Common use of Covenant Not to Assert Clause in Contracts

Covenant Not to Assert. 4.1 During the first 3 years of the Term (the “Limited Term”), and effective as of the Effective Date, Motorola hereby covenants not to assert a claim against Meru alleging infringement of Motorola Patents based on or arising out of (a) the exploitation by Meru of Meru Covered Products and/or (b) the use, import, offer for sale, lease and/or sale by Meru of Meru Covered Products and solely such combinations as are authorized under Section 3.4 (but not any other products, services, software, systems and/or combinations of the Protected Parties). 4.2 During the first 3 years of the Term (the “Limited Term”), and effective as of the Effective Date, Meru hereby covenants not to assert a claim against Motorola alleging infringement of Meru Patents based on or arising out of (a) the exploitation by Motorola of Motorola Licensed Products and/or (b) the use, import, offer for sale, lease and/or sale by Motorola of Motorola Licensed Products and solely such combinations as are authorized under Section 3.4 (but not any other products, services, software, systems and/or combinations of the Protected Parties). 4.3 Each Party agrees that no damages or liabilities shall accrue against the other Party for any Patent infringement within the scope of the covenants set forth in Sections 4.1 and 4.2 until 3 years from the Effective Date, at which time such damages or liabilities shall begin to accrue in the event of an assertion brought after the expiration of such covenants. 4.4 Notwithstanding anything herein to the contrary, the releases, licenses, dismissals, and covenants granted by each Party shall run with such Party’s Patents and remain in full force and effect regardless of any subsequent assignment, exclusive license, sale, gift or other transfer of any of such Patents or any rights or interests therein. Notwithstanding anything herein to the contrary, any such assignment, exclusive license, sale, gift or other transfer of rights in or to such Patents by each Party shall be made subject to this Agreement, and any such assignment, exclusive license, sale, gift or other transfer of rights in or to such Patents by such Party in contravention of this Section shall be null and void and of no force or effect to the extent of such contravention. 4.5 In the event either Party asserts a Patent infringement claim in violation of this Section 4, or in violation of the releases granted in Section 2 or the licenses granted in Section 3, the non-asserting Party shall be entitled to have such claims dismissed with prejudice and recover from the asserting Party its reasonable attorneys’ fees and reasonable associated costs and expenses incurred in defending against the assertion. In the event the non-asserting Party claims such a violation, and such asserting Party’s infringement assertion is not found to be in violation, such asserting Party shall be entitled to recover from the non-asserting Party its reasonable attorneys’ fees and reasonable associated costs and expenses incurred in defending against the claim of a violation.