The following terms and conditions govern all actual or potential business opportunities involving you (“Counterparty”) and RPX Corporation (“RPX”) (each of Counterparty and RPX a “party”, collectively, the “parties”):
1. Except as required to enforce the terms of any nondisclosure agreement between the parties, Counterparty agrees not to seek or cause to issue governmental, judicial or regulatory requests either by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other legally binding process for information regarding the parties’ discussions of a business opportunity, the parties’ discussions of patents, RPX’s evaluation of the patents, or RPX’s engagement in discussions concerning the contemplated business opportunity (the “Purpose”) with any current or prospective RPX members or their current and future affiliates (collectively, “RPX Members”).
2. Any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plans and equipment), which is designated as “Confidential,” “Proprietary” or some similar designation (the “Confidential Information”), together with: (i) any preceding or subsequent submissions, correspondence, negotiations or discussions between Counterparty and RPX relating to the Purpose, (ii) RPX’s potential or actual communications with any RPX Members relating to the Purpose, as well as (iii) RPX’s or RPX Member’s independent review of any information relating to the Purpose (all of the foregoing collectively, “Evaluation Information”) shall not constitute notice or knowledge of any patent or claim of patent infringement to RPX or any RPX Member. Counterparty agrees not to use, and waives the right to use, the Evaluation Information as evidence in any judicial, administrative, or other proceeding to establish or to refer to any such notice or knowledge, including without limitation in connection with establishing any claim of willful infringement, of indirect infringement, or for damages in connection with any claim of patent infringement.
3. Notwithstanding anything to the contrary, the terms set forth in this Agreement shall survive expiration or termination of this Agreement. Without limiting any other rights herein, Counterparty and RPX agree that RPX Members are third-party beneficiaries of, and entitled to enforce the rights of, RPX with respect to this Agreement. This Agreement shall be binding on Counterparty, its affiliates, all owners of the patents or other rights that are the subject of the proposed business opportunity, and each of their successors and assigns, and shall inure to the benefit of RPX, each RPX Member, and each of their successors and assigns. Counterparty agrees that any transfer by Counterparty of patent assets that are part of the Purpose of this Agreement will be subject to the provisions of this Agreement with respect to all subsequent owners or exclusive licensees. This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles.
4. Counterparty represents and warrants that Counterparty (i) is the sole owner of any patent assets identified in connection with the Purpose of this Agreement, or (ii) has proper written authority from the owner(s) of such patent assets to agree to the terms of this Agreement, in which case Counterparty is agreeing to such terms on behalf of such owner(s).
5. Notwithstanding the foregoing, it is understood and agreed that this Agreement shall in no way impair the rights of Counterparty to assert pre-litigation notice to or knowledge by (or evidence thereof) any RPX Member of the existence or potential infringement of any patents where there is a basis for doing so independent of the proposed business opportunity contemplated hereunder.
6. The parties acknowledge that RPX offers defensive patent risk management services and does not, under any circumstance, instruct or encourage any entity to sue or threaten to sue any other entity. Counterparty acknowledges and agrees that it: (a) is free to discuss and negotiate any business opportunity (without disclosing RPX’s Confidential Information) directly with RPX Members, and (b) will not construe, interpret or allege any action of RPX as instruction or encouragement to sue or threaten to sue any other entity. Unless and until the parties execute a definitive written agreement regarding the Purpose, neither party will be under any legal obligation of any kind whatsoever with respect to the Purpose except for those obligations specifically agreed to in this Agreement. Without limiting the foregoing, in no event will either party allege that any oral discussions, emails, texts or the like constitute a binding agreement.