THAT ANY PROVISION OF THIS AGREEMENT
SHALL, FOR ANY REASON, BE HELD TO BE INVALID OR UNENFORCEABLE IN ANY RESPECT,
SUCH INVALIDITY OR UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER PROVISION HEREOF,
AND THE PARTIES SHALL NEGOTIATE IN GOOD FAITH TO MODIFY THE AGREEMENT TO
PRESERVE THEIR ORIGINAL INTENT.
7.5.
AMENDMENT AND WAIVER:
THIS AGREEMENT MAY BE AMENDED,
SUPPLEMENTED, OR OTHERWISE MODIFIED ONLY BY MEANS OF A WRITTEN INSTRUMENT SIGNED
BY ALL PARTIES.
ANY WAIVER OF ANY RIGHTS OR FAILURE TO ACT IN A SPECIFIC
INSTANCE SHALL RELATE ONLY TO SUCH INSTANCE AND SHALL NOT BE CONSTRUED AS AN
AGREEMENT TO WAIVE ANY RIGHTS OR FAIL TO ACT IN ANY OTHER INSTANCE, WHETHER OR
NOT SIMILAR.
7.6.
BREACH AND CURE:
EITHER PARTY SHALL HAVE THE RIGHT TO CURE ITS
MATERIAL BREACH.
THE CURE SHALL BE EFFECTED WITHIN A REASONABLE PERIOD OF TIME
BUT IN NO EVENT LATER THAN TWENTY (20) DAYS AFTER NOTICE OF ANY BREACH GIVEN BY
THE NON-BREACHING PARTY, OR FIVE (5) BUSINESS DAYS IN THE EVENT OF A PAYMENT
OBLIGATION.
7.7.
HEADINGS:
THE SECTIONS AND PARAGRAPHS HEADINGS CONTAINED HEREIN
ARE FOR THE PURPOSES OF CONVENIENCE ONLY AND ARE NOT INTENDED TO DEFINE OR LIMIT
THE CONTENTS OF SAID SECTIONS OR PARAGRAPHS.
7.8.
COUNTERPARTS:
THIS AGREEMENT MAY BE SIGNED IN COUNTERPART, EACH
OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL.
SIGNATURES SHALL BE PROVIDED BY
FACSIMILE TRANSMISSION, WITH ORIGINAL SIGNATURES FOLLOWING BY MAIL.
7.9.
ASSIGNMENT:
ACUS MAY NOT ASSIGN THIS AGREEMENT NOR THE LICENSES
GRANTED HEREIN TO ANY THIRD PARTY UNLESS SAID ASSIGNMENT IS TO A SUCCESSOR BY
MERGER, ACQUISITION, OR CORPORATE REORGANIZATION, AND/OR IN CONNECTION WITH THE
SALE OR OTHER DISPOSITION BY LICENSE, JOINT VENTURE OR OTHERWISE OF THE ENTIRE
BUSINESS UNIT OR PRODUCT(S) TO WHICH THIS AGREEMENT PERTAINS AND ASSIGNEE MUST
AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF ITSELF AND ITS AFFILIATES,
INCLUDING BUT NOT LIMITED TO THE PROVISIONS OF
PARAGRAPHS 3.5 AND 4.10.
FOR
8
AVOIDANCE OF DOUBT, THE RELEASE OF PARAGRAPH 3.1 SHALL NOT EXTEND TO THE
ASSIGNEE'S BUSINESS OR ASSETS OTHER THAN THOSE ACQUIRED FROM ACUS.
7.10.
SUBSEQUENT ACQUISITIONS:
IF, AFTER THE EFFECTIVE DATE, ACUS OR AN
AFFILIATE EITHER ACQUIRES AN ENTITY OR ACQUIRES SUBSTANTIALLY ALL OF THE ASSETS
FROM AN ENTITY, AND SAID ENTITY IS, IMMEDIATELY PRIOR TO THE DATE OF
ACQUISITION, LICENSED BY THE OTHER PARTY ("LICENSOR") UNDER ONE OR MORE GEHC
LICENSED PATENTS THROUGH AN EXISTING AGREEMENT PURSUANT TO WHICH ROYALTIES OR
OTHER PAYMENTS ARE MADE BY SAID ENTITY TO LICENSOR, THEN THE LICENSE AND OTHER
RIGHTS GRANTED HEREIN TO THE ACQUIRING PARTY WITH RESPECT TO SAID GEHC LICENSED
PATENTS SHALL APPLY TO PRODUCTS MANUFACTURED BY SAID ENTITY OR THROUGH THE USE
OF SAID ASSETS, PROVIDED THAT SUCH ROYALTIES OR OTHER PAYMENTS SHALL CONTINUE TO
BE MADE BY THE ACQUIRING PARTY OR SAID ENTITY TO THE LICENSOR WITH RESPECT TO
SUCH PRODUCTS NOTWITHSTANDING THAT THE ACQUIRING PARTY MAY HAVE BEEN LICENSED
FOR THE SAME PRODUCTS BEFORE THE ACQUISITION.
FOR AVOIDANCE OF DOUBT, THE
RELEASE OF PARAGRAPH