definiens: or means with respect to any material, Know - How, or intellectual property right ( including Patent Rights ), that a Pa rty has the power ( whether by ownership, license, o r otherwise other than pursuant to this Agreement ) to grant to the other Party access, a license, or a sublicense ( as applicable ) to the same on the terms and conditions set forth i n this Agreement without violating any obligations of the granting Party to a Third Party . Notwithstanding the foregoi ng, a Party will not be deemed to any mat erial, Know - How, or intellectual property right ( including Pate nt Rights ) that, ( i ) prior to the consummation of t he merger, consolidation or transfer making such Third Party a n Acquiring Entity of such Party, is owned or in - li censed by ( A ) a Third Party that becomes an Affiliate of such acquired Party after the Effective Date as a resul t of such acquisition transaction or ( B ) any Person that is a n Affiliate of such Third Party prior to the consum mation of such acquisition transaction or ( ii ) that any Acquiring Entity or any of its Affiliates subsequently develo ps without accessing or practicing the Licensed IP or [COMPANY] IP unless ( a ) prior to the consummation of such acq uisition transaction, such acquired Party or any of its Affi liates also Controlled such Patent Right or Know - Ho w, or ( b ) the Know - How or Patent Rights owned or in - licensed by t he applicable Third Party or any of its Affiliates were not used in the performance of activities under this Ag reement prior to the consummation of such acquisiti on transaction, but after the consummation of such acq uisition transaction, such acquired Party or any of its Affiliates uses any such Patent Rights or Know - How in the perf ormance of its obligations or exercise of its right s under this Agreement, in each of which cases ( ( a ) and ( b ) ), su ch Patent Rights or Know - How will be b y such Party for purposes of this Agreement