Common use of Mutual Covenant Not to Xxx Clause in Contracts

Mutual Covenant Not to Xxx. Each party (each, a “Covenantor”) covenants and agrees that it will not, for a period of three (3) years following the Distribution Date (the “Covenant Period”) Assert against the other party or any member of the JDSU Group or the Lumentum Group, as applicable (the other party and their respective group members each being a “Covenantee”) for damages, loss, or injury of any kind arising from, related to, or in any way connected to the Covenantor’s IPR as such IPR may apply in the Covenantee’s Excepted Field (“Covenant IPR”). Notwithstanding the foregoing, the covenant not to Assert in this Section shall cease to apply to a Covenantee if that Covenantee willfully infringes, misappropriates, or otherwise improperly uses the Covenant IPR. For the avoidance of doubt, Covenant IPR shall not include any IPR of any Transferee as contemplated in Section 9.2. Further, Covenantee’s rights under this Section 10.3 shall terminate effective upon consummation of a Transfer as contemplated in Section 9.2, except that the covenant not to Assert shall be binding on Covenantor with respect to any actions taken by Covenantee prior to the consummation of such Transfer. The mutual covenant of this section shall be personal to each party, and neither party shall assign, nor shall permit any of their respective group members to assign, to another person or entity an interest in any of the Covenant IPR with any rights to Assert unless such assignee agrees in writing to be bound by and subject to this Section 10.3 with respect to said IPR. This mutual covenant does not constitute or include a license, sale, lease, loan, or transfer of any Covenant IPR, in whole or in part, in any form. The parties acknowledge that the covenant of this section does not operate to release or otherwise discharge any Third Party from any claims, demands, or rights of action that one party may have on account of any unlicensed activities of any Third Party that may occur during the Covenant Period, and accordingly, do not limit or otherwise affect the ability of one party to collect the past damages that may be accrued during the Covenant Period from any Third Party. During the Covenant Period, each party will be free to assert claims of patent infringement against any Third Party and may seek to recover damages based on sales made by such Third Parties or other activities by such Third Parties occurring during the Covenant Period.