JOINT VENTURE AND SERVICES AGREEMENT
Exhibit 6.7
This
JOINT VENTURE AND SERVICES AGREEMENT (this “Agreement”) is
made as of January 10, 2018, by and between Acacia Research
Corporation, a Delaware corporation (“Acacia”), and Bitzumi, Inc., a Delaware
corporation (“Bitzumi” and, together with Acacia, the
“Parties”).
WHEREAS, Acacia,
through its wholly and majority- owned and controlled operating
subsidiaries, invests in, licenses and enforces patented
technologies; and
WHEREAS, Bitzumi
and Acacia desire to create a joint venture to apply Acacia’s
and its Affiliates’ (as defined herein) legal and
technological expertise to develop and create a patent related
platform utilizing blockchain technology as set forth on Exhibit A
hereto; and
WHEREAS, in
connection with the joint venture, Acacia shall assist Bitzumi in
identifying, acquiring, registering, monetizing and enforcing
Intellectual Property (as defined herein) assets, upon the terms
and subject to the conditions set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parties hereto agree as follows:
1. DEFINITIONS;
INTERPRETATION
1.1 Definitions. The following terms shall
have the respective meanings set out below and grammatical
variations of such terms shall have corresponding
meanings:
“Affiliate-
shall mean, when used with respect to any Person, another Person
that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with such
Person. For the purposes of this definition, “control”, when used with
respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the
ownership of voting securities or other interests, by contract or
otherwise.
“Business Day” shall mean
any day that is not a Saturday, a Sunday or any other day on which
banks are required or authorized by Law to be closed in New York or
California.
“Costs and Expenses” has
the meaning set forth in Section 4.2.
“Governmental
Authority-
shall mean any foreign, federal, state or local court,
administrative agency, official board, bureau, governmental or
quasi-governmental entities having competent jurisdiction over
Acacia, Bitzumi or any of their respective Subsidiaries, and any
other tribunal or commission or other governmental department,
authority or instrumentality or any subdivision, agency, mediator,
commission or authority of competent jurisdiction.
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“Intellectual Property”
means, collectively, any U.S. and non-U.S. issued, registered,
unregistered and pending: (i) patents and patent applications
(including any divisionals, continuations, continuations-in-part,
reissues, renewals, re-examinations, extensions, provisional and
applications for any of the foregoing), inventor’s
certificates, utility model rights and similar rights, ▇▇▇▇▇
patents and applications therefor; (ii) works of authorship, mask
works, copyrights, and copyright and mask work registrations and
applications for registration; (iii) trademarks and service marks
(including those which are protected without registration due to
their well-known status), trade names, corporate names, domain
names, logos, slogans, taglines, trade dress, general intangibles
of like nature, and other indicia of source, origin, endorsement,
sponsorship or certification, designs, industrial designs, product
packaging shape, and other elements of product and product
packaging appearance together with all registrations and
applications for registration of any of the foregoing and all
goodwill related to any of the foregoing; (iv) unpatented inventions (whether or
not patentable), trade secrets under applicable law, know-how and
confidential or proprietary information, including (in whatever
form or medium), discoveries, ideas, compositions, rights in
software (including all source and object code related thereto),
computer software documentation, database, drawings, designs,
plans, proposals, specifications, photographs, samples, models,
processes, procedures, data, information, manuals, reports,
financial, marketing and business data, pricing and cost
information, correspondence and notes; (v) all claims and rights
related to any of the foregoing; and (vi) all other intellectual
property or proprietary rights.
“Law” will mean any
federal, state, local or foreign law (including common law),
statute, code, ordinance, rule, regulation, agency requirement, or
treaty of any Governmental Authority.
“Materials” has the meaning
set forth in Section 11.1.
“Party” has the meaning set
forth in the preamble.
“Person” or
“person” means a natural person, corporation,
company, joint venture, individual business trust, trust
association, partnership, limited partnership, limited liability
company or other entity, including a Governmental
Authority.
“Providing Party” has the
meaning set forth in Section 8.
“Receiving Party” has the
meaning set forth in Section 8.
“Service Provider” means
Acacia and/or any of its Affiliates providing Services
hereunder.
“Service Recipient” means
Bitzumi and/or any of its Subsidiaries receiving Services
hereunder.
“Service Recipient Data” means all the data owned
and provided solely by Service Recipient, or created by Service
Provider solely on behalf, or for the benefit, of Service
Recipient, that is used by Service Provider solely in relation to
the provision of the Services, including employee information,
customer information, product details and pricing
information.
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“Services” has the meaning
set forth in Section 2.1.
“Subsidiary” shall mean, with
respect to any Person, a corporation, partnership, association,
limited liability company, trust or other form of legal entity in
which such Person, a Subsidiary of such Person or such Person and
one or more Subsidiaries of such Person, directly or indirectly,
has either (i) a majority ownership in (A) the equity or (B) the
interest in the capital or profits thereof, (ii) the power to
elect, or to direct the election of, a majority of the board of
directors or other analogous governing body of such entity, or
(iii) the title or function of general partner or manager, or the
right to designate the Person having such title or
function.
“Term” has the meaning set
forth in Section 9.2.
2. JOINT
VENTURE
2.1 Acacia and Bitzumi
agree to enter into a joint venture for the development of a
patent-related platform utilizing blockchain technology based on
the following conditions:
(a) A mutually
agreeable budget and development plan approved by Bitzumi and
Acacia;
(b) An aggregate of $10
million dollar capital investment by Acacia into Bitzumi (taking
into account all prior investments made by Acacia into Bitzumi), it
being agreed that if Acacia has offered to invest $10 million into
Bitzumi, Bitzumi shall be obligated to accept such investment
within thirty (30) days from the date hereof, provided that, except
as otherwise set forth in the Securities Purchase Agreement between
Acacia and Bitzumi and the Warrant issued to Acacia thereunder, the
price per share of common stock payable by Acacia in connection
with such investment shall be $2.50 per share; and
(c) Acacia to provide
all patent and other related services, including its legal and
technological expertise and services as set forth in Section 3
below.
3. SERVICES
3.1 Services. During
the term of this Agreement, at Bitzumi’s request from time to
time during the Term hereof, pursuant to a plan to be jointly
developed by the Parties, Acacia shall provide Bitzumi, on a
non-exclusive basis, such advisory support services and other
assistance as Bitzumi may reasonably require in connection with the
acquisition, prosecution and development of Bitzumi’s
Intellectual Property, including without limitation
(i) advisory services to build an intellectual property
portfolio to support Bitzumi’s business plans that includes,
among other things, advisory services towards
(a) identification of proprietary assets eligible for
intellectual property protection, (b) identification of rights
to pursue with respect to such assets, (c) identification and
hiring of adequate legal resources to implement the intellectual
property strategy, and (d) identification, acquisition or
licensing of third party intellectual property assets, (ii)
advisory services directed to help protect Bitzumi’s
Intellectual Property from unauthorized use or misappropriation of
Bitzumi’s intellectual property assets that includes, among
other things, advisory services towards formulating a strategy to
pursue a potential infringer based on the relative strength of
Bitzumi’s rights including advising on the type of action to
pursue, identifying the right venue and jurisdiction to pursue the
action and hiring an appropriate legal team, (iii) advisory
services to assist Bitzumi with identifying patentable subject
matter, drafting patent applications and claims, prosecution of
Bitzumi’s patent applications, building a patent portfolio to
support Bitzumi’s business needs(iv) where necessary and if
mutually agreed, advisory services related to infringement where
Bitzumi is alleged to be infringing third party intellectual
property rights that includes advisory services on the legal and
business strategy to pursue, (v) advisory services towards
commercialization of Bitzumi’s intellectual property assets
including, without limitation, licensing such assets to third
parties, engaging with standard setting organizations, patent pools
and entering into cross-licensing arrangements (collectively, the
“Services”).
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3.2 Service Provider
and Service Recipient shall, and shall cause their respective
Affiliates to, comply with applicable privacy and data security
Laws in the provision or receipt of Services.
3.3 The Parties
acknowledge that, subject to Sections 3.2, the manner, means, and
resources to provide the Services are in the reasonable discretion
of Service Provider; provided that Service Provider
shall in good faith discuss and consider any reasonable suggestions
of Service Recipient with respect to the foregoing that are
consistent with the terms of this Agreement.
3.4 Unless otherwise
provided for in this Agreement, the Parties shall use their
commercially reasonable efforts to cooperate with each other in all
matters relating to the provision and receipt of the Services. Such
cooperation shall include exchanging information, providing
electronic access to systems used in connection with the Services
and obtaining all consents, licenses, sublicenses or approvals
necessary (including the payment of any reasonable fees or
expenses) to permit each Party to perform its obligations
hereunder, in each case, subject to the restrictions of Section 9.
Each Party shall cooperate with the other Party in determining the
extent to which any tax is due and owing with respect to any of the
Services, and in providing and making available appropriate
documentation or information reasonably requested by the other
Party including, but not limited to, applicable resale and/or
exemption certificates.
4. CONSIDERATION
4.1 As consideration
for Acacia entering into this Agreement and immediately following
the funding of the capital investment under Section 2.1(b), Bitzumi
shall issue to Acacia a warrant to purchase 30,000,000 shares of
Bitzumi’s Common Stock, par value $0.0001 per share at an
exercise price of $.01 per share in the form attached hereto as
Exhibit A (the
“Warrant”).
4.2 Not later than
twenty-one (21) days after the last day of each calendar month,
Service Provider shall provide to Service Recipient an itemized
invoice for the preceding month’s reasonable incidental
out-of-pocket costs and expenses reasonably incurred by Service
Provider in providing such Services, including air fare (coach
class), lodging, meals, mileage, parking and ground transportation,
as well as the actual cost paid by Service Provider to third-party
service providers with respect to any Services provided by such
third-party service providers (“Costs and
Expenses”).
4.3 The amount stated
in such invoice shall be paid by Service Recipient in full within
forty-five (45) days of the date of Service Recipient’s
receipt of the invoice (or the next Business Day following such
date, if such forty fifth (45th) day is not a Business Day) through
payment to an account designated by Service Provider.
4.4 Without prejudice
to Service Provider’s other rights and remedies, in the event
any sum due (other than those subject to dispute in good faith) to
Service Provider pursuant to the terms of this Agreement remains
unpaid thirty (30) Business Days after the applicable due date,
interest shall accrue daily, from the due date until the date of
actual payment, at an annual interest rate equal to
6%.
4.5 Notwithstanding
anything to the contrary contained herein, all Costs and Expenses
above $500 shall require the prior written approval and
authorization of the Service Recipient.
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5. ACCESS
Each
Service Provider and Service Recipient shall, and shall cause their
respective Affiliates to, provide to each other and their
respective agents and vendors reasonable access (during normal
business hours (when appropriate with respect to physical access),
upon reasonable notice and supervised by the appropriate personnel
of the Parties or as otherwise agreed by the Parties) to the
information, personnel, and systems necessary for the efficient and
accurate administration, provision, receipt or use of each of the
Services and to avoid the duplication of any expenses or benefits
thereunder; provided that all such
information shall be shared subject to the confidentiality
obligations set forth in Section 8, and any Party or third-party
vendor receiving such information shall agree to be bound by such
obligations prior to the provision of any such
information.
6. LIMITED
WARRANTY
NOTWITHSTANDING ANY
PROVISION TO THE CONTRARY, UNLESS EXPRESSLY SET FORTH HEREIN, THE
SERVICE PROVIDER REPRESENTS AND WARRANTS ONLY THAT THE SERVICES
SHALL BE IN CONFORMITY WITH THIS AGREEMENT. THE ABOVE-STATED
LIMITED WARRANTY IS THE SERVICE PROVIDER’S SOLE AND EXCLUSIVE
WARRANTY WITH RESPECT TO ANY SERVICES PROVIDED UNDER THIS
AGREEMENT. THE SERVICE PROVIDER DOES NOT MAKE ANY OTHER WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY AND SPECIFICALLY DISCLAIMS
ANY IMPLIED WARRANTIES, WHETHER OF MERCHANTABILITY, SUITABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE FOR SUCH
SERVICES.
7. LIMITATION ON
DAMAGES
IN NO
EVENT SHALL ANY PARTY OR SUCH PARTY’S AFFILIATES, OR ANY OF
ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
REPRESENTATIVES, BE LIABLE FOR SPECIAL, PUNITIVE, EXEMPLARY,
CONSEQUENTIAL OR INDIRECT DAMAGES, WHETHER BASED ON CONTRACT, TORT,
STRICT LIABILITY, OTHER LAW OR OTHERWISE.
THE
LIABILITY OF SERVICE PROVIDER WITH RESPECT TO THE SERVICES PROVIDED
SHALL BE LIMITED TO, AND SERVICE RECIPIENT’S SOLE REMEDY FOR
ANY BREACH OF THIS AGREEMENT SHALL BE, THE TERMINATION OF THIS
AGREEMENT PURSUANT TO SECTION 9.2(C), WHICH TERMINATION SHALL NOT
AFFECT ACACIA’S RIGHTS UNDER THE WARRANT. IF THIS AGREEMENT
IS TERMINATED PURSUANT TO SECTION 9.2(C), IT WILL BECOME VOID AND
OF NO FURTHER FORCE AND EFFECT, WITH NO LIABILITY ON THE PART OF
SERVICE PROVIDER. FORCE MAJEURE
7.1 Neither Party shall
be responsible for failure or delay in performance of its
obligations hereunder, if and to the extent caused by an act of God
or public enemy, war, government acts, regulations or orders, fire,
flood, embargo, quarantine, epidemic, labor stoppages or
disruptions, unusually severe weather or other similar cause beyond
the control of the affected party (a “Force Majeure Event”),
provided that the
affected party shall have, promptly after knowledge of the
beginning of a Force Majeure Event, notified the other party of
such a Force Majeure Event, the reason therefor, and the estimated
probable duration and consequence thereof. The Parties acknowledge
and agree that such estimation shall not be considered binding in
any way, and the affected party shall not incur liability of any
kind if such estimation proves to be inaccurate. The affected party
shall use its commercially reasonable efforts to restore
performance of its obligations in accordance with this Agreement as
soon as reasonably practicable following the commencement of a
Force Majeure Event.
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7.2 In the event that
Service Provider is excused from supplying a Service pursuant to
Section 7.1, Service Recipient shall be free to acquire replacement
services from a third party at Service Recipient’s expense,
and without liability to Service Provider, for the period and to
the extent reasonably necessitated by such
non-performance.
8. CONFIDENTIALITY OF
INFORMATION
Except
as provided below, all data and information disclosed between
Service Provider and Service Recipient pursuant to this Agreement,
including information relating to or received from third parties
and any Service Recipient Data, are deemed “Confidential
Information” of the Party disclosing such information. A
Party receiving Confidential Information (the “Receiving Party”) shall
not use such information for any purpose other than for which it
was disclosed by the party providing such information (the
“Providing
Party”) and, except as otherwise permitted by this
Agreement, shall not disclose to third parties any Confidential
Information for a period of five (5) years from the termination or
expiration of this Agreement or, with respect to any trade secrets,
indefinitely. Notwithstanding the foregoing, “Confidential
Information” shall not include any information that (a) is
generally known to the public at the time of disclosure or becomes
generally known without the Receiving Party violating or breaching
any confidentiality obligations under this Agreement; (b) is in the
Receiving Party’s possession at the time of disclosure free
of any confidential obligations to any party; (c) becomes known to
the Receiving Party through disclosure by sources other than the
Providing Party without such sources violating any confidentiality
obligations to the Disclosing Party or any third party; or (d) is
independently developed by the Receiving Party without reference to
or reliance upon the Providing Party's Confidential
Information.
9. TERM AND
TERMINATION
9.1 This is a master
agreement and shall be construed as a separate and independent
agreement for each and every Service provided under this Agreement.
Any termination of this Agreement with respect to any Service shall
not terminate this Agreement with respect to any other Service then
being provided pursuant to this Agreement.
9.2 This Agreement
shall continue for a term of two (2) years after the date hereof,
unless sooner terminated as provided in this Section 9.2 (the
“Term”). This
Agreement may be terminated as follows:
(a) upon
the mutual agreement of the Parties;
(b) by
Acacia, upon written notice to Bitzumi, if Service Recipient
commits a material breach of its obligations under this Agreement
and such breach continues uncured for a period of thirty (30) days
after Service Provider has given prior written notice of such
breach to Service Recipient;
(c) by
Bitzumi, upon written notice to Acacia, if Service Provider commits
a material breach of its obligations under this Agreement and such
breach continues uncured for a period of thirty (30) days after
Service Recipient has given prior written notice of such breach to
Service Provider or
(d) by
Acacia, upon thirty (30) days’ prior written notice to
Bitzumi, in the event of a cessation of operations by Bitzumi or
the institution by or against Bitzumi of any proceeding (whether
voluntary or judicially ordered) in bankruptcy or for dissolution,
liquidation, winding up, reorganization, arrangement or the
appointment of a receiver, trustee or judicial administrator, in
each case that is not dismissed within sixty (60) days of the
initiation of such action, or if Bitzumi makes an assignment for
the benefit of, or composition or arrangement with, creditors or
admits in writing, its inability to pay its debts as they become
due or fails to clear any check or note when presented for
payment.
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9.3 Upon termination or
expiration of this Agreement for any reason, Service Provider
shall, upon the written request of Service Recipient, deliver to
Service Recipient or destroy (provided such destruction is promptly
confirmed in writing by Service Provider if requested by Service
Recipient), at Service Provider’s option, all data, records
and other information provided to Service Provider by Service
Recipient and pertaining to any matters for which Service Provider
was providing Services hereunder; provided, however, Service Provider may
retain copies of such data, records and information to the extent
necessary for accounting, tax reporting, and compliance with
Service Provider’s document retention policies, subject to
the requirements of Section 8.
10. RELATIONSHIP OF
PARTIES
In
providing the Services, Service Provider is acting as and shall be
considered an independent contractor. This Agreement is not
intended to create and shall not be construed as creating between
Service Provider and Service Recipient any relationship other than
an independent contractor and purchaser of contract services. The
Parties specifically acknowledge that they are not, and this
Agreement is not intended to and shall not be construed to make
them, affiliates of one another and that no principal and agent,
joint venture, partnership or similar relationship, or any other
relationship, that imposes or implies any fiduciary duty, including
any duty of care or duty of loyalty exists between the Parties.
Except as expressly set forth herein, no Party has the authority
to, and each Party agrees that it shall not, directly or indirectly
contract any obligations of any kind in the name of or chargeable
against the other Party without such other Party’s prior
written consent.
10.1 The
Parties agree to use good faith efforts to resolve any controversy
or claim arising out of this Agreement, the interpretation of any
of the provisions hereof, or the actions of the Parties hereunder.
In the event of a breach of this Agreement, or a dispute as to the
meaning of this Agreement or any of its terms which the Parties
cannot resolve by themselves amicably, the following provisions
shall apply:
(a) If,
within thirty (30) days after one Party notifies the other in
writing of the existence of a dispute, either Party may, at its
option, provide written notice of the intent to arbitrate. In the
event the Party that is the recipient of such notice agrees to
arbitrate, arbitration shall be according to the rules of the
American Arbitration Association, except as herein modified by the
Parties or otherwise as agreed to by the Parties. Within ten (10)
days of the agreement of the Parties to arbitrate, each Party will
select an arbitrator, and notify the other Party of its selection.
Within fifteen (15) days after receipt of such notice, the
respective arbitrators will select a third arbitrator. All such
arbitrators shall have experience in the respective businesses of
the Parties. Decisions of the panel must be in writing and will be
final and binding upon the Parties, and judgment may be entered
thereon by any court having jurisdiction.
(b) The
arbitration proceedings will be held in Orange County, California,
unless the Parties agree to a different location. All negotiation
and arbitration proceedings will be confidential and will be
treated as compromise and settlement negotiations for purpose of
all rules of evidence. Each Party shall bear its own cost of
presenting its case, including attorney’s fees, and one-half
of the cost incurred by the arbitration panel, or any mediation or
alternative dispute resolution procedure, as the case may
be.
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10.2 Nothing
in this Section 10 shall supersede the notice/cure and termination
rights of the Parties otherwise set forth in this Agreement. This
Section 10 shall apply without prejudice to any Party’s right
to seek equitable remedies or injunctive relief to which such Party
may be entitled at any time.
11. RECORDS
11.1 The
Service Recipient Data shall be and shall remain the property of
Service Recipient and, to the extent reasonably practicable, shall
be promptly provided to Service Recipient by Service Provider upon
Service Recipient’s request. The Service Provider shall use
Service Recipient Data solely to provide the Services to Service
Recipient as set forth herein and for no other purpose
whatsoever.
11.2 Notwithstanding
anything herein to the contrary and subject to Section 8, Service
Provider may retain copies of the Materials and Service Recipient
Data in accordance with policies and procedures implemented by
Service Provider in order to comply with applicable Law or document
retention policies as in effect from time to time and in accordance
with past practices.
12. INTELLECTUAL
PROPERTY
Unless
otherwise specifically provided herein, this Agreement shall not
transfer ownership of any Intellectual Property from either Party
to the other Party or to any third party. Ownership of any
Intellectual Property created by a Service Provider in connection
with providing a Service to a Service Recipient under this
Agreement shall be retained by such Service Provider, unless based
on Service Recipient’s Confidential Information or unless
otherwise agreed to between the Service Provider and the Service
Recipient, in writing. If Service Provider creates any Intellectual
Property in connection with providing a Service based, in whole or
in part, on Service Recipient’s Confidential Information or
to the extent agreed to between the Service Provider and the
Service Recipient, then the creation of such Intellectual Property
that is primarily related to or arising from the applicable Service
shall be considered a “work made for hire” under
applicable Law and shall be owned by Service
Recipient.
13. ASSIGNMENT
This
Agreement and all of the provisions hereof shall be binding upon
and shall inure to the benefit of the Parties hereto and their
respective successors and permitted assigns. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be
assigned or delegated, directly or indirectly, in whole or in part,
including by operation of law, by any Party hereto without the
prior written consent of the other Party hereto, which consent
shall not be unreasonably withheld, except that Acacia may delegate
its rights or obligations hereunder, in whole or in part, to any of
its Affiliates without the consent of Bitzumi; provided, however, that such
Affiliate agrees in writing to be bound by this Agreement and to
assume all of Acacia’s obligations under this Agreement. For
the avoidance of doubt, no such delegation shall relieve Acacia of
any of its obligations hereunder.
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14. NOTICES
All
notices, requests, claims, demands and other communications to be
given or delivered under or by the provisions of this Agreement
shall be in writing and shall be deemed given only (a) when
delivered personally to the recipient, (b) one (1) Business Day
after being sent to the recipient by reputable overnight courier
service (charges prepaid), provided that confirmation of delivery
is received, (c) upon machine-generated acknowledgment of receipt
after transmittal by facsimile or (d) five (5) days after being
mailed to the recipient by certified or registered mail (return
receipt requested and postage prepaid). Such notices, demands and
other communications shall be sent to the Parties at the following
addresses (or at such address for a Party as will be specified by
like notice):
(i) If
to Acacia:
Acacia
Research Corporation
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. ▇▇▇▇▇▇
▇▇▇▇▇▇, Executive Vice President General Counsel
Facsimile:
_______________
(ii) If
to Bitzumi:
▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
Any
Party to this Agreement may notify any other Party of any changes
to the address or any of the other details specified in this
paragraph; provided that such notification shall only be effective
on the date specified in such notice or five (5) Business Days
after the notice is given, whichever is later. Rejection or other
refusal to accept or the inability to deliver because of changed
address of which no notice was given shall be deemed to be receipt
of the notice as of the date of such rejection, refusal or
inability to deliver.
15. SURVIVAL
The
Parties’ rights and obligations under Sections 2, 3, 5, 6, 8,
9.3 and 10 through 16 shall survive expiration or termination of
this Agreement.
16. GENERAL
PROVISIONS
16.1 Severability.
If any provision of this Agreement or the application of any such
provision to any Person or circumstance shall be declared
judicially to be invalid, unenforceable or void, such decision
shall not have the effect of invalidating or voiding the remainder
of this Agreement, it being the intent and agreement of the Parties
that this Agreement shall be deemed amended by modifying such
provision to the extent necessary to render it valid, legal and
enforceable while preserving its intent or, if such modification is
not possible, by substituting therefor another provision that is
valid, legal and enforceable and that achieves the original intent
of the Parties.
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16.2 Counterparts. This Agreement
may be executed in one or more counterparts each of which when
executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by
facsimile or portable document format (PDF) shall be as effective
as delivery of a manually executed counterpart of any such
Agreement.
16.3 Entire
Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof and
shall supersede all previous negotiations, commitments and writings
with respect to such subject matter.
16.4 Amendments;
Waivers. This Agreement may not be amended except by an
instrument in writing signed by both Parties. No failure or delay
by either Party in exercising any right hereunder shall operate as
a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of
any other right hereunder. Any agreement on the part of either
Party to any such waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such Party.
16.5 No
Third Party Beneficiaries. Nothing in this Agreement,
express or implied, is intended to or shall confer upon any Person
any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement, and, no Person
shall be deemed a third party beneficiary under or by reason of
this Agreement.
16.6 Waiver
of Jury Trial. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR
EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (WITH EACH PARTY
HAVING HAD OPPORTUNITY TO CONSULT COUNSEL), EACH OF THE PARTIES
EXPRESSLY AND IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING UNDER THIS AGREEMENT OR ANY ACTION OR
PROCEEDING ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY,
REGARDLESS OF WHICH PARTY INITIATES SUCH ACTION OR PROCEEDING, AND
ANY ACTION OR PROCEEDING UNDER THIS AGREEMENT OR ANY ACTION OR
PROCEEDING ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY
SHALL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE
SITTING WITHOUT A JURY.
16.7 Governing
Law. This Agreement and all issues and questions concerning
the construction, validity, enforcement and interpretation of this
Agreement shall be governed by, and construed in accordance with,
the Laws of the State of California, without giving effect to any
choice of law or conflict of law rules or provisions (whether of
the State of California or any other jurisdiction) that would cause
the application of the Laws of any jurisdiction other than the
State of California. In furtherance of the foregoing, the internal
Laws of the State of California shall control the interpretation
and construction of this Agreement, even though under that
jurisdiction’s choice of law or conflict of law analysis, the
substantive Law of some other jurisdiction would ordinarily
apply.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN
WITNESS WHEREOF, the Parties have caused this Joint Venture and
Services Agreement to be executed and delivered by their duly
authorized representatives as of the date first above
written.
ACACIA
RESEARCH CORPORATION
By:
__________________________
Name:
Title:
By:
___________________________
Name:
▇▇▇▇ ▇▇▇▇▇
Title:
Executive Chairman
EXHIBIT A
COMMON
STOCK WARRANT
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