Non-Exclusive License Agreement by and between the registrant and Boston Scientific Corporation dated May 11, 2020

Exhibit 10.9

NON-EXCLUSIVE LICENSE AGREEMENT

This NON-EXCLUSIVE LICENSE AGREEMENT (this “Agreement”) is dated as of the 11^th day of May, 2020 (the “Effective Date”), by and between MINERVA SURGICAL, INC., a Delaware corporation (“Licensor”), and BOSTON SCIENTIFIC CORPORATION, a Delaware corporation (“Licensee”).

WHEREAS, Licensor and Licensee have entered into a certain Asset Purchase Agreement, dated as of April 28, 2020 (the “Purchase Agreement”), pursuant to which, as of the Effective Date, Licensor is purchasing from Licensee all right, title and interest in and to the Business Transferred Intellectual Property (as such term is defined in the Purchase Agreement);

WHEREAS, Licensor has agreed to grant to Licensee a non-exclusive, royalty-free license under the Licensed Patents (as defined herein) included in the Business Transferred Intellectual Property (as defined in the Purchase Agreement) for the limited purposes described, and in accordance with the terms and conditions set forth, in this Agreement; and

WHEREAS, Licensee desires to obtain such a non-exclusive license from Licensor under such Licensed Patents for the limited purposes described, and in accordance with the terms and conditions set forth, in this Agreement.

NOW, THEREFORE, in consideration of the premises and mutual promises and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS

Section 1.01    Certain Defined Terms. The following initially capitalized terms, when used herein, have the meanings set forth below. Initially capitalized terms used herein and not otherwise defined shall have the meanings assigned thereto in the Purchase Agreement.

“Confidential Information” means any and all confidential or proprietary information disclosed by or on behalf of a party or any of its Representatives (“Disclosing Party”) to the other party or any of its Representatives (“Receiving Party”) under this Agreement, including information regarding Disclosing Party’s past, present or future research, technology, know-how, ideas, concepts, designs, products, markets, computer programs, prototypes, processes, machines, manufacture, compositions of matter, business plans and operations, technical information, drawings, specifications, and the like, except information which is: (a) at the time of disclosure, or thereafter becomes, a part of the public domain through no act or omission by Receiving Party or its Representatives; (b) lawfully in the possession of Receiving Party prior to disclosure by or on behalf of Disclosing Party as shown by Receiving Party’s written records; (c) lawfully disclosed to Receiving Party by a third party which did not acquire the same under an obligation of confidentiality from or through Disclosing Party as shown by written records; or (d) independently developed by Receiving Party without use of or reference to Disclosing Party’s Confidential Information, as shown by Receiving Party’s written records. For clarity, and notwithstanding anything to the contrary herein, all non-public subject matter claimed, disclosed or otherwise embodied in the Licensed Patents, as well as the terms of this Agreement, shall be the Confidential Information of each party

“Licensee Field” means all uses outside the Licensor Field. For clarity, the Licensee Field does not include the commercialization or other exploitation of any fluid management product that (a) is compatible for use with the Symphion^™ tissue removal system, and/or (b) incorporates, is covered by or otherwise embodies any Business Intellectual Property for intrauterine use or any gynecologic indication.

“Licensed Patent(s)” means Licensor’s rights in and to each of the following: (a) the patents and patent application(s) listed and described in Section 3.08(a)(ii) of the Seller Disclosure Schedule and designated as Business Transferred Intellectual Property; (b) any patent application(s) filed as a continuation, division, or continuation-in-part (excluding subject matter novel to such application(s)) of the patents or patent application(s) described in clause (a); (c) patents issuing from the patent application(s) described in clauses (a)-(b) and any extensions, renewals, reissues, revivals and reexaminations of patents described in clauses (a)-(b); and (d) any foreign counterpart to the patents and patent application(s) described in clauses (a)-(c) (including continuations, divisions, or continuations-in-part of such patent applications), patents issuing therefrom and extensions, renewals, reissues, revivals and reexaminations thereof.

“Licensed Products” means any product, part or other material, process or service (excluding the Products), the identification, discovery, research, development, manufacture, production, use, marketing, offer for sale, distribution, import, export or sale of which, absent the license granted pursuant to this Agreement, would constitute an infringement or misappropriation of an issued claim of the Licensed Patents.

“Licensor Field” means all uses and applications relating to the intrauterine resection of tissue or the intrauterine ablation of tissue.

“Representatives” means a party’s employees, officers, directors, Affiliates, agents, successors and assigns.

The following table sets forth certain other defined terms and the Section of the Agreement in which the meaning of each such term appears:

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ARTICLE II.

GRANT OF RIGHTS

Section 2.01    Licensed Patents. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, a non-exclusive, non-transferable (except as expressly permitted in Section 8.05) worldwide, royalty-free, fully paid-up, right and license, with no right to sublicense (except as expressly permitted in Section 2.02), under the Licensed Patents, solely to the extent necessary or useful to make, have made, use, offer for sale, sell and import products solely within the Licensee Field. Licensee shall have the right to exercise such license through its Affiliates, provided that Licensee shall be responsible for its Affiliates’ compliance with the terms and conditions of this Agreement including all relevant restrictions, limitations and obligations.

Section 2.02    Sublicenses. Licensee’s right to sublicense its rights under the Licensed Patents pursuant to Section 2.01 (i) is limited to instances in which Licensee sells, transfers or divests one or more products or product lines to which this license may relate and wishes to grant the acquirer of such asset(s) a sublicense hereunder, and (ii) is subject to the requirements that (a) Licensee shall notify Licensor in writing of all such sublicenses and Licensee shall enter into a written agreement with each such sublicensee, a signed copy of which shall be provided to Licensor within ten (10) days of execution; and (b) Licensee shall include in each such sublicense agreement provisions at least as protective of Licensor and its rights in the Licensed Patents as the terms and conditions of this Agreement. All sublicenses shall terminate automatically upon expiration of the license granted to Licensee herein. Licensee shall be responsible and liable for any breaches of this Agreement by its sublicensees.

Section 2.03    Retained Rights. Nothing in this Agreement shall be construed to confer any rights upon Licensee by implication, estoppel or otherwise to any technology or to patent rights of Licensor or any other entity, other than the express licenses to the Licensed Patents as set forth in Section 2.01. Title to the Licensed Patents will at all times remain vested in Licensor and Licensor retains the right (a) to grant licenses to other parties with respect to the Licensed Patents, and (b) to use the Licensed Patents in any manner and for any purpose which Licensor deems fit. Licensor retains all rights not expressly granted herein. No other license, express or implied, is granted hereby, and Licensee will not use or practice the Licensed Patents in any other field or for any other purpose, except as expressly set forth in Section 2.01.

Section 2.04    Licensee Improvements.

(a)    Subject to the terms and conditions of this Agreement, Licensee hereby grants to Licensor, and Licensor hereby accepts from Licensee, a non-exclusive, worldwide, royalty-free, fully paid-up, perpetual and irrevocable, non-transferable (except as expressly permitted in Section 8.05) right and license, including the right to sublicense (in accordance with Section 2.04(b)), under any and all Intellectual Property that covers, relates to or is embodied in any improvement, enhancement or modification made by or on behalf of Licensee or its Affiliates or sublicensees to the Licensed Patents (“Licensee Improvements”), to (a) use, reproduce, prepare derivative works from, distribute, publicly perform, publicly display or otherwise exploit such Licensee Improvements, and (b) use, develop, have developed, make, have made, use, have used, distribute, promote, offer for sale, sell, have sold, import and export any products or services of

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Licensor or its Affiliates; in each case ((a) and (b)) within the Licensor Field. Licensor shall have the right to exercise such license through its Affiliates, provided that Licensor shall be responsible for its Affiliates’ compliance with the terms and conditions of this Agreement including all relevant restrictions, limitations and obligations.

(b)    Licensor’s right to sublicense its rights under such Licensee Improvements pursuant to Section 2.04(a) (i) is limited to instances in which Licensor sells, transfers or divests one or more products or product lines to which this license may relate and wishes to grant the acquirer of such asset(s) a sublicense hereunder, and (ii) is subject to the requirements that (a) Licensor shall notify Licensee in writing of all such sublicenses and Licensor shall enter into a written agreement with each such sublicensee, a signed copy of which shall be provided to Licensee within thirty (30) days of execution (which copy may be redacted of information not necessary to determine Licensor’s compliance with this Agreement); and (b) Licensor shall include in each such sublicense agreement provisions at least as protective of Licensee and its rights in such Licensee Improvements as the terms and conditions of this Agreement. All sublicenses shall terminate automatically upon expiration of the license granted to Licensor herein. Licensor shall be responsible and liable for any breaches of this Agreement by its sublicensees.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

Section 3.01    Representations. Each of Licensee and Licensor hereby represents and warrants to the other party that: (a) it is an entity duly organized and validly existing under the laws of the applicable state of its formation, and has all requisite power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby; (b) this Agreement has been duly authorized, executed and delivered by such party and it constitutes the legal, valid and binding obligations of such party, and it is enforceable against such party in accordance with its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors; and (c) neither the execution, delivery and performance of this Agreement, nor the consummation by such party of the transactions contemplated hereby, does or will violate or conflict with or constitute a default under any contractual obligation of such party, or any judgment, order or decree applicable to, or binding upon, such party.

Section 3.02    Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 3.01 OF THIS AGREEMENT, LICENSOR MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY AS TO THE LICENSED PATENTS OR THE LICENSED PRODUCTS AND HEREBY DISCLAIMS THE SAME. Without limiting the foregoing, this Agreement and the licenses granted herein do not and shall not be interpreted or construed to include any requirement to file any patent application or secure or maintain any patent.

Section 3.03    Export. Licensee acknowledges and agrees that it shall not export or re-export, directly or indirectly (including via remote access), the Licensed Patents or any Licensed Products or other information or materials it receives pursuant to this Agreement to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval.

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ARTICLE IV.

CONFIDENTIALITY

Section 4.01    Nondisclosure and Nonuse Obligations. Receiving Party shall not, without the prior consent of Disclosing Party, disclose any of Disclosing Party’s Confidential Information to anyone for any reason at any time or use any of Disclosing Party’s Confidential Information for any purpose except to perform its obligations or exercise its rights set forth in this Agreement. If Receiving Party believes in good faith that it is required by the law of any relevant jurisdiction or pursuant to an order of a court of competent jurisdiction or that of a competent Governmental Authority to disclose any of Disclosing Party’s Confidential Information, it shall provide notice to Disclosing Party, to the extent possible, prior to making such disclosure, so as to allow Disclosing Party time to undertake legal or other action to prevent such disclosure or otherwise obtain confidential treatment of such disclosure. In no such event will Receiving Party disclose any of Disclosing Party’s Confidential Information that Receiving Party is not compelled to disclose by law, and Receiving Party will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to any of Disclosing Party’s Confidential Information so disclosed.

Section 4.02    Representatives. Except as expressly provided in this Agreement, Receiving Party shall limit dissemination of Disclosing Party’s Confidential Information to only those of Receiving Party’s Representatives having a “need to know”, advise each such Representative who receives Disclosing Party’s Confidential Information that such information is confidential, and require each such Representative (other than attorneys and other agents who are already under a professional duty of confidentiality) to sign and comply with a written agreement obligating it/he/she to observe all of Receiving Party’s obligations hereunder relating to confidentiality and non-disclosure.

Section 4.03    Permitted Disclosures. Receiving Party may further disclose Confidential Information of the Disclosing Party to the extent that such disclosure is:

(a)    made by or on behalf of Receiving Party to a Governmental Authority as may be reasonably necessary or useful for purposes of obtaining or enforcing a patent in accordance with this Agreement; provided, however, that reasonable measures shall be taken to assure confidential treatment of such information (to the extent such protection is available); and

(b)    made by or on behalf of Receiving Party to potential or actual investors or acquirers as may be reasonably necessary in connection with their evaluation of such potential or actual investment or acquisition; provided, however, that such Persons shall be subject to obligations of confidentiality and non-use with respect to such Confidential Information substantially similar to the obligations of confidentiality and non-use of Receiving Party pursuant to this Article 4. With respect to any disclosure made by a Receiving Party pursuant to this Section 4.03(b), the Receiving Party shall use good faith efforts to withhold and redact the name and identity of the Disclosing Party until such time as disclosure of same shall be reasonably necessary.

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Section 4.04    Third Party Information. Neither party shall, nor shall it permit any of its Representatives, to disclose to the other party any confidential or proprietary information belonging to any third party without the prior written consent of such party.

ARTICLE V.

PATENT PROSECUTION; INFRINGEMENT

Section 5.01    Prosecution. Licensor shall, at its own expense, control and be solely responsible for the prosecution and maintenance of the Licensed Patents. Nothing in this Agreement implies an obligation on Licensor to apply for, prosecute or maintain any patent or patent right, including any Licensed Patent. Licensee shall fully cooperate, at Licensor’s reasonable request, with the prosecution and maintenance of the Licensed Patents and in any other proceedings before a patent official or office.

Section 5.02    Infringement. Licensor shall have the sole right, but not the obligation, to bring suit against any Person for infringement or misappropriation of the Licensed Patents and to control such suit at its own expense. Licensor shall be solely entitled to any and all recoveries resulting from such an enforcement action. Licensee agrees to fully cooperate with and assist Licensor in any such legal proceedings, including joining as a party plaintiff if needed, at Licensor’s reasonable request, and Licensor shall reimburse Licensee for all reasonable expenses incurred by Licensee in providing such cooperation and assistance.

ARTICLE VI.

TERM

Section 6.01    Term. This Agreement shall commence as of the Effective Date and, unless terminated earlier pursuant to Section 6.02, shall remain in effect with respect to each patent that is included in the Licensed Patents, until the expiration of the last to expire of such patents.

Section 6.02    Termination.

(a)    Licensor shall have the right to terminate this Agreement by written notice to Licensee if Licensee materially breaches this Agreement and such breach is not cured within ninety (90) days after written notice is given to Licensee specifying the breach.

(b)    If Licensee directly or indirectly challenges the validity, enforcement, inventorship or ownership of any patent or patent application included in the Licensed Patents, or assists any third Person to conduct any such challenge, then Licensor may, upon thirty (30) days’ written notice to Licensee, terminate this Agreement in its entirety; provided, however, that Licensor will not have the right to terminate this Agreement under this Section 6.02(b) if the applicable challenge is dismissed or withdrawn within thirty (30) days of Licensor’s notice to Licensee under this Section 6.02(b) and not thereafter continued.

Section 6.03    Survival. The provisions of this Section 6.03 and of Articles 1, 3, 4, 5, 7 and 8 shall survive any expiration of this Agreement. Upon expiration of this Agreement, the license granted to Licensee herein shall immediately terminate.

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ARTICLE VII.

RISK ALLOCATION

Section 7.01    Indemnification. Licensee will defend, indemnify and hold harmless Licensor and its subsidiaries, parent corporations, affiliates, officers, directors, partners, employees, agents, successors and assigns (collectively, the “Licensor Indemnitees”) from and against any loss, damage, expense (including reasonable attorney’s fees of Licensor Indemnitees and those that may be asserted by a third party) or liability (“Losses”) arising from any third party claim, suit, or proceeding (“Claims”) arising from or related to: (a) any breach of Licensee’s representations, warranties or covenants under this Agreement; (b) the development, use, manufacture, exploitation, marketing, promotion, distribution, sale, export or import of any Licensed Products by Licensee (or its agents, consultants or employees), and (c) any gross negligence or intentional misconduct by Licensee (or its agents, consultants or employees) in performing its obligations or exercising its rights under this Agreement. The foregoing indemnification action shall not apply in the event and to the extent that a court of competent jurisdiction determines that such Losses or Claims arose as a result of any Licensor Indemnitee’s gross negligence, intentional misconduct or breach of this Agreement.

Section 7.02    Limitation of Liability. WITHOUT LIMITING THE INDEMNIFICATION OBLIGATIONS IN SECTION 7.01, AND EXCEPTING BREACHES OF ARTICLE IV AND EACH PARTY’S FRAUD AND INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR ANY OTHER DAMAGES WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY.

ARTICLE VIII.

MISCELLANEOUS

Section 8.01    Relationship of Parties. For the purposes of this Agreement, each party hereto shall be, and shall be deemed to be, an independent contractor and not an agent, partner, joint venturer, representative or employee of the other party. Neither party shall have authority to make any statements, representations, compromises of rights or commitments of any kind, assume or create any obligations, or to accept process for or take any other action which shall be binding on the other party, except as may be explicitly provided for herein or authorized in writing by the other party.

Section 8.02    Publicity. Neither party shall use any word, name, logo, image, symbol, slogan, sample or design of the other party or the other party’s product, or any quote or statement from an employee, consultant or agent of the other party, in any written or oral advertisement, endorsement or other promotional materials without the prior written approval of an authorized representative of the other party or as otherwise contemplated under this Agreement or another agreement between the parties, such approval not to be unreasonably withheld, conditioned or delayed.

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Section 8.03    Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person or facsimile, (received by the Person to which it is addressed prior to 5 p.m., local time, on a business day for such Person) or by registered or certified mail (postage prepaid, return receipt requested) or by recognized overnight courier service to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8.03):

if to Licensor:

Minerva Surgical, Inc.101 Saginaw Drive

Redwood City, California 94063

Attention: CEO

with a copy (which shall not constitute notice) to:

Wilson Sonsini Goodrich & Rosati P.C.

650 Page Mill Road

Palo Alto, California 94304

if to Licensee:

c/o Boston Scientific Corporation

300 Boston Scientific Way

Marlborough, Massachusetts 01752

Attention: Chief Financial Officer

with copies (which shall not constitute notice) to:

Boston Scientific Corporation

300 Boston Scientific Way

Marlborough, Massachusetts 01752

Attention: Chief Corporate Counsel

And

Latham & Watkins LLP

200 Clarendon Street, 27th Floor

Boston, Massachusetts 02116

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Section 8.04    Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of applicable law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this this Agreement is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the fullest extent possible.

Section 8.05    Entire Agreement; Assignment. This Agreement and each of the exhibits and schedules hereto, together with the Transaction Documents, constitutes the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. This Agreement shall not be assigned or transferred by either party without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned, or delayed, except that either party may assign this Agreement without the other party’s consent to (a) any Affiliate; or (b) a third Person that acquires all of its capital stock, or substantially all of its business or assets to which this Agreement relates, whether by merger, acquisition, change of control or otherwise. No such assignment or transfer will be valid and effective unless and until the assignee agrees in writing to be bound by the provisions of this Agreement. Except as expressly provided in this Section 8.05, any attempted assignment or transfer of this Agreement will be null and void.

Section 8.06    Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and its respective successors and permitted assigns and, except as specifically contemplated or required herein, nothing in this Agreement, express or implied is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 8.07    Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy. The parties hereto agree that irreparable damage may occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to seek specific performance of the terms hereof, in addition to any other remedy at law or equity.

Section 8.08    Governing Law. This Agreement shall be governed by, and construed in accordance with the laws of the State of Delaware applicable to contracts executed in and to be performed in that state, without regard to any conflicts of law principles that may apply.

Section 8.09    Consent to Jurisdiction; Waiver of Jury Trial.

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(a)    EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE COURTS OF THE STATE OF DELAWARE AND TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, FOR THE PURPOSE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND EACH OF LICENSOR AND LICENSEE HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED EXCLUSIVELY IN ANY DELAWARE STATE OR FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR, PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.

(b)    EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS IN ANY OTHER ACTION OR PROCEEDING RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, ON BEHALF OF ITSELF OR ITS PROPERTY, BY THE PERSONAL DELIVERY OF COPIES OF SUCH PROCESS TO SUCH PARTY. NOTHING IN THIS SECTION 8.09 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.

(c)    EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH PARTY HEREBY FURTHER AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH OF THE PARTIES HERETO HEREBY (I) CERTIFIES THAT NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (II) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.09.

Section 8.10    Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.

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Section 8.11    Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or .pdf) in two (2) or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

Section 8.12    Amendment. This Agreement may not be amended except by an instrument in writing signed by Licensor and Licensee.

Section 8.13    Waiver. Either party to this Agreement may (a) extend the time for the performance of any of the obligations or other acts of the other party, (b) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered by the other party pursuant hereto, or (c) waive compliance with any of the agreements of the other party or conditions to such party’s obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party to be bound thereby. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of either party hereto to assert any of its rights hereunder shall not constitute a waiver of any of such rights.

Section 8.14    Construction.

(a)    Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender; (ii) words using the singular or plural number also include the plural or singular number, respectively; (iii) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement; (iv) the terms “Section”, “Schedule” and “Exhibit” refer to the specified section of, or schedule or exhibit to, this Agreement; (v) the words “including,” “include” and “includes” shall be deemed to be followed by the words “without limitation”; and (vi) the word “or” shall be disjunctive but not exclusive.

(b)    References to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto. References to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.

(c)    The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against either party.

(d)    Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless business days are specified and shall be counted from the day immediately following the date from which such number of days are to be counted.

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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have caused this Agreement to be duly executed and delivered as a sealed instrument by their duly authorized representatives as of the Effective Date.

Signature Page to Non-Exclusive License Agreement (Buyer to Seller)