as of
_______________ (Effective Date) by [___________________________] (Licensee),
having an address at: [___________________________________________], and Avancept
LLC (Avancept), having a place of business at 5722 E. 110th Street, Tulsa, OK 74137
USA.
WHEREAS, Avancept offers to license a report (the Report) describing the
intellectual property portfolio of a company called Intellectual Ventures LLC to persons who
agree to make Permissible Use of the Report.
WHEREAS, Licensee desires a license to the Report from Avancept to make
Permissible Use only of the Report; and
WHEREAS, Avancept and Licensee and agree that Avancepts ability to offer the
Report to the public depends upon all Parties using the Report only for Permissible Uses and
not for any Impermissible Uses.
NOW, THEREFORE, in consideration of the above promises and the mutual
covenants contained herein and other good and valuable consideration, the parties hereto
hereby agree as follows.
1.

DEFINITIONS AND RULES OF CONSTRUCTION

1.1
Definitions. In addition to the other capitalized terms defined elsewhere in
this Agreement, the following terms shall have the meanings set forth below:
1.1.1 Derivative Works are revisions, improvements, alterations,
adaptations, modifications, translations, abridgments, expansions, or other forms of the
Report made by any party.
1.1.2 Effective Date means the date on which this Agreement has been
signed by both Licensee and Avancept. Additional evidence for determining the Effective
Date shall include the date upon which the Licensee receives the Report from Avancept
and/or the date upon which the Licensee pays the Licensing Fee.
1.1.3 Execution Method means the method by which the Licensee accepts
this Agreement. The Licensee may return a signed copy of this Agreement to Avancept. In
such cases, Avancept will then mail, or otherwise provide, a copy of the Report to the
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Licensee, provided the Licensee has also tendered the Licensing Fee. On-line transactions
may require the Licensee to indicate acceptance of this Agreement by means other than by
signature. In an on-line transaction, the Licensee will indicate acceptance of the Agreement
by causing a computing system to insert a unique transaction code into this Agreement. This
transaction code will stand in place of the Licensees signature and indicate acceptance and
adherence to the terms and conditions set forth herein. Avancept will forward a copy of this
Agreement and the transaction code to the Licensee at the electronic mail address provided
by the Licensee. Licensees acceptance of this Agreement may also be shown by the
Licensees behavior, such as by accepting a copy of the Report and by completion of the
licensing process.
1.1.4 Impermissible Uses means uses, actions, and activities involving the
Report that are not Permissible Uses, such actions are outside the scope of the license granted
herein, placing the Licensee in breach of the Agreement, causing immediate forfeiture of the
license provided herein, and creating a strong risk of legal action. Impermissible Uses
include but are not limited to: selling, offering to sell, re-selling, licensing, trading, loaning,
lending, sharing, bartering, forwarding, wagering, donating, giving away, abandoning, or
otherwise transferring the Licensees copy of the Report to a third party. The Licensee may
not produce or develop a smaller version of the Report or create a supraset of the Report (e.g.,
The Report plus 50 more patents). Thus, the Licensee agrees to forego any activity
involving the Report except for those specifically enumerated as Permissible Uses. The
Licensee may not make copies of the Report for any other party, including clients, coworkers, and business partners But please note that site licenses of the Report are available.
The Licensee agrees to provide his best efforts to safeguard the Report from theft or
unauthorized reproduction. The Licensee agrees to notify Avancept immediately upon the
occurrence or suspected occurrence of a theft or unauthorized reproduction of the Report.
The Licensees failure to timely notify Avancept of such unauthorized reproduction or theft
will render Licensee liable for all damages incurred. If Licensee has clients, the Licensees
clients are welcomed and encouraged to purchase their own copy of the Report.
1.1.5 Licensee means the person who agrees to be bound by this
Agreement, pay the licensing fee for the Report, and use the Report for Permissible Uses
ONLY.
1.1.6

Licensing Fee means the license fee paid by Licensee for the

Report.
1.1.7 Permissible Uses means the uses to which the Licensee may use the
Report without being in breach of the Agreement and forfeiture of the license grant herein.
Licensees may study the Report and may investigate further information included in the
Report, e.g., a detailed study of a specific patent or group of patents included in the Report.
The Licensee is welcome to study the patents and other information included in the Report
and to produce confidential documents, such as attorney-client privileged documents about
information contained in the Report for third-party clients. Licensee is welcome to conduct
his own investigation to satisfy himself of the accuracy of the Report. But the Licensee may
not forward the Report, or a subset of the Report, to any Party. Consequently, the Licensee is
encouraged to purchase a license to the Report for any third party who may need to review
the Report in order to have a better understanding of the Licensees own report. Likewise,
the Licensee may not enter into the business of selling or giving away copies of the Report to
the general public. Similarly, Permissible Use also pertains to the number of copies that the
Licensee may maintain. The Licensee may install, use, access, display and run one copy of
the Report. Should Licensee accidentally lose Licensees copy of the Report, Licensee may
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contact Avancept for another copy of the Report. Licensee may print only one copy of the
Report.
1.1.8 Report means The Intellectual Ventures IP Portfolio in the United
States version 1.0. The Report, completed in July 2007, describes aspects of the intellectual
property portfolio of a company located in Bellevue, Washington doing business as
Intellectual Ventures, LLC. The Report and all copies of it are owned by Avancept LLC.
1.2
Rules of Construction. The definitions in this Agreement shall apply equally
to both the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and neutral forms.
The words include, includes, and including shall be deemed to be followed by the
phrase without limitation unless the context shall require otherwise. The words herein,
hereof, and hereunder and words of similar import refer to the Agreement in its entirety
and not to any part hereof unless the context shall require otherwise. All references herein to
Articles and Sections shall be deemed references to Articles and Sections of this Agreement
unless the context shall otherwise require.
2.

GRANT OF LICENSE
2.1
License. Subject to the terms and conditions herein, Avancept grants Licensee
a non-exclusive license to the Licensee to possess a single copy of the Report for the
sole purpose of using the Report for Permissible Uses. Avancepts grant extends only
to Licensees who have executed this Agreement and tendered payment of the
Licensing Fee.
2.2
No Report Modifications. The Licensee has absolutely no right to change,
modify, or amend the Report, produce a shorter version of the Report, or produce a
longer version of the Report. The Licensee may make only Permissible Use of the
Report. The Licensee has no right to produce Derivative Works of the Report.
2.3
Reservation of Rights. The Licensee shall not exceed the scope of the limited
license granted in this Section 2.0. The Report is protected by copyright and other
intellectual property laws and treaties. The Report is owned by Avancept LLC, and
the Parties herein agree that Avancept maintains ownership of the Report and its
intellectual property, however arising, and, nothing in this Agreement shall be
construed as granting Licensee any assignment or other rights in or to Avancepts
intellectual property, and any and all implied licenses are hereby disclaimed. The
Report is licensed, not sold.

3.

REPRESENTATIONS, WARRANTIES AND COVENANTS OF LICENSEE

Licensee represents, warrants, and covenants to Avancept that:
3.1

Licensee has all requisite legal right, power and authority to execute, deliver
and perform this Agreement. For example, Licensee is over 21 years of age,
or not otherwise under any legal disability or contractual obligation that would
prohibit him/her from entering into this Agreement.

3.2

LICENSEE WILL NOT RELY SOLELY UPON THIS REPORT FOR ANY
PURPOSE. THE LICENSEE WILL CONDUCT HIS/HER OWN
INVESTIGATION OF THE REPORTS CONTENTS AS NECESSARY.
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LICENSEE ACKNOWLEDGES THAT THE REPORT HAS NOT BEEN

PREPARED WITH THE INTENT OF PROVIDING A DEFINITIVE LIST
OF THE PORTFOLIO HELD BY THE SUBJECT OF THE REPORT.
3.3

LICENSEE DOES NOT PRESENTLY POSSESS A LIST COMPRISING 60

OR MORE US PATENTS PURPORTEDLY OWNED OR CONTROLLED
BY INTELLECTUAL VENTURES. (The Report is licensable to parties
having lists of IV patents but not by this Agreement. Please contact
Avancept.)

3.4

LICENSEE WILL NOT SELL, OFFER TO SELL, RESELL, LICENSE,

TRADE, LOAN, LEND, SHARE, BARTER, FORWARD, WAGER,
DONATE, GIVE AWAY, ABANDON, OR OTHERWISE TRANSFER THE
REPORT TO ANOTHER PARTY.

3.5

LICENSEE WILL NOT PRODUCE DERIVATIVE WORKS OF THE

REPORT.

3.6

LICENSEE WILL MAKE ONLY PERMISSIBLE USE OF THE REPORT

AND WILL NOT MAKE IMPERMISSIBLE USE OF THE REPORT.

3.7

Licensee will not assist any third party in any activities related to the Report,
unless such activities are so ordered by a court of competent jurisdiction or
other government authority, or as otherwise required by applicable law.
Licensee will promptly notify Avancept of all such requests for assistance
from third parties regarding the Report.

3.8

Licensee will use its best efforts to protect the Report from theft or
unauthorized disclosure. Licensee will notify Avancept within 48 hours of
any theft or suspected unauthorized disclosure and will cooperate fully with
Avancept in investigating such theft or unauthorized disclosure.

3.9

Licensee will not alter the Report to remove or obscure any security
information that has been placed on the Report.

3.10

Licensee will destroy the Report when its use is no longer required.

3.11

Licensee is not an employee of Intellectual Ventures or any of its affiliates or

affiliated companies. (The Report is licensable to IV and related entities but
not by this Agreement. Please contact Avancept.)

3.12

Licensee accepts and agrees that in an on-line transaction, Licensee will

indicate acceptance of this Agreement by causing a computing system to insert
a unique transaction code into this Agreement. Licensee accepts and agrees
that this transaction code will stand in place of the Licensees signature and
indicate acceptance and adherence to the terms and conditions set forth herein.
Licensee agrees that acceptance of this Agreement may also be shown by the
Licensees behavior, such as by accepting a copy of the Report and by
completion of the licensing process. Licensee understands that Licensee may
indicate acceptance of this Agreement by returning a signed copy of this
Agreement to Avancept. However, in such cases, the Licensee will not
receive a copy of the Report until Avancept receives the executed Agreement
and the Licensing Fee. (Please contact Avancept in order to obtain a copy of
this Agreement by mail.)
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4.

REPRESENTATIONS, WARRANTIES AND COVENANTS OF AVANCEPT

Avancept represents, warrants and covenants to Licensee that:

4.1
Avancept have all requisite legal right, power and authority to execute, deliver
and perform this Agreement.
4.2
To Avancepts knowledge, the Report has been prepared using publicly
available information and is a representation of a subset of the portfolio held by the subject
matter of the Report. NO WARRANTY OR REPRESENTATION IS GIVEN AS TO THE
ACCURACY OF THE REPORT AND ANY SUCH EXPRESS OR IMPLIED WARRANTY
OR REPRESENTATION IS HEREBY SPECIFICALLY EXCLUDED TO THE
MAXIMUM EXTENT PERMITTED BY LAW.
4.3
LIMITED WARRANTY. AVANCEPT WARRANTS THAT LICENSEE
HAS AN IMPLIED WARRANTY OR CONDITION, BUT ONLY AS TO PHYSICAL
DEFECTS DISCOVERED IN THE PHYSICAL MEDIA OF THE REPORT ITSELF
DURING THE LICENSEES FIRST NINETY (90) DAYS OF POSSESSING THE
REPORT. AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY-DAY PERIOD,
THERE IS NO WARRANTY OR CONDITION OF ANY KIND. LICENSEES
EXCLUSIVE REMEDY: AVANCEPT ENTIRE LIABILITY AND LICENSEES
EXCLUSIVE REMEDY FOR ANY BREACH OF THIS LIMITED WARRANTY OR FOR
ANY OTHER BREACH OF THIS AGREEMENT OR FOR ANY OTHER LIABILITY
RELATING TO THE REPORT SHALL BE, AT AVANCEPTS OPTION FROM TIME TO
TIME EXERCISED SUBJECT TO APPLICABLE LAW, (A) RETURN OF THE AMOUNT
PAID FOR THE REPORT IN ACCORDANCE WITH AVANCEPTS RETURN
POLICIES, OR (B) REPAIR OR REPLACEMENT OF THE REPORT THAT DOES NOT
MEET THIS LIMITED WARRANTY AND THAT IS RETURNED TO AVANCEPT
WITH A COPY OF THIS LICENSE AGREEMENT. LICENSEE WILL RECEIVE THE
REMEDY ELECTED BY AVANCEPT WITHOUT CHARGE. THIS LIMITED
WARRANTY IS VOID IF FAILURE OF THE REPORTS PHYSICAL MEDIA HAS
RESULTED FROM ACCIDENT, ABUSE, MISAPPLICATION, ABNORMAL USE OR A
VIRUS. ANY REPLACEMENT REPORT WILL BE WARRANTED FOR THE
REMAINDER OF THE ORIGINAL WARRANTY PERIOD OR THIRTY (30) DAYS,
WHICHEVER IS LONGER, AND AVANCEPT WILL USE COMMERCIALLY
REASONABLE EFFORTS TO PROVIDE THE LICENSEES REMEDY WITHIN A
COMMERCIALLY REASONABLE TIME.
4.4
DISCLAIMER OF WARRANTIES. THE LIMITED WARRANTY THAT
APPEARS IN SECTION 4.3 ABOVE IS THE ONLY EXPRESS WARRANTY MADE TO
LICENSEE AND IS PROVIDED IN LIEU OF ANY OTHER EXPRESS WARRANTIES
OR SIMILAR OBLIGATIONS (IF ANY) CREATED BY ANY ADVERTISING,
DOCUMENTATION, PACKAGING, OR OTHER COMMUNICATIONS. EXCEPT AS
OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, AVANCEPT DISCLAIM
ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR
PURPOSE. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 4.3 AND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AVANCEPT PROVIDE
THE REPORT AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL
OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED
WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS
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FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF

ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF
WORKMANLIKE EFFORT, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD
TO THE REPORT. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET
ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR
NON-INFRINGEMENT WITH REGARD TO THE REPORT.
5.

MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS

5.1
Exclusion of Other Warranties. Other than the expressed warranties of
Sections 3 and 4 there are no other warranties, expressed or implied. AS STATED ABOVE,
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE REPORT IS
PROVIDED AS IS AND WITH ALL FAULTS. ALL OTHER DISCLAIMERS,
LIMITATION OF DAMAGES, AND SPECIAL PROVISIONS PROVIDED HEREIN
SHALL APPLY TO THE REPORT.
6.

INJUNCTIVE RELIEF; ATTORNEYS FEES

The Parties agree and acknowledge that any breach by Licensee, or any other
misappropriation or misuse by the Licensee, such as Licensees Impermissible Use or
creation of Derivative Works, would cause Avancept injury for which monetary damages
would not be an adequate remedy. Accordingly, in the event of such a breach or threatened
breach, the injured party shall be entitled to apply for injunctive relief in any court of
competent jurisdiction, without bond, without prejudice to the other remedies available to
such party for such breach or threatened breach. In the event that the Licensee, breaches the
covenants set forth in Section 3, the non-breaching party shall be entitled to recover the
reasonable attorneys fees incurred by such non-breaching party in the defense of any
litigation brought in breach of such covenant in the event that such non-breaching party is the
prevailing party in such litigation.
7.

TERM AND TERMINATION

7.1

Term. This Agreement shall become effective as of the Effective Date and remain in
effect perpetually after the Effective Date unless earlier terminated pursuant to
Section 7.2.

7.2

Termination Events. This Agreement may not be terminated for any reason by any
Party, except:
(a)

upon the mutual written agreement of the Parties.

(b)
immediately upon Licensees Impermissible Use or creation of a Derivative
Work. In such event, Licensee must destroy all copies of the Report and any Derivative
Works produced.
(c)
immediately upon Licensees attempt to provide unauthorized access to or
distribution of the Report to any third party. In such event, Licensee must destroy all copies
of the Report.
(d)
IMMEDIATELY UPON LICENSEES OFFERING TO SELL, LICENSE,
GIVE AWAY, OR OTHERWISE PROVIDE A REPORT OF ANY KIND (AN
IMPERMISSIBLE REPORT) ABOUT INTELLECTUAL VENTURES TO THE
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GENERAL PUBLIC. IN SUCH EVENT, LICENSEE MUST DESTROY ALL COPIES OF

BOTH THE REPORT AND THE IMPERMISSIBLE REPORT.
(e)
immediately upon Licensees selling, offer to sell, resell, license, trade, loan,
lend, share, barter, forward, wager, donate, give away, abandon, or otherwise provide a list of
Intellectual Ventures patents to any party. In such event, Licensee must destroy all copies of
the Report.
(f)
without prejudice to any other rights, Avancept may terminate this Agreement
immediately if Licensee fails to comply with the terms and conditions of this Agreement. In
such event, Licensee must destroy all copies of the Report.
(g)
immediately upon order from a court of competent jurisdiction. In such event,
Licensee must destroy all copies of the Report or otherwise follow the orders made by such
court.
7.3

Survival. Upon the termination or expiration of this Agreement for any reason, all
licenses and rights granted to Licensee and obligations of Avancept under this
Agreement shall immediately cease. Sections 3, 4.3, 4.4, 6, 9, 10 and this Section 7.3
shall survive any termination of this Agreement.

8.

PRIVACY NOTICE. Avancept will collect the names and identities of all
Licensees. Each copy of the Report will be tailored for each Licensee and include
unique security features. Having the precise identity of the Licensee is needed in
order to protect against unauthorized and unlawful distribution of the Report.
LICENSEE AGREES TO HAVE THE REPORT TAILORED TO INCLUDE
LICENSEES NAME. Licensee agrees that Avancept may use the Licensees identity
in order to contact the Licensee about other products and services that may be of
interest to the Licensee. The Licensee may opt out of such solicitations by contacting
Avancept and asking to be removed from any mailing list.

9.
LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE
HEREUNDER TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, ARISING UNDER THIS AGREEMENT
ITSELF, EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE,
EXCLUDING FROM THIS LIMITATION ANY AND ALL DAMAGES ARISING FROM
IMPERMISSIBLE USE OR FROM THE CREATION OF DERIVATIVE WORKS. THESE
LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE,
INCLUDING BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY,
INFRINGEMENT, AND OTHER TORTS, LOSS OF PROFIT, LOSS OF BUSINESS,
LOSS OF SAVINGS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR
BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY,
FOR FAILURE TO MEET ANY DUTY OF GOOD FAITH OR OF REASONABLE CARE,
FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS
WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR
INABILITY TO USE THE REPORT OR OTHER LOSS, EXCLUDING FROM THIS
LIMITATION ANY AND ALL CAUSES OF ACTION RELATED TO IMPERMISSIBLE
USE OR THE CREATION OF DERIVATIVE WORKS. THE ENTIRE LIABILITY OF
AVANCEPT UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED
TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE REPORT. THE
FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY
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REMEDY FAILS ITS ESSENTIAL PURPOSE. MOREOVER, AVANCEPT RESERVES

THE RIGHT TO DISCONTINUE SALE AND SUPPORT OF THE REPORT AT ANY
TIME AND WITHOUT NOTICE.
10.

MISCELLANEOUS PROVISIONS

10.1

Assignment and Binding Effect. Neither Party may assign any rights or delegate any
duties under this Agreement to any third party, without the prior written consent of
the other Party hereto, and any attempted assignment without such consent shall be
null and void. Notwithstanding the foregoing, Avancept may assign its rights or
delegate its duties under this Agreement in whole or in part to (i) an acquiror of all or
substantially all of the equity or assets of the business of such party to which this
Agreement relates or (ii) the surviving entity in any merger, consolidation, equity
exchange or reorganization involving such party or (iii) an acquirer of all or
substantially all the rights to the IV report. All license rights and covenants contained
herein shall be binding on any successors-in-interest or assigns thereof. This
Agreement shall be binding upon, inure to the benefit of and be enforceable by the
Parties and their successors and permitted assigns.

10.2

Relationship. Nothing in this Agreement shall be considered to create a principal

agent relationship, partnership, employer-employee relationship or joint venture.
Neither Party shall incur any debts or make any commitments for the other.

10.3

Entire Agreement; Modifications; Waiver. This Agreement constitutes and contains

the entire agreement between the Parties, and supersedes any and all prior agreements,
representations, negotiations, conversations, correspondence, understandings, and
letters, whether oral or written, of any kind or nature, respecting the subject matter
hereof. This Agreement may be amended, or modified or one or more provisions
hereof waived, only by a written instrument signed by the Parties. No delay or
omission by either Party in exercising any right or power arising from any breach by
the other Party shall be construed as a waiver of such breach, nor shall any single or
partial exercise thereof preclude any further exercise thereof or the exercise of any
other right or power arising from any breach by a Party. No waiver of any breach of
any provision shall be construed to be a waiver of or consent to any previous or
subsequent breach of the same or any other provision.

10.4

Severability. To the extent that any term or condition of this Agreement is held to be
invalid, illegal or otherwise unenforceable by a court or arbitrator(s) of competent
jurisdiction under applicable law, then such term or condition shall be deemed
amended only to the minimum extent necessary to render such term or condition
enforceable under applicable law, preserving to the fullest extent possible the intent
and agreements of the parties set forth herein, and the remaining terms and conditions
of this Agreement shall in no way be affected or impaired thereby. In the event that
such term or condition cannot be so amended as to be enforceable under applicable
law, then such term or condition shall be deemed excluded from this Agreement and
the other terms or conditions hereof shall remain in full force and effect as if such
unenforceable term or condition had not been included herein.

10.5

Notices. Except where otherwise specified herein, all notices required or permitted to
be given hereunder shall be in writing and shall be delivered (i) by hand, (ii) by
prepaid, internationally-recognized, overnight air courier, or (iii) by confirmed
electronic copy (provided that such notice is preceded by either of (i) (ii) above).
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Certain informational notices may be provided by electronic mail, such as providing

the Licensee with the transaction code for this Agreement. All notices shall be
addressed as follows:
If to Avancept:
Avancept LLC
5722 E. 110th Street
Tulsa, Oklahoma
USA 74137
Attention: Legal Department
If to Licensee:
__________________________
__________________________
__________________________
10.6

Applicable Law. This Agreement shall be governed by and construed in accordance

with the laws of the State of California, without regard to principles of conflicts of
law.

10.7

Arbitration. If the Parties are unable to resolve any dispute, controversy or claim
arising out of or relating to the terms and conditions of this Agreement, or the
performance thereof, any Party may make a written demand to the other Party for
formal dispute resolution pursuant to the JAMS Comprehensive Arbitration Rules and
Procedures and Optional Appeal Procedure (Rules), which shall constitute the
exclusive forum for the adjudication of all disputes arising hereunder (except for the
right of either party to seek preliminary relief from a court to avoid irreparable injury
pending the outcome of an arbitration). If the Parties agree on one independent
arbitrator, such arbitrator will conduct the arbitration. If any Party fails to select an
arbitrator within sixty (60) days after notice of such failure from any other Party or
JAMS, then JAMS will appoint such arbitrator. The selected arbitrator shall have at
least 10 (ten) years of licensing-related experience, and preferably some knowledge of
the intellectual property reports business. The arbitration hearing will be held in the
County of San Francisco, State of California unless another location is agreed to by
the Parties. The arbitrator may modify JAMS rules as procedures, as necessary, in
order to comply with the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, also known as the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards. The costs of the arbitration, excluding
attorneys fees and expert witness fees, will be paid by the losing Party. Each Party
shall bear its own attorneys fees, litigation costs and expenses of any kind in the
arbitration; provided, however, that either Party may seek the award of, and the
arbitrators have the power to award, specific performance, other equitable relief,
compensatory damages and other out-of-pocket costs and expenses. Subject to the
Optional Appeal Procedure, the award of the arbitrators will be final and binding upon
the Parties and any of the Parties may enforce it in accordance with Section 10.8. The
Parties further agree that the provisions of this Section 10.7 may be enforced by any
of the Parties in accordance with Section 10.8.

10.8

Jurisdiction and Venue. Any action or proceeding between the parties hereunder,
including to enforce any award of the arbitrators pursuant to Section 10.7 or the
provisions set forth in Section 10.7, and any action for preliminary relief, shall be
brought exclusively in the courts of San Francisco, California. The Parties consent
specifically to the personal jurisdiction of such California courts and irrevocably
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waive their right to contest venue in any such courts. Nothing in this Agreement shall
limit or prevent a party from enforcing an arbitration award under this Agreement in
any other court of competent jurisdiction. Jurisdiction and venue for any actions
instituted to prevent unauthorized or illegal copyright infringement, Impermissible
Use, or Derivative Works will be the courts of San Francisco, Calif., and the Parties
consent specifically to personal jurisdiction of such courts and irrevocably waive their
right to contest venue in any such courts.
10.9

Trademarks. This Agreement does not grant Licensee any rights in connection with
any trademarks or service marks of Avancept or any other party.

10.10 Confidentiality. The Parties shall keep the existence and terms and conditions of this
Agreement strictly confidential and no Party shall now or hereafter disclose such
terms and conditions to any third party except: (i) with the prior written consent of
the other Party, (ii) as may be required by applicable law, regulation or order of a
governmental authority of competent jurisdiction, or (iii) in confidence to the
professional legal counsel and financial advisers representing such Party. With
respect to the foregoing (ii), such disclosing Party shall, to the extent legally
permissible, provide the other Party with prior written notice of such applicable law,
regulation or order and, at the request of the other Party, use reasonable efforts to
limit the disclosure of the terms and conditions of this Agreement and to obtain a
protective order or other confidential treatment.
10.11 Compliance with Laws. Notwithstanding anything to the contrary contained in this
Agreement, the obligations of the Parties hereto shall be subject to all laws,
regulations, orders, directions or requests of any governmental authority having
jurisdiction over the Parties hereto.
10.12 Headings. The headings and captions are inserted for convenience of reference only
and are not intended to be a part of or to affect the meaning or interpretation of this
Agreement.
10.13 No Additional Representations. Each of the Parties has entered into this agreement
based on its own investigation of the facts and circumstances and its own business
judgment. Neither Party has relied upon any representation of the other Party in
entering this Agreement except for those expressly set forth herein. Each of the
Parties expressly waives and disclaims any representation made prior to the date of
this Agreement by it or any other Party.
10.14 Construction and Voluntary Execution. Regardless of which Party may have drafted
this Agreement or any part thereof, no rule of strict construction shall be applied
against either Party. This Agreement is executed voluntarily be each of the Parties
hereto without any duress or undue influence on the part of any of them. The Parties
acknowledge that they have read and fully understand the provisions of the
Agreement and have relied on the advice and representation of legal counsel of their
own choosing.
10.15 Counterparts and Execution Method. This Agreement may be executed in one or
more counterparts, by facsimile transmission, and by on-line transmission, each of
which will be deemed to be an original, but all of which together will constitute one
and the same instrument. In an on-line transmission, the Execution Method may
require the Licensee to indicate his acceptance of the Agreement by means other than
by signature, such as by causing a computing system to insert a unique transaction
Page 10 of 11

EULA Version 1.2

Confidential

code that will be inserted into this Agreement. Avancept will forward this transaction
code to the Licensee, such as to the electronic mail address provided by the Licensee.
Licensees acceptance of this Agreement may also be shown by the Licensees
behavior, such as by accepting a copy of the Report and by completion of the
licensing process.
IN WITNESS WHEREOF, the Parties have caused their duly authorized officers to execute
this Agreement as of the Effective Date.
AVANCEPT LLC
By:

____________________________

Name:

Title: ____________________________X
Date: ____________________________X
LICENSEE
By:

___________________________

Name:

___________________________

Address: ___________________________
Date:

___________________________

Page 11 of 11