definiens: means any change to an Accused Product that is material or substantial . The following examples are only intended to assist the parties and any arbitrator(s ) in assessing whether a modified Accused Product is Materially Different from the unmodified Accused Product . By way of example only, and without limitation,~hanges in color, size, shape, material and/or packaging, andlor changes to use a different comblllation of features that are already incorporated into an Accused Product, would not be considered Materially DifferenJ 2.4 Non - Assertion by [COMPANY] . [COMPANY] for itself and its Affiliates and [COMPANY] 's and its Affiliates ' respective successors, assigns, officers, directors, employees and agents, or any of them, hereby covenants and agrees that, during the term of this Agreement, it shall not first initiate or voluntarily aid or abet others to first initiate any legal proceeding or action in any court, tribunal, commission, judicial body or arbitration ( including, without limitation, arbitration brought under Article 11 hereof ) or with the United States Patent and Trademark Office or any foreign counterpart for the purpose of limiting the scope or challenging the enforceability or validity of any of the Asserted Patents or any of the Non - Asserted Patents ; provided that nothing in this Section 2.4 or Sections 5.1 or 5.2(b ) shall prevent [COMPANY] from ( a ) attempting to limit the scope of or challenging the enforceability or validity of any of the Asserted Patents in response to any infringement claim or other claim initiated by or for Licensor or by or for any third party having the right to enforce any of the Asserted Patents in any court, tribunal, commission, judicial body or arbitration ( including, without limitation, arbitration brought under Article 11 hereof ) or with the United States Patent and Trademark Office or any foreign counterpart, or ( b ) first initiating any legal proceeding or action in any court, tribunal, commission, judicial body or arbitration ( including, without limitation, arbitration brought under Article 11 hereof ) or with the United States Patent and Trademark Office or any foreign counterpart for the purpose of limiting the scope of or asserting the unenforceability, invalidity or noninfringem ent of any Non - Asserted Patent(s ) if [COMPANY] or any of its Affiliates has a reasonable apprehension that [COMPANY], any of its Affiliates, Dr. Bonutti, or any third party that has the right to enforce any such Non - Asserted Patent(s ) will assert any claim in any court, tribunal, commission, judicial body or arbitration ( including, without limitation, arbitration brought under Article 11 hereof ) or with the United States Patent and Trademark Office or any foreign counterpart alleging that any [COMPANY] Product that is not a Suture Anchor Product infringes any such Non - Asserted Patent(s )