definiens: and mean : the entity referenced has the ability to exploit and to license or sublicense the right to exploit the referenced technology or rights, without ( assuming the timely payment of all applicable royalties ) violating the terms of any agreement or other arrangement between the entity referenced and a third party ; provided, however, that the entity referenced will not be deemed to the referenced technology or rights if the party to receive a license or sublicense thereto under this Agreement does not agree in writing, after disclosure of the third - party agreement or other arrangement, to be responsible for and pay any amounts coming due under such agreement or other arrangement that result from or are attributable to such party 's use of the technology or rights ( unless the parties otherwise agree pursuant to SECTION 3.6 with respect to non - royalty - based payments ) ; provided, further, the entity referenced has disclosed the existence and terms of such third - party agreement or other arrangement promptly upon request or when it has become apparent that such technology or rights will most likely be used by such party receiving the license or sublicense hereunder