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END-USER LICENSE AGREEMENT FOR THE PUBLICLY AUCTIONED PATENT

BUYERS: INTELLECTUAL VENTURES & OTHERS REPORT


IMPORTANT - READ CAREFULLY: The 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 into as of
__________ (Effective Date) by ___________________ (Licensee), having an address at:
_____________ ____________________, and Avancept LLC (Avancept), having a place of
business at 7845 S. Memorial Drive, Ste. 8107, Tulsa, OK 74133.
WHEREAS, Avancept offers to license a report (the Report) describing aspects of
publicly auctioned patents to persons who agree to make Permissible Use of the Report.
WHEREAS, Licensee desires a license to the Report from Avancept to make only
Permissible Use of the Report; and
WHEREAS, Avancept and Licensee 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 Academic & Government Discount means a discounted price to the
Report for academic researchers and government employees. Avancept may request credentials
before agreeing to provide a discounted price to a prospective licensee. The decision as to who
is an academic researcher or a government employee lies solely within Avancepts discretion.
1.1.2 Derivative Works are revisions, improvements, alterations, adaptations,
modifications, translations, abridgments, expansions, or other forms of the Report made by any
party. See, also, Permissible Reports hereinbelow.
1.1.3 Effective Date means the date on which this Agreement has been signed
by both Licensee and Avancept using an Execution Method. 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.

1.1.4 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 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 online 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.
1.1.5 Impermissible Uses means uses, actions, and activities involving the
Report that are not Permissible Uses, and such impermissible 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, showing, 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 superset of the
Report (e.g., The Report plus 50 more patents or The Telecom Buyers). 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, co-workers (unless licensed under a Site License), and business partners
(unless licensed under a Site License). The Licensee agrees to provide his best efforts to
safeguard the Report from theft, disclosure 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.
1.1.6 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. Licensee
also includes any other persons who receive a copy of the Report by virtue of a Site License.
1.1.7

Licensing Fee means the license fee paid by Licensee for the Report.

1.1.8 Permissible Reports means documents produced by the Licensee using


information from the Report that satisfies either all of the criteria for an Internal Report or for an
Academic Report. Any report prepared by Licensee that does not satisfy all the criteria for either
an Internal Report or an Academic Report is an Impermissible Use. By way of example, a
Permissible Report could be an analysis of pricing data for patents in a particular technology
category prepared for a third-party client. As indicated below, a Permissible Report must not
compete against the Report. By way of example, an Impermissible Use would be a document,
even one for internal purposes, that avoids obtaining a license to a further Report. By way of
further example, any document prepared by Licensee for a client that identifies the buyers of 25
patents sold at auction would be per se Impermissible Use unless Licensee also obtained a
license to the Report for all recipients of such a document.

(a)
A permissible Internal Report must satisfy all of the following
criteria: (1) having a confidentiality requirement no less than that required of the Report herein,
(2) non-public and not offered in any way to the public, (3) prepared for internal purposes only
or prepared as a further study for a specific third-party client, (4) does not represent a
competitive product to the Report or other products provided by Avancept LLC, and (5) bears
the legend: Original data obtained from Tom Ewing, Avancept LLC in a font no smaller
than the font used in the body of the document, in bold type, and clearly visible.
(b)
A permissible Academic Report must satisfy all of the following
criteria: (1) be submitted only to a juried or peer-reviewed academic publication or submitted
only to an academic book publisher and provided to no other party, (2) include some original
research on the authors part, (3) include more than a verbatim reproduction of the Report or a
significant portion thereof, (4) contain no disclosure of the information in the appendices of the
Report, (5) not represent a competitive product to the Report or other products provided by
Avancept LLC, and (6) bearing the legend: The author thanks and acknowledges the
assistance of Tom Ewing from Avancept LLC in the preparation of this report in a font no
smaller than the font used in the body of the document and in a clearly visible location. The
intention of this Academic Report provision is that the Licensee will add to the body of scientific
knowledge in a serious manner through, for example, a publication in a journal having a
significant Impact Factor, or similar measure of significance. All such Academic Reports will be
submitted to Avancept LLC at the address provided herein concurrently with submission to the
academic publication or academic book publisher and identify the journal or publisher to whom
the report has been submitted.
1.1.9 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 the 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. The
Licensee is welcome to conduct his own investigation to satisfy himself of the accuracy of the
Report. The Licensee is welcome to prepare Permissible Reports. But the Licensee may not
forward the Report, or a subset of the Report, to any party who is not also a Licensee. The
Licensee must purchase a license to the Report for any third party who would need to review the
Report in order to understand the Licensees own report (see, Permissible Reports above).
Likewise, the Licensee may not enter into the business of selling or giving away copies of the
Report. (Avancept is pleased to consider proposals from prospective value added resellers, but it
is under no obligation to accept such proposals.) Permissible Use also pertains to the number of
copies that the Licensee may maintain. The Licensee may install, use, access, display and run no
more copies of the Report than Licensees license allows. Should Licensee accidentally lose
Licensees copy of the Report, Licensee may contact Avancept for another copy of the Report.
Licensee may print only one copy of the Report.
1.1.10 Report means Publicly Auctioned Patent Buyers: Intellectual Ventures
& Others. The Report describes aspects of various public patent auctions conducted from
Spring 2006-Spring 2009 and attempts to identify the buyers of the auctioned patents. The
Report and all copies of it are owned by Avancept LLC.
1.1.11 Site License means that Licensee has paid for the right to possess more
than a single copy of the Report. The number of copies that the Licensee is entitled to obtain is
identified in the Grant of License, Section 2.0. Site license copies must remain within the
Licensees establishment and under no circumstances may Licensee show or provide the Report

to an unlicensed party, including unlicensed parties within the Licensees own establishment.
The Licensee will be responsible for unauthorized disclosures.
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 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

Copies. The Licensee has or will tender payment of the fee for:
Select One:
A. A Single Report License. This entitles the Licensee to possess no more
than one copy of the Report, subject to all the terms and conditions herein.
B. A 5-Copy Site License. This entitles the Licensee to possess no more
than five copies of the Report for internal use within the Licensees business
establishment, subject to all the terms and conditions herein.
C. An Unlimited Copy Site License. This entitles the Licensee to possess
an unlimited number of Report copies for internal use within the Licensees
business establishment, subject to all the terms and conditions herein.

2.3
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.
2.4
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 and 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.
LICENSEE ACKNOWLEDGES THAT THE REPORT HAS NOT BEEN
PREPARED WITH THE INTENT OF PROVIDING A DEFINITIVE LIST OF
THE BUYERS OF THE PATENTS SOLD AT AUCTION.

3.3

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.

3.4

LICENSEE WILL MAKE ONLY PERMISSIBLE USE OF THE REPORT AND


WILL NOT MAKE IMPERMISSIBLE USE OF THE REPORT.

3.5

LICENSEE WILL NOT PRODUCE DERIVATIVE WORKS OF THE REPORT.


Licensee will produce only Permissible Reports, if at all, and all such produced
Permissible Reports will satisfy all the criteria provided for such reports as set
forth hereinabove.

3.6

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. If licensee
receives a request from a court of competent jurisdiction or other government
authority, prior to disclosure of the Report, Licensee will first obtain a protective
order, or other similar restriction, to keep the Report limited to the attorneys and
court or government officials involved, and otherwise avoid public disclosure of
and access to the Report. Licensee will promptly notify Avancept of all such
requests for assistance from third parties regarding the Report.

3.7

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.

3.8

If Licensee has obtained a Site License, Licensee will use his best efforts to make
sure that no more copies of the Report are made than are permitted under the
License obtained by Licensee, and Licensee will also use his best efforts to keep
all copies of the Report from being provided or shown to unlicensed and/or
unauthorized parties. Licensee will instruct all authorized recipients of the Report
under a Site License regarding their duties and obligations regarding Permissible
Uses and Impermissible Uses. Licensee accepts responsibility for any
Impermissible Use(s) and/or Derivative Works made by recipients of the Report
under a Site License.

3.9

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

4.

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

If Licensee has obtained the Report using an Academic & Government Discount,
then Licensee represents and warrants that he is entitled to such a discount on the
basis of academic and/or government employment.

3.13

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.)

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 provides a good faith representation of the buyers associated with 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 DISCLAIMS
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 PROVIDES THE
REPORT AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIMS 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 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 unauthorized 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 AN IMPERMISSIBLE REPORT TO THE 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 auction
data derived from this Report 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;
EXCLUDED FROM THIS LIMITATION ARE 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; EXCLUDED FROM THIS LIMITATION ARE 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 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 acquirer 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.

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). 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 enforcing 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 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 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.
10.11 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.
10.12 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.
10.13 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.

10.14 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 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: _____________________________x
Title: _____________________________X
Date: _____________________________X
LICENSEE:
By:

_____________________________

Name: _____________________________x
Title: _____________________________X
E-mail:_____________________________X
Date: _____________________________X