`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before The Honorable MaryJoan McNamara
`Administrative Law Judge
`
`
`
` Inv. No. 337-TA-1206
`
`
`In the Matter of
`
`CERTAIN PERCUSSIVE MASSAGE
`DEVICES
`
`
`
`
`MOTION TO TERMINATE THE INVESTIGATION
`AS TO RESPONDENT ADDADAY LLC
`
`Pursuant to 19 C.F.R. §§ 210.21(a)(2) and 210.21(b), Complainant Hyper Ice, Inc.
`
`(“Hypericee”) hereby moves to terminate this Investigation as to Respondent Addaday LLC
`
`(“Addaday”) pursuant to the provisions of 19 C.F.R. § 210.21(b) and based upon the executed
`
`Global Settlement Agreement between Hyperice and Addaday submitted herewith as Exhibit A.
`
`As indicated in Hyperice’s Complaint, Hyperice and Addaday had previously entered into a
`
`settlement with respect to Hyperice’s U.S. Patent No. D855,822 (“the ‘822 Patent”). A copy of
`
`that Settlement Agreement is attached hereto as Exhibit B. Pursuant to Commission Rule
`
`210.21(b), there are no other agreements, written or oral, express or implied between Hyperice and
`
`Addaday concerning the subject matter of the investigation.
`
`Ground Rule 2.2 Certification
`
`Counsel for Hyperice certifies that they made good-faith efforts to notify the parties of the
`
`subject matter of this Motion to avoid any opposition. The Commission Staff attorney informed
`
`Hyperice that the Staff will take a position after reviewing the motion, and counsel for those
`
`Respondents that have appeared in this Investigation indicated that those Respondents do not
`
`oppose.
`
`4815-0106-7210.2
`337-TA-1097: Motion to Terminate the Investigation
`
`
`1
`
`

`

`
`
`Terminating the Investigation is Appropriate and in the Public Interest
`
`“Any party may move at any time to terminate an investigation in whole or in part as to
`
`any or all respondents on the basis of a settlement, a licensing or other agreement.” Commission
`
`Rule 210.21(a)(2); see also Commission Rule 210.21(b)(1) (“An investigation before the
`
`Commission may be terminated as to one or more respondents pursuant to section 337(c) of the
`
`Tariff Act of 1930 on the basis of a licensing or other settlement agreement.”).
`
`Hyperice submits that termination of this investigation as to Addaday will not adversely
`
`affect the public interest because it will not affect public health and welfare, competitive conditions
`
`of the U.S. economy, the production of like or directly competitive articles in the United States, or
`
`U.S. consumers.
`
`For the foregoing reasons, Hyperice respectfully requests the ALJ issue an Initial
`
`Determination terminating this Investigation as to Addaday.
`
`Respectfully submitted,
`
`Dated: September 4, 2020
`
`
`
`
`
`
`2
`4815-0106-7210.2
`337-TA-1206: Motion to Terminate the Investigation as to Addaday LLC
`
`
`
`
`
`
`
`
`
`/s/ Brian G. Arnold
`Brian G. Arnold
`Jonathan Pink
`LEWIS BRISBOIS BISGAARD & SMITH
`LLP
`633 West 5th Street, Suite 4000
`Los Angeles, CA 90071
`Telephone: (213) 250-1800
`Facsimile: (213) 250-7900
`
`Paul M. Bartkowski
`ADDUCI, MASTRIANI &
`SCHAUMBERG, LLP
`1133 Connecticut Avenue, NW, 12th Floor
`Washington, DC 20036
`Telephone: (202) 467-6300
`Facsimile: (202) 466-2006
`
`Counsel for Hyper Ice, Inc.
`
`

`

`EXHIBIT A
`
`

`

`GLOBAL SETTLEMENT AGREEMENT
`
`
`This GLOBAL SETTLEMENT AGREEMENT (“Agreement”), made effective as of August 31, 2020
`(the “Effective Date”), is entered into by and between Addaday LLC, a California limited liability
`company with a place of business located at 2500 Broadway, Fl25, Santa Monica, CA 90404
`(“Addaday”), on the one hand, and Hyper Ice, Inc., a California corporation, with a place of business
`located at 525 Technology Drive, Irvine CA 92618 (“Hyper Ice”), on the other hand. Addaday and
`Hyper Ice may individually be referred to as a “Party” or collectively as the “Parties.”
`
`WHEREAS, on June 16, 2020 Hyper Ice filed a Complaint in ITC Proceeding Inv. No. 337-TA-1206
`captioned In the Matter of Certain Percussive Massage Devices (“the ITC Complaint”), which named
`nineteen (19) different respondents including Addaday and alleged that each of the respondents
`infringed one or more of U.S. Design Patent No. D855,822, U.S. Patent No. 10,561,574, and U.S.
`Design Patent No. D886,317 (“the ITC Investigation”). In particular, the ITC Complaint alleged that
`Addaday’s discontinued BioZoom (“the Discontinued BioZoom”) massage gun infringed Hyper Ice’s
`U.S. Patent No. 10,561,574;
`
`WHEREAS, on August 6, 2020 Addaday filed a Complaint for Declaratory Judgement (the “2020
`CDCA Complaint”) in the United States District Court for the Central District of California captioned
`Addaday LLC v. Hyper Ice, Inc., Case No. 8:20-cv-1459 requesting a Declaratory Judgment of non-
`infringement of U.S. Design Patent Nos. D855,822 and D886,317 and U.S. Patent No. 10,561,574;
`invalidity of U.S. Design Patent Nos. D855,822 and D886,317 and U.S. Patent No. 10,561,574; and
`alleging breach of settlement agreement; defamation; intentional interference with contractual
`relations; intentional interference with prospective economic relations; and unfair competition (the
`“2020 CDCA Litigation”);
`
`WHEREAS, each of the Parties expressly deny each of the Claims asserted in each of the actions; and
`
`WHEREAS, the Parties now desire to Settle each of the actions with respect to each other without
`further activity in either one.
`
`NOW, THEREFORE, in consideration of the covenants, agreements, obligations, premises, and
`promises set forth hereinbelow, and for good and adequate compensation, the Parties agree as follows:
`
`1.
`Dismissal. Within five (5) calendar days of the Effective Date of this Agreement, Addaday will
`file a Dismissal of the 2020 CDCA Litigation With Prejudice in the Central District of California.
`Within five (5) calendar days of the Effective Date of this Agreement, Hyper Ice will file a Motion
`requesting that the ITC dismiss the ITC Investigation with respect to Addaday. The Dismissal and the
`Motion to Dismiss shall specify that each Party shall bear its own costs, expenses, and attorneys’ fees.
`
`2.
`Addaday’s Covenant re Discontinued BioZoom. Addaday covenants not to manufacture, have
`manufactured, offer for sale, sell, or import the Discontinued BioZoom or any product that infringes
`the Patents asserted in the ITC Investigation, now or in the future.
`
`4814-7463-9048.3
`Page 1 of 4
`
`GLOBAL SETTLEMENT AGREEMENT
`
`
`
`
`

`

`
`3.
`Covenant Not To Sue. Hyper Ice covenants not to sue Addaday and/or anyone up or down the
`chain of supply, now or in the future, for alleged infringement of Hyper Ice’s intellectual property by
`the Discontinued BioZoom based on any sales of the Discontinued BioZoom on or before the Effective
`Date.
`
`4.
`Jurisdiction In Event Of Breach. In the event of a breach of this Settlement Agreement by either
`Party, the Parties agree that the U.S. District Court for the Central District of California shall retain
`jurisdiction to enforce this Global Settlement Agreement.
`
`5.
`The Parties agree that this Agreement is intended to be a full and final compromise, release,
`and settlement of any and all disputes of any existing claims against one another related to either the
`ITC Investigation or the 2020 CDCA Litigation. The Parties hereby waive any and all statutes or codes
`that may apply that were designed to “protect” people or entities from waiving unknown claims.
`Specifically, the Parties expressly acknowledge that each has been advised of the provisions of Section
`1542 of the California Civil Code, and, to the extent that Section will apply to this Settlement
`Agreement, each Party knowingly and expressly waives any rights and benefits available under the
`provisions of said §1542, which states:
`
`
`“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
`CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
`EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
`RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
`MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
`DEBTOR OR RELEASED PARTY.”
`
`
`6.
`Each Party further represents that s/he or it has read and understands this Agreement, that s/he
`or it has actually consulted with experienced independent Intellectual Property legal Counsel regarding
`the rights, responsibilities, and obligations set forth and discussed herein, and that s/he or it has signed
`this Agreement without duress, coercion, or undue influence. Each Party hereby authorizes and directs
`its attorneys to execute any papers, and to take such other actions, that may be necessary or appropriate
`to carry out the terms of this Agreement. In making this Agreement, each Party has not relied upon
`any statement or representation pertaining to this matter made by any other Party, or by any other
`person or persons, whether representing a Party or not, other than those representations that are stated
`expressly herein, but, rather, each has relied solely upon his, her, or its own attorneys, insurers,
`representatives, agents, and employees. The Parties further acknowledge and agree that this Agreement
`has been diligently and completely negotiated and is the final product of drafts and revisions prepared
`after extensive review, discussion, and negotiations. In consideration of such negotiations, it is agreed
`that any prior drafts of this Agreement shall not be considered in the interpretation of this Agreement
`or any provisions contained herein, and, without limiting the generality of the foregoing, it is agreed
`that no inferences, conclusions, or interpretations are to be made based upon the fact that: (i) a particular
`provision contained in an earlier draft is not included in the executed version of this Agreement; (ii) a
`particular provision that is included in the executed version of this Agreement was not contained in a
`
`4814-7463-9048.3
`Page 2 of 4
`
`GLOBAL SETTLEMENT AGREEMENT
`
`
`
`
`

`

`prior draft; or (iii) a particular provision has been modified from a version contained in a prior draft.
`The language contained herein shall in all events be construed simply in accordance with its fair
`meaning, and, for purposes of applicable law regarding construction of contracts, this Agreement, and
`each of the provisions contained herein, shall not be deemed to have been drafted by or for any
`particular Party, and shall not be construed for or against any particular Party on the basis of which
`Party drafted this Agreement, or any particular provision herein, towards which end, all Parties hereby
`expressly waive any benefit that might arise from California Civil Code §1654, or any similar rule or
`canon of construction.
`
`7.
`This Agreement shall be construed and controlled in accordance with the local laws of the State
`of California without regard to any conflict of law provisions. The Parties hereby consent to the
`continuing jurisdiction of the United States District Court for the Central District of California to
`enforce compliance with this Agreement.
`
`8.
`This Agreement may be executed in two (2) or more counterparts, each of which shall be
`deemed to constitute an original but all of which together shall constitute one and the same instrument.
`Any signature evidenced by fax or scanned and emailed shall have the same force and effect as an
`original ink signature, provided that it is actually the signature of the person it purports to be.
`
`9.
`The terms and the provisions of this Agreement shall be binding upon and inure to the benefit
`of the Parties and her, his, or its then current employees, employers, independent contractors, officers,
`directors, members, principals, assigns, agents, representatives, corporations, related companies,
`affiliates, partners, associates, shareholders, spouses, successors, heirs, executors, administrators,
`devisees, transferees, and assigns. Each of the signatories to this Agreement, by her, his, or its signature
`below, represents and warrants that s/he or it is competent and duly authorized to enter into, execute,
`deliver, and perform this Agreement on behalf of the Party on whose behalf s/he or it purports to sign;
`that s/he or it has the power and authority to bind the Party for whom he has signed; that this Agreement
`constitutes a legal, valid, and binding obligation; and that this Agreement is enforceable in accordance
`with its own terms. Each Party represents and warrants that s/he or it is the sole owner of the claims
`that are the subject of this Agreement and that none of those claims has been exclusively licensed,
`assigned, or transferred to any other person or entity that is not a Party hereto.
`
`10.
`If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction,
`in whole or in part, to be invalid, illegal, or unenforceable in any respect, for any reason, the validity,
`legality and enforceability of the remainder of that provision, any other remaining provisions, and of
`the entire Agreement shall not in any way be affected or impaired thereby, and shall be interpreted, to
`the extent possible, to achieve the purposes as originally expressed with the provision found to be
`invalid, illegal or unenforceable. Each provision hereof is intended to be severable, and the validity,
`legality, or enforceability of any provision of this Agreement shall not affect the validity, legality, or
`enforceability of the remainder of the Agreement.
`
`11.
`No amendment, modification, change, or variance from this Agreement shall be binding on any
`of the Parties unless mutually agreed to by each of the Parties that is affected thereby, and unless the
`
`4814-7463-9048.3
`Page 3 of 4
`
`GLOBAL SETTLEMENT AGREEMENT
`
`
`
`
`

`

`GLOBAL SETTLEMENT AGREEMENT
`
`
`This GLOBAL SETTLEMENT AGREEMENT ((cid:179)Agreement(cid:180)), made effective as of August 25, 2020
`(the (cid:179)Effective Date(cid:180)), is entered into b(cid:92) and between Addada(cid:92) LLC, a California limited liabilit(cid:92)
`compan(cid:92) with a place of business located at 2500 Broadwa(cid:92), Fl25, Santa Monica, CA 90404
`((cid:179)Addada(cid:92)(cid:180)), on the one hand, and H(cid:92)per Ice, Inc., a California corporation, with a place of business
`located at 15440 Laguna Can(cid:92)on Road, Suite 230, Irvine CA 92618 ((cid:179)H(cid:92)per Ice(cid:180)), on the other hand.
`Addada(cid:92) and H(cid:92)per Ice ma(cid:92) individuall(cid:92) be referred to as a (cid:179)Part(cid:92)(cid:180) or collectivel(cid:92) as the (cid:179)Parties.(cid:180)
`
`WHEREAS, on June 16, 2020 H(cid:92)per Ice filed a Complaint in ITC Proceeding Inv. No. 337-TA-1206
`captioned I(cid:81) (cid:87)(cid:75)e Ma(cid:87)(cid:87)e(cid:85) (cid:82)f Ce(cid:85)(cid:87)a(cid:76)(cid:81) Pe(cid:85)c(cid:88)(cid:86)(cid:86)(cid:76)(cid:89)e Ma(cid:86)(cid:86)a(cid:74)e De(cid:89)(cid:76)ce(cid:86) ((cid:179)the ITC Complaint(cid:180)), which named
`nineteen (19) different respondents including Addada(cid:92) and alleged that each of the respondents
`infringed one or more of U.S. Design Patent No. D855,822, U.S. Patent No. 10,561,574, and U.S.
`Design Patent No. D886,317 ((cid:179)the ITC Investigation(cid:180)). In particular, the ITC Complaint alleged that
`Addada(cid:92)(cid:182)s discontinued BioZoom ((cid:179)the Discontinued BioZoom(cid:180)) massage gun infringed H(cid:92)per Ice(cid:182)s
`U.S. Patent No. 10,561,574;
`
`WHEREAS, on August 6, 2020 Addada(cid:92) filed a Complaint for Declarator(cid:92) Judgement (the (cid:179)2020
`CDCA Complaint(cid:180)) in the United States District Court for the Central District of California captioned
`Addada(cid:92) LLC (cid:89). H(cid:92)(cid:83)e(cid:85) Ice, I(cid:81)c., Case No. 8:20-cv-1459 requesting a Declarator(cid:92) Judgment of non-
`infringement of U.S. Design Patent Nos. D855,822 and D886,317 and U.S. Patent No. 10,561,574;
`invalidit(cid:92) of U.S. Design Patent Nos. D855,822 and D886,317 and U.S. Patent No. 10,561,574; and
`alleging breach of settlement agreement; defamation; intentional interference with contractual
`relations; intentional interference with prospective economic relations; and unfair competition (the
`(cid:179)2020 CDCA Litigation(cid:180));
`
`WHEREAS, each of the Parties expressl(cid:92) den(cid:92) each of the Claims asserted in each of the actions; and
`
`WHEREAS, the Parties now desire to Settle each of the actions with respect to each other without
`further activit(cid:92) in either one.
`
`NOW, THEREFORE, in consideration of the covenants, agreements, obligations, premises, and
`promises set forth hereinbelow, and for good and adequate compensation, the Parties agree as follows:
`
`1.
`Dismissal. Within five (5) calendar da(cid:92)s of the Effective Date of this Agreement, Addada(cid:92) will
`file a Dismissal of the 2020 CDCA Litigation With Prejudice in the Central District of California.
`Within five (5) calendar da(cid:92)s of the Effective Date of this Agreement, H(cid:92)per Ice will file a Motion
`requesting that the ITC dismiss the ITC Investigation with respect to Addada(cid:92). The Dismissal and the
`Motion to Dismiss shall specif(cid:92) that each Part(cid:92) shall bear its own costs, expenses, and attorne(cid:92)s(cid:182) fees.
`
`2.
`Addada(cid:92)(cid:182)s Covenant re Discontinued BioZoom. Addada(cid:92) covenants not to manufacture, have
`manufactured, offer for sale, sell, or import the Discontinued BioZoom or an(cid:92) product that infringes
`the Patents asserted in the ITC Investigation, now or in the future.
`
`4814-7463-9048.2
`Page 1 of 4
`
`GLOBAL SETTLEMENT AGREEMENT
`
`
`
`
`

`

`
`3.
`Covenant Not To Sue. H(cid:92)per Ice covenants not to sue Addada(cid:92) and/or an(cid:92)one up or down the
`chain of suppl(cid:92), now or in the future, for alleged infringement of H(cid:92)per Ice(cid:182)s intellectual propert(cid:92) b(cid:92)
`the Discontinued BioZoom based on an(cid:92) sales of the Discontinued BioZoom on or before the Effective
`Date.
`
`4.
`Jurisdiction In Event Of Breach. In the event of a breach of this Settlement Agreement b(cid:92) either
`Part(cid:92), the Parties agree that the U.S. District Court for the Central District of California shall retain
`jurisdiction to enforce this Global Settlement Agreement.
`
`5.
`The Parties agree that this Agreement is intended to be a full and final compromise, release,
`and settlement of an(cid:92) and all disputes of an(cid:92) existing claims against one another related to either the
`ITC Investigation or the 2020 CDCA Litigation. The Parties hereb(cid:92) waive an(cid:92) and all statutes or codes
`that ma(cid:92) appl(cid:92) that were designed to (cid:179)protect(cid:180) people or entities from waiving unknown claims.
`Specificall(cid:92), the Parties expressl(cid:92) acknowledge that each has been advised of the provisions of Section
`1542 of the California Civil Code, and, to the extent that Section will appl(cid:92) to this Settlement
`Agreement, each Part(cid:92) knowingl(cid:92) and expressl(cid:92) waives an(cid:92) rights and benefits available under the
`provisions of said (cid:134)1542, which states:
`
`
`(cid:179)A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
`CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
`EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
`RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
`MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
`DEBTOR OR RELEASED PARTY.(cid:180)
`
`
`6.
`Each Part(cid:92) further represents that s/he or it has read and understands this Agreement, that s/he
`or it has actuall(cid:92) consulted with experienced independent Intellectual Propert(cid:92) legal Counsel regarding
`the rights, responsibilities, and obligations set forth and discussed herein, and that s/he or it has signed
`this Agreement without duress, coercion, or undue influence. Each Part(cid:92) hereb(cid:92) authori(cid:93)es and directs
`its attorne(cid:92)s to execute an(cid:92) papers, and to take such other actions, that ma(cid:92) be necessar(cid:92) or appropriate
`to carr(cid:92) out the terms of this Agreement. In making this Agreement, each Part(cid:92) has not relied upon
`an(cid:92) statement or representation pertaining to this matter made b(cid:92) an(cid:92) other Part(cid:92), or b(cid:92) an(cid:92) other
`person or persons, whether representing a Part(cid:92) or not, other than those representations that are stated
`expressl(cid:92) herein, but, rather, each has relied solel(cid:92) upon his, her, or its own attorne(cid:92)s, insurers,
`representatives, agents, and emplo(cid:92)ees. The Parties further acknowledge and agree that this Agreement
`has been diligentl(cid:92) and completel(cid:92) negotiated and is the final product of drafts and revisions prepared
`after extensive review, discussion, and negotiations. In consideration of such negotiations, it is agreed
`that an(cid:92) prior drafts of this Agreement shall not be considered in the interpretation of this Agreement
`or an(cid:92) provisions contained herein, and, without limiting the generalit(cid:92) of the foregoing, it is agreed
`that no inferences, conclusions, or interpretations are to be made based upon the fact that: (i) a particular
`provision contained in an earlier draft is not included in the executed version of this Agreement; (ii) a
`particular provision that is included in the executed version of this Agreement was not contained in a
`
`4814-7463-9048.2
`Page 2 of 4
`
`GLOBAL SETTLEMENT AGREEMENT
`
`
`
`
`

`

`prior draft; or (iii) a particular provision has been modified from a version contained in a prior draft.
`The language contained herein shall in all events be construed simpl(cid:92) in accordance with its fair
`meaning, and, for purposes of applicable law regarding construction of contracts, this Agreement, and
`each of the provisions contained herein, shall not be deemed to have been drafted b(cid:92) or for an(cid:92)
`particular Part(cid:92), and shall not be construed for or against an(cid:92) particular Part(cid:92) on the basis of which
`Part(cid:92) drafted this Agreement, or an(cid:92) particular provision herein, towards which end, all Parties hereb(cid:92)
`expressl(cid:92) waive an(cid:92) benefit that might arise from California Civil Code (cid:134)1654, or an(cid:92) similar rule or
`canon of construction.
`
`7.
`This Agreement shall be construed and controlled in accordance with the local laws of the State
`of California without regard to an(cid:92) conflict of law provisions. The Parties hereb(cid:92) consent to the
`continuing jurisdiction of the United States District Court for the Central District of California to
`enforce compliance with this Agreement.
`
`8.
`This Agreement ma(cid:92) be executed in two (2) or more counterparts, each of which shall be
`deemed to constitute an original but all of which together shall constitute one and the same instrument.
`An(cid:92) signature evidenced b(cid:92) fax or scanned and emailed shall have the same force and effect as an
`original ink signature, provided that it is actuall(cid:92) the signature of the person it purports to be.
`
`9.
`The terms and the provisions of this Agreement shall be binding upon and inure to the benefit
`of the Parties and her, his, or its then current emplo(cid:92)ees, emplo(cid:92)ers, independent contractors, officers,
`directors, members, principals, assigns, agents, representatives, corporations, related companies,
`affiliates, partners, associates, shareholders, spouses, successors, heirs, executors, administrators,
`devisees, transferees, and assigns. Each of the signatories to this Agreement, b(cid:92) her, his, or its signature
`below, represents and warrants that s/he or it is competent and dul(cid:92) authori(cid:93)ed to enter into, execute,
`deliver, and perform this Agreement on behalf of the Part(cid:92) on whose behalf s/he or it purports to sign;
`that s/he or it has the power and authorit(cid:92) to bind the Part(cid:92) for whom he has signed; that this Agreement
`constitutes a legal, valid, and binding obligation; and that this Agreement is enforceable in accordance
`with its own terms. Each Part(cid:92) represents and warrants that s/he or it is the sole owner of the claims
`that are the subject of this Agreement and that none of those claims has been exclusivel(cid:92) licensed,
`assigned, or transferred to an(cid:92) other person or entit(cid:92) that is not a Part(cid:92) hereto.
`
`10.
`If an(cid:92) provision of this Agreement is held b(cid:92) a court or other tribunal of competent jurisdiction,
`in whole or in part, to be invalid, illegal, or unenforceable in an(cid:92) respect, for an(cid:92) reason, the validit(cid:92),
`legalit(cid:92) and enforceabilit(cid:92) of the remainder of that provision, an(cid:92) other remaining provisions, and of
`the entire Agreement shall not in an(cid:92) wa(cid:92) be affected or impaired thereb(cid:92), and shall be interpreted, to
`the extent possible, to achieve the purposes as originall(cid:92) expressed with the provision found to be
`invalid, illegal or unenforceable. Each provision hereof is intended to be severable, and the validit(cid:92),
`legalit(cid:92), or enforceabilit(cid:92) of an(cid:92) provision of this Agreement shall not affect the validit(cid:92), legalit(cid:92), or
`enforceabilit(cid:92) of the remainder of the Agreement.
`
`11.
`No amendment, modification, change, or variance from this Agreement shall be binding on an(cid:92)
`of the Parties unless mutuall(cid:92) agreed to b(cid:92) each of the Parties that is affected thereb(cid:92), and unless the
`
`4814-7463-9048.2
`Page 3 of 4
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`GLOBAL SETTLEMENT AGREEMENT
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`
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`

`

`amendment, modification, change, or variance is in writing and signed b(cid:92) the authori(cid:93)ed person,
`officer, or agent of each of the Parties that is affected thereb(cid:92).
`
`IN WITNESS THEREOF, the Parties have caused their names to be subscribed and this Global
`Settlement Agreement was executed and is effective as of the Effective Date.
`
`A(cid:71)(cid:71)a(cid:71)a(cid:92) LLC
`
`
`
`Na(cid:80)(cid:72):
`
`
`
`T(cid:76)(cid:87)(cid:79)(cid:72):
`Da(cid:87)(cid:72)(cid:71): A(cid:88)(cid:74)(cid:88)(cid:86)(cid:87) 25, 2020
`
`
`
`
`
`
`
`
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`H(cid:92)(cid:83)(cid:72)(cid:85) Ic(cid:72), I(cid:81)c.
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`Na(cid:80)(cid:72):
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`T(cid:76)(cid:87)(cid:79)(cid:72):
`Da(cid:87)(cid:72)(cid:71): A(cid:88)(cid:74)(cid:88)(cid:86)(cid:87) 25, 2020
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`4814-7463-9048.2
`Page 4 of 4
`
`GLOBAL SETTLEMENT AGREEMENT
`
`
`
`
`

`

`amendment, modification, change, or variance is in writing and signed by the authorized person,
`officer, or agent of each of the Parties that is affected thereby.
`
`IN WITNESS THEREOF, the Parties have caused their names to be subscribed and this Global
`
`Settlement Agreement was executed and is effective as of the Efi‘ective Date.
`
`Addaday LLC
`
`Hyper Ice, Inc.
`
`Name:
`
`Name: J/Ml/Ufiflffla
`
`Title:
`Dated: August 31, 2020
`
`Title:
`0150
`
`Dated: August 31, 2020
`
`4814-7463-90483
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`Page 4 of4
`
`GLOBAL SETTLEMENT AGREEMENT
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`

`

`EXHIBIT B
`
`

`

`SETTLEMENT AGREEMENT
`
`This SETTLEMENT AGREEMENT (the “Agreement”), made effective as of October 29, 2019 (the
`“Effective Date”),
`is entered into by and between Addaday LLC, a California limited liability
`company with its principal place of business located at 2500 Broadway, F125, Santa Monica, CA
`90404 (“Addaday”), on the one hand, and Hyper Ice, Inc., a California corporation, with its principal
`place of business located at 15440 Laguna Canyon Road, Suite 230, Irvine, CA 92618 (“Hyper Ice”).
`on the other hand. Addaday and Hyper Ice may individually be referred to as a “Party” or
`collectively as the “Parties.”
`
`WHEREAS, on September 13, 2019, Hyper Ice sent to Addaday a Cease & Desist Letter alleging that
`Addaday’s BioZoom massage gun (“Biozoom”) infringes Hyper Ice’s Design Patent No. D855,822
`(“the ‘822 Patent”) and Hyper
`Ice’s alleged Trade Dress in Hyper
`Ice’s Hypervolt product
`(“Hypervolt Trade Dress”);
`
`WHEREAS, on September 16, 2019, Addaday filed a Complaint for Declaratory Judgment (the
`“Complaint”)
`in the United States District Court for the Central District of California captioned
`Addaday LLC v. Hyper Ice, Inc., Case No. 8:19-cv-01760 JLS (XKES) (the “Litigation”), requesting a
`Declaratory Judgment that the BioZoom product does not infringe any Intellectual Property owned by
`Hyper Ice;
`
`it
`WHEREAS, on September 17, 2019, Hyper Ice’s Attorney informed Addaday’s Attomey that
`would agree to not pursue any claims that Addaday’s BioZoom massage gun shown in the Complaint
`infringes Hyper Ice’s intellectual property that is detailed in the Complaint, and Hyper Ice’s Attorney
`confirmed that settlement offer in writing on September 19, 2019;
`
`WHEREAS, on September 20, 2019, Addaday’s Attorney confirmed in writing that Addaday has
`agreed to Settle the Litigation pursuant to Hyper Ice’s promise that it would not pursue claims that
`Addaday’s BioZoom massage gun shown in the Complaint infringes Hyper Ice’s intellectual property
`that is detailed in the Complaint;
`
`WHEREAS, the Parties now desire to formalize the Settlement of this matter;
`
`in consideration of the covenants, agreements, obligations, and promises set
`NOW, THEREFORE,
`forth hereinbelow,
`the Parties agree as follows:
`
`1. Dismissal. Within ten (10) calendar days of the Effective Date of this Agreement, Addaday will
`Dismiss the Litigation Without Prejudice, with each Party to bear its own costs, expenses. and
`attorneys’ fees.
`
`2. Covenant Not To Sue. Hyper Ice covenants not to sue Addaday and/or anyone up or dovm the
`chain of supply, now or in the future, for alleged infringement of Hyper Ice's intellectual property
`that is detailed in the Complaint by BioZoom’s massage gun shown in the Complaint. including any
`manufacture, use, offer for sale, sale, or importation thereof.
`
`Jurisdiction In Event Of Breach. In the event of a breach of this Settlement Agreement by either
`3.
`Party, the Parties agree that the Court shall retain jurisdiction to enforce this Settlement Agreement.
`
`48384661544112
`
`SEITLEMENT AGREEMENT
`
`Page 1 of 3
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`

`

`4. The Parties agree that this Agreement is intended to be a full and final compromise, release, and
`settlement of all disputes of any existing claims against one another related to the Litigation. The
`Parties hereby waive any and all statutes or codes that may apply that were designed to “protect”
`people or entities from waiving unknown claims.
`Specifically,
`the Parties expressly acknowledge
`that each has been advised of the provisions of Section 1542 of the California Civil Code, and, to the
`extent
`that Section will apply to this Settlement Agreement, each Party knowingly and expressly
`waives any rights and benefits available under the provisions of said §1542, which states:
`
`“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT
`
`THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
`
`SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
`
`EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR
`HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
`SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
`
`5. Each Party further represents that s/he or it has read and understands this Agreement, that s/he or
`it has
`actually consulted with experienced independent
`legal
`counsel
`regarding the
`rights,
`responsibilities, and obligations set forth and discussed herein, and that s/he or it has signed this
`Agreement without duress, coercion, or undue influence. Each Party hereby authorizes and directs its
`attorneys to execute any papers, and to take such other actions, that may be necessary or appropriate
`to carry out the terms of this Agreement.
`In making this Agreement, each Party has not relied upon
`any statement or representation pertaining to this matter made by any other Party, or by any other
`person or persons, whether representing a Party or not, other than those representations expressly
`stated herein, but,
`rather, each has relied solely upon his, her, or
`its own attorneys,
`insurers,
`representatives, agents, and employees. The Parties further acknowledge and agree that
`this
`Agreement has been diligently and completely negotiated, and is the final product of drafts and
`revisions prepared after extensive review, discussion, and negotiations.
`In consideration of such
`negotiations,
`it
`is agreed that any prior drafts of this Agreement shall not be considered in the
`interpretation of this Agreement or any provisions contained herein, and, without
`limiting the
`generality of the foregoing,
`it
`is agreed that no inferences, conclusions, or interpretations are to be
`made based upon the fact that: (i) a particular provision contained in an earlier draft is not in