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1.1 

"Affiliate(s)" shall mean every corporation or entity, which, directly or indirectly, or throughone or more intermediaries, controls, is controlled by, or is under common control with Licensee, as well as every officer and director of any such corporation or entity. For the purposes of this definition, the term "control" means (a) beneficial ownership of at least fifty percent (50%) of the voting securities of a business organization with voting securities, or (b) a fifty percent (50%) or greater interest in the net assets or profits of a partnership or business organization without voting securities.

1.2

"Associate(s)" means any individual working under the direction, supervision, and/or controlof the Investigator(s).

1.3

"Investigator(s)" means Dr. Leland Shapiro and/or Dr. Gregory B. Pott, as long as eachInvestigator remains employed by University.

1.4

"Fields of Use" shall mean the fields of use identified inExhibit A.

1.5

"Improvement" shall mean any invention, the practice of which would also require thepractice of an invention claimed in or covered by the Patent Rights and which is a modification of the inventions claimed in or covered by the Patent Rights, made by Investigator(s) or Associate(s).

1.6 

"Know-How" shall mean University's proprietary information which has been created,developed, and fixed in any tangible medium of expression, including, but not limited to, technical information, specifications, standards, devices, models, techniques, processes, methods, formulae, documents, drawings and materials ("Technical Information"), as well as all information, knowledge, assistance, trade practices and secrets, and improvements thereto, divulged, disclosed, or in any way communicated to Licensee under this Agreement, unless such information was, at the time of disclosure, or thereafter becomes a part of the general knowledge or literature which is generally available for public use from other lawful sources and which is directly related to the use of, or desirable for the practice of, or assists in the use or practice of, the licensed Patent Rights. Know-How specifically includes, without limitation, any Technical Information that relates to the discovery of the underlying technology covered by the Patent Rights and any Technical Information including without limitation, any publications, patents and/or patent applications that may preclude or interfere with Licensee's rights to develop, execute or commercialize the Patent Rights.

1.7 

"Licensed Process(es)" shall mean any process, art, or method which is covered in wholeor in part by an issued, unexpired claim or a pending claim contained in the Patent Rights or that incorporates or makes use of Know-How.

1.8 

"Licensed Product(s)" shall mean any:

 

(a)product or part thereof that is covered in whole or in part by an issued, unexpired claim or a pending claim contained in the Patent Rights or that incorporates or makes use of Know-How; or

 

(b)product, chemical composition, apparatus, or part thereof that is manufactured or discovered by using a Licensed Process(es) or is employed to practice a Licensed Process(es); or

 

(c)product produced, discovered, manufactured or created through the use of any Licensed Product defined in §1.9(a) or §1.9(b).

1.9

"Net Sales" shall mean the total gross receipts for sales of Licensed Products or practice ofLicensed Processes by or on behalf of Licensee, and its Affiliates, and from leasing, renting, or otherwise making Licensed Products available to others without sale or other dispositions, whether invoiced or not, less returns and allowances, packing costs, insurance costs, freight out, taxes or excise duties imposed on the transaction (if separately invoiced and paid), and wholesaler and cash discounts in amounts customary in the trade to the extent actually granted. No deductions shall be made for commissions, or for the costs of collections. Net Sales shall also include the fair market value of any non-cash consideration received by Licensee, and its Affiliates, for the sale, lease, or transfer of Licensed Products or Licensed Processes.

 

a.the United States and foreign patents and/or patent applications and/or provisional patent applications listed in Exhibit B;

 

b.United States and foreign patents issued from the applications listed in Exhibit B and from divisionals and continuations of these applications;

 

c.claims of U.S. and foreign continuation-in-part applications, and of the resulting patents, which are directed to subject matter specifically described in the U.S. and foreign applications listed in Exhibit B;

 

d.claims of all foreign patent applications, and of the resulting patents, which are directed to subject matter specifically described in the United States patents and/or patent applications described in this Subsection; and

 

e.any reissues of United States patents described in this Subsection.

 

a.a non-exclusive, royalty-bearing license to use the Know-How in the Territory and within the Fields of Use; and

 

b.an exclusive, royalty-bearing license to University's Patent Rights in the Territory to make, use, sell, lease, offer to sell, and import any Licensed Products in the Fields of Use and to practice any Licensed Processes in the Fields of Use.

2.2

All Know-How in the possession of University as of the Effective Date shall be delivered toLicensee prior to or on the Effective Date in written, oral or other form of communication. University shall its best efforts to ensure that Licensee is provided with all Know-how due under this Agreement.

2.3

Notwithstanding the terms as set forth in Section 2.2, if, at any time during the Term of thisAgreement, University discovers Know-How that should have been provided pursuant to Section 2.2, University shall promptly notify Licensee of the omission and provide any such Know-How due under Section 2.2 to Licensee within thirty days of such written notice.

2.4

Notwithstanding the terms as set forth in Section 2.2, if, at any time during the Term of thisAgreement, Licensee discovers Know-How that should have been provided pursuant to Section 2.2, Licensee shall request the Know-How in writing from University and University shall provide any such Know-how due under Section 2.2 to Licensee within thirty days of the written request.

2.5

This Agreement confers no license or rights by implication, estoppel, or otherwise underany patent applications or patents of University other than licensed Patent Rights regardless of whether such patents are dominant or subordinate to licensed Patent Rights.

2.6

The license grant pursuant to Section 2.1 shall remain in effect regardless of any change instatus of the Investigators, including without limitation, absence or withdrawal of one or both Investigators from further development or execution of the Patent Rights.

2.7

In the event that one or both Investigators are withdrawn from further development orexecution of the Patent Rights, Licensee reserves the right to select an appropriate replacement, the replacement to be selected at Licensee's discretion.

3.1

Improvements: In the event that University develops any Improvements to the inventions claimed in the Patent Rights, then each such Improvement will be considered part of this Agreement for no additional consideration.

3.2

 

a.Provided that the Investigator(s) is/are at the time obligated to assign intellectual property to University and is/are involved as employee(s), board member(s), consultant to or 10% or greater shareholder of Licensee, in the event that the Investigator(s) or any Associates make any invention in the Fields of Use, the practice of which would not require the practice of an invention claimed in or covered by the Licensed Patent Rights ("Independent Invention"), then provided such Independent Invention is not subject to any prior contractual or legal obligations, the University hereby grants to Licensee an exclusive option ("Option") to obtain the exclusive, worldwide, commercial rights to each Independent Invention on terms and conditions to be negotiated in good faith by the Parties following the exercise by Licensee of the Option.

 

b.University shall disclose each Independent Invention to Licensee in reasonable written detail after the University's Technology Transfer Office receives notification from the Investigator(s) that such Independent Invention has been made, and Licensee shall have ninety (90) days following written receipt of such invention disclosure to exercise the Option with respect to such Independent Invention by delivering to University written notice indicating that Licensee desires to exercise the Option. Upon such notice, the parties shall negotiate in good faith for a period of up to sixty (60) days commercially reasonable terms and conditions for a license under the intellectual property rights relating to such Independent Invention.

4.1

Upon prior written approval by University, such approval not to be unreasonably withheld,Licensee may sublicense to one or more third parties, the rights granted in Section 2 subject to the following limitations:

 

a.

Licensee agrees that any sublicenses granted by it shall impose restrictions and conditions upon sublicensees equivalent in scope to those imposed upon Licensee;

 

c.

Licensee agrees that any sublicenses granted shall adequately protect University's security and property interest in University's Know-How and Patent Rights; and

4.2

Licensee agrees to forward to University a copy of each fully executed sublicenseagreement postmarked within thirty (30) days of the execution of such agreement.

5.1

 

a.Notwithstanding any use of descriptive terms within this Agreement such as "exclusive", this Agreement is subject to all of the terms and conditions of Title 35 U.S.C. §§ 200-204, et seq., ("Bayh-Dole Act") and 37 C.F.R. 401, as such may be amended.

 

b.Further, Licensee agrees to take all reasonable action necessary to enable University to satisfy its obligations hereunder.

5.2

 

a.University shall have the right to practice the Patent Rights and Know-How for its own research and education, including sponsored research, which right shall be transferable to other nonprofit or educational institutions; provided that University takes reasonable steps to avoid the loss of any Patent Rights or any other intellectual property that Licensee does not want disclosed, as a result of such activities and takes reasonable steps to avoid disclosure of Know-How.

 

b.University recognizes the need for Licensee to protect any information and Know- How included in the Patent Rights. University shall have the right to publish any information included in the Patent Rights and the Know-How provided that University, prior to submission to a third party for publication of any information or Know-How included in the Patent Rights ("Proposed Submission"), provides written notice of any Proposed Submission to Licensee, such written notice to include specifics regarding the information to be disclosed in the Proposed Submission and a copy of the Proposed Submission. Licensee shall have twenty (20) days to

6.1

As consideration for the grant of rights under this Agreement,

 

a.Licensee agrees to pay to University a nonrefundable and non-creditable license fee as set forth in Exhibit C.

 

b.Licensee agrees to pay to University an annual, nonrefundable minimum royalty as set forth in Exhibit C. The minimum annual royalty is due and payable on first business day of each calendar year and may be credited against any earned royalties due for Net Sales made that year;

 

c.Licensee agrees to pay University royalties as set forth in Exhibit C;

6.2

No multiple royalties shall be payable because any Licensed Products or LicensedProcesses are covered by more than one of the Patent Rights.

6.3

On sales of Licensed Products by Licensee to sublicensees or on sales made in other thanarm's-length transactions, the value of the Net Sales attributed under this Section to such a transaction shall be that which would have been received in an arm's-length transaction, based on a like transaction at that time.

6.4

 

a.Unless otherwise provided herein, all payments required under this Agreement shall be due within thirty (30) days of written notice from University.

 

b.Payments past due shall bear interest at the rate of one and one-half percent (1 1/2%) per month compounded, or the maximum interest rate allowed by applicable law, whichever is less.

 

c.All payments to Colorado are in United States Dollars, made payable to "The Regents of the University of Colorado" and mailed to:

7.1

 

a.Licensee shall, without request by University, within sixty (60) days following the end of each fiscal quarter of Licensee and sixty (60) days following the end of Licensee's fiscal year, render to University written reports of the Net Sales of Licensed Products and/or Licensed Processes subject to royalty hereunder made during the prior three (3) month period and shall simultaneously pay to University the royalties due on such Net Sales, if any, in United States Dollars. Licensee shall not be required to provide any such reports during the period prior to its initial sale of Licensed Products and/or Licensed Processes.

 

b.Minimum annual royalties, if any, which are due University for any fiscal year, shall be paid by Licensee along with the written report due under this Agreement with respect to such fiscal year.

 

c.Unless otherwise agreed to by the Parties, the written report shall be in the substantially the same form as Exhibit D.

7.2

 

a.Licensee shall keep accurate records and shall compel its Affiliates and sublicensees to keep accurate records, in sufficient detail to reflect its operations under this Agreement and to enable the royalties accrued and payable under this Agreement to be determined.

 

b.Such records shall be retained for at least three (3) years after the close of theperiod to which they pertain, or for such longer time as may be required to finally resolve any question or discrepancy raised by University.

7.3

 

c.If an inspection shows an underreporting or underpayment in excess of five percent (5%) for any twelve (12) month period, then Licensee shall reimburse University for the cost of the inspection and pay the amount of the underpayment including any interest as required by this Agreement.

8.1

Both University and Licensee (hereinafter, "Party" or "Parties") shall vigilantly protect theconfidential information related to the Patent Rights and Know-How from disclosure to third parties; and no such disclosure shall be made without the disclosing Party's written permission.

8.2

All written documents containing confidential information and other material in tangible formreceived by either Party under this Agreement shall remain the property of the disclosing Party, and such documents and materials, together with copies of excerpts thereof, shall promptly be returned to disclosing Party upon request, except one copy may be retained for archival purposes.

8.3

Licensee acknowledges that University is subject to the Colorado Open Records Act(C.R.S. § 24-72-201, et seq.). All plans and reports marked "Confidential" shall be treated by University as confidential to the extent permitted under § 24-72-204.

9.1

Licensee shall use commercially reasonable efforts to bring Licensed Products andLicensed Processes to market through a thorough, vigorous and diligent program for exploitation of the Patent Rights, to develop internal or external manufacturing capabilities, to continue active, diligent marketing efforts, and to satisfy the needs of such market with the Licensed Products and Licensed Processes throughout the life of this Agreement.

9.2

Licensee acknowledges and agrees to the performance and diligence Milestones defined inExhibit E provided however that specific dates for such milestones may be adjusted if required due to developments beyond the reasonable control of Licensee. It may be necessary to repeat or redesign an experiment (defined for the purpose of this Section 9.2 as "Experimental Delays"). University hereby recognizes that any such Experimental Delays are beyond the reasonable control of Licensee. In the event that Licensee's performance is adversely affected by any such Experimental Delays, University shall take reasonable steps to adjust the Milestones accordingly. No additional changes to the dates of such Milestones will be made without the written consent, which will not be unreasonably denied, of University. In the event that the Parties fail to agree upon adjustment of the Milestones, then the dispute will be resolved in accordance with Section 14.7 herein.

9.3

Licensee agrees to use commercially reasonable efforts to develop a sublicensing programto commercialize Licensed Products and Licensed Processes in any Fields of Use or Territory that Licensee decides not to exploit for its own benefit.

10.1 

Licensee shall reimburse University within thirty (30) days from the Effective Date anamount representing all patent expenses incurred by University prior to the Effective Date as set forth in Exhibit C.

10.2 

Licensee Rights:

 

 

 

(i).Licensee's obligations under this Subsection shall include, without limitation, an obligation to inform University in a timely manner that Licensee will not pursue patents in any foreign countries where patent protection may be available such that University may prosecute patents in such countries if University so desires.

 

(ii).If University pursues such foreign patent protection, then from that time forward all such subject patent applications and any patents arising there from shall no longer be considered Patent Rights under this Agreement and Licensee shall forfeit all rights under this Agreement to such patent applications and any patents arising there from. University shall be responsible for all costs associated with those patent applications and patents it decides to pursue and maintain.

11.1 

 University and Licensee agree to inform the other Party promptly in writing of anysuspected infringement of the Patent Rights by a third party. Licensee shall have, for a period of 120 days from the date of any notice of infringement of the Patent Rights, the first right to institute suit against such third party and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees through appeal) incurred by Licensee in the action, second to pay University an amount equal to the Sublicensing Royalty that University would otherwise be entitled to at that time pursuant to Exhibit C to this Agreement if the amount remaining after the reimbursement of costs and expenses was treated as sublicensing revenue, and third any remaining balance shall be paid to Licensee.

 

a.If both University and Licensee agree to institute suit jointly, the suit shall be brought in both their names, the out-of-pocket costs thereof shall be borne equally, and any recovery or settlement, after the reimbursement of costs and expenses (including reasonable attorneys' fees incurred in the action) shall be shared equally.

 

b.University and Licensee shall agree to the manner in which they shall exercise control over such suit. Each Party, at its option, may be represented by separate counsel of its own selection, the fees for which shall be paid by University.

 

c.In the absence of an agreement to institute a suit jointly, University may, but is not obligated to, institute suit, and at its option, join Licensee as a plaintiff. If University decides to institute suit, it shall notify Licensee in writing.

 

d.Licensee's failure to notify University in writing within thirty (30) days after the date of University's notice pursuant to Section 11.2(c) above, that it will join in enforcing the Patent Rights pursuant to the terms hereof, shall be deemed conclusively to be Licensee's assignment to University of all rights, causes of action, and damages resulting from any such alleged infringement. University shall bear the entire cost of such litigation and shall be entitled to retain the entire amount of any recovery or settlement.

 

e.In the absence of an agreement to institute a suit jointly, and if University does not notify Licensee of its intent to pursue legal action within ninety (90) days, as provided in Subsections 11.1 — 11.2, Licensee may again have the right to institute suit. In such event, Licensee shall bear the entire cost of such litigation and any recovery or settlement shall be applied first to defray the unreimbursed costs and expenses (including reasonable attorneys' fees) incurred by Licensee in the action, second to pay University an amount equal to the Earned Royalty (as that term is

 

a.defend the suit in its own name, at its own expense, and on its own behalf for presumably valid claims in the Patent Rights;

 

b.in any such suit, ultimately to enjoin infringement and to collect for its use, damages, profits, and awards of whatever nature recoverable for such infringement consistent with this Section; and

 

b. settle any claim or suit for declaratory judgment involving the Patent Rights, except that Licensee shall have no right to deny the validity of any patent, patent claim, or patent application included in the Patent Rights in any compromise or settlement of any claim or suit for declaratory judgment without the express prior written consent of University; provided however, that University shall have the first right to take such actions described in this Subsection and shall have a continuing right to intervene in such suit. Licensee shall take no action to compel University either to initiate or to join in any such declaratory judgment action.

 

c.If Licensee elects not to defend against such declaratory judgment action, University, at its option, may do so at its own expense and shall be entitled to retain the entire amount of any recovery or settlement.

12.1

Representations. University is the owner of the Patent Rights and has full right and authority to enter into this Agreement.

12.2

 

 

 

(ii).A warranty or representation that the Patent Rights or anything made, used, sold or otherwise disposed of under the License will or will not infringe patents, copyrights or other rights of third parties; or

 

(iii).An obligation to furnish any know-how or technology not agreed to in this Agreement, to bring or prosecute actions or suits against third parties for infringement (except to the extent described in Subsections 11.1 — 11.2), or to provide any services other than those specified in this Agreement.

12.4 

 Insurance: Licensee shall obtain general liability insurance, including product liability insurance, on such terms and in such amounts as are reasonable and customary within its industry.

13.2

 

(i).pays all undisputed amounts due as well as all non-cancelable costs to University through the termination date;

 

(ii).submits a final report of the type described in Section 7;

 

(iii).returns any confidential materials provided to Licensee by University in connection with this Agreement;

 

(iv).suspends its use and sales of the Licensed Product(s) and Licensed Process(es); provided however, that subject to making the payments required by Section 6 and the reports required by Section 7, Licensee may, for a period of ninety (90) days after the effective date of such termination, sell all Licensed Products which may be in inventory; and

 

(v).provides University the right to access any regulatory information filed with any U.S. or foreign government agency with respect to Licensed Products and Licensed Processes.

 

(ii).Licensee becomes insolvent, files a petition in bankruptcy, or has such a petition filed against it and such petition is not dismissed within sixty (60) days of the filing date, or

 

(iii).Licensee is in breach or default of this Agreement other than those occurrences listed in this Subsections (i) and (ii), and Licensee fails to cure the breach or default within thirty (30) days of written notice of the breach or default unless such breach or default is of a character that cannot be cured within thirty (30) days, in which event, Licensee shall not be deemed to be in default hereunder unless it fails to diligently commence and pursue action to cure such default during such thirty day period. Events constituting a breach or default shall include, but are not limited to, the following:

 

(a)  failure by Licensee to meet any material due diligence requirement of Exhibit E; in this event, University retains the right to convert this Agreement to a non-exclusive Agreement.

14.1

Assignment: This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Parties hereto. Licensee may not assign its rights in this Agreement without prior written approval by University, such approval not to be unreasonably withheld or delayed. Notwithstanding the foregoing, with respect to the proposed agreement between Apro Bio Pharmaceutical Corporation and MaxCure Pharmaceuticals, Inc., University accepts in advance and hereby acknowledges that the License Agreement may be assigned to and will inure to the benefit of the surviving Colorado Company.

14.3

Use of Names and Marks: Licensee agrees not to identify University in any promotional advertising, press releases, sales literature or other promotional materials to be disseminated to the public or any portion thereof without University prior written consent in each case, except that (a) Licensee may state that it has a license for the Patent Rights from University; (b) Licensee may disclose as may be required by law, regulation, judicial or administrative process or in accordance with applicable professional standards, rules, or in connection with any public or private offerings or disclosures required by law; or (c) to the extent such information shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public). Licensee further agrees not to use the name of University or any University faculty member, employee or student or any trademark, service mark, trade name, copyright or symbol of University, without the prior written consent of the University, entity or person whose name is sought to be used, which consent shall not be unreasonably withheld or delayed.

14.4

Marking: Licensee agrees to:

 

a.Cause Licensed Products or the product of Licensed Processes sold under this license to be marked with the notice of the patent numbers or patent pending, as may be appropriate.

 

b.Use best efforts to comply with all laws and regulations of the United States and any other country as appropriate concerning or controlling the import or export of the Licensed Products, data, software, laboratory prototypes or other commodities. University makes no representation that a license or consent for export will not be required by applicable governmental agencies, or if required, that it will be issued.

 

c.Use best efforts to comply with all applicable statutes, regulations, and guidelines, including applicable governmental regulations, policies and guidelines in its use of any University-supplied materials. Licensee agrees not to use the materials for research involving human subjects or clinical trials in the United States without complying with 21 C.F.R. Part 50 and 45 C.F.R. Part 46 (as those regulations may be amended from time to time). Written notification to University of research involving human subjects or clinical trials outside of the United States shall be given no later than sixty (60) days prior to commencement of such research or trials.

 

a.Any disputes not so resolved shall be referred to senior executives, who shall meet at a mutually acceptable time and location within thirty (30) days of the Notice Date and shall attempt to negotiate a settlement.

 

b.If the senior executives fail to meet within thirty (30) days of the Notice Date, or if the matter remains unresolved for a period of sixty (60) days after the Notice Date, the Parties hereby irrevocably submit to the jurisdiction of a court of competent jurisdiction in the State of Colorado, and, by execution and delivery of this Agreement, each (i) accepts, generally and unconditionally, the jurisdiction of such court and any related appellate court, and (ii) irrevocably waives any objection it may now or hereafter have as to the venue of any such suit, action or proceeding brought in such court or that such court is an inconvenient forum.

14.9 

Severability: The provisions and clauses of this Agreement are severable, and in the event that any provision or clause is determined to be invalid or unenforceable under any controlling body of the law, such invalidity or unenforceability will not in any way affect the validity or enforceability of the remaining provisions and clauses hereof.

 

1.

Food and Waterborne Viruses

 

2.

Additional viral encephalitides

  ·

U.S. Patent No. 6,846,605 "Inhibitors of serine protease activity, methods and compositions for the treatment of viral infections" (related to Case # CU9014H).

  ·

U.S. Patent Application No. 11/044,224 "Inhibitors of serine protease activity, methods and compositions for the treatment of viral infections" (Continuation application of Patent No. 6,846,605).

  ·

Provisional Patent Application No. 60/742,191 "Alpha-1-antitrypsin inhibition of disease and conditions mediated by binding to cell-associate actin" (related to Case # CU1428H)

  ·

Provisional Application No. 60/913,174 Title: Compositions and Methods of Use for Alpha­AntiTrypsin Having No Significant Serine Protease Inhibitor Activity (CU1697H US)

  ·

U.S. Patent Application No.11/719,200 "Compositions and Methods For Treating Actin- Mediated Conditions" (CU1428H US1)

1.

Licensee shall deliver to University:

 

(a)

Within ninety (90) days of the Effective Date, a comprehensive business plan that describes the Licensee's technology commercialization strategy, including product development plans and timelines, marketing strategies, and plans for obtaining necessary financing. The business plan shall include forecasts showing the funds, personnel, and time budgeted and planned for development of the Patent Rights and Know-How; and

 

(b)

Within twelve (12) months of execution of the Agreement the Licensee will have raised at least five hundred thousand dollars ($500,000) through third party investments directed to the development of the Patent Rights.

2.

Within 60 days of the Effective Date (First Option Period), Licensee will negotiate with University in an effort to enter into a Sponsored Research Agreement in the Fields of Use for the benefit of Investigator(s) of as much as five hundred thousand dollars ($500,000), the work plan of such sponsored research to be mutually agreed upon by Licensee and University. University hereby acknowledges that for Licensee to agree, any such plan of sponsored research must be reasonably advantageous to Licensee and its efforts to obtain commercialization of Licensed Product. In the event that the Parties reach an agreement during the First Option Period, Licensee reserves the right to raise the funds for the sponsored research for a period of 4-6 months after entering into the Sponsored Research Agreement. In the event that the Parties cannot reach an agreement during the First Option Period, Licensee shall, within ten days of the end of the First Option Period, provide notice of such failure to University. For a period of 6 months of the date of the notice of failure to reach an agreement (Second Option Period), the Parties agree to negotiate in good faith to reach mutually agreed upon terms in an effort to enter into a Sponsored Research Agreement. In the event Parties reach an agreement during the Second Option Period, Licensee reserves the right to raise the funds for a period of 4-6 months after entering into the Sponsored Research Agreement. If the Parties fail to reach an agreement within the Second Option Period, Licensee is no longer under an obligation to negotiate a Sponsored Research Agreement in the Fields of Use.