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11.1.3 the Exploitation by or on behalf of AbbVie of Licensed Products in the Territory after the applicable License Option Effective Date and during the Term; or |
11.1.4 the infringement of any Patents, or infringement or misappropriation of any other intellectual property or other proprietary rights, of any Third Party arising from or relating to AbbVie's or any of its Affiliates' performance of the Research Plan Activities allocated to AbbVie or the Exploitation by or on behal... |
except in the case of Sections 11.1.1 through 11.1.4, for those Losses for which Plexium, in whole or in part, has an obligation to indemnify AbbVie pursuant to Section 11.2 hereof, as to which Losses each Party shall indemnify the other to the extent of their respective liability for such Losses. |
11.2 Indemnification of AbbVie. Plexium shall indemnify AbbVie, its Affiliates and its and their respective directors, officers, employees, and agents (the "AbbVie Indemnitees"), and defend and save each of them harmless, from and against any and all Losses in connection with any and all Third Party Claims incurred by ... |
11.2.1 the breach by Plexium of this Agreement, including any of Plexium's representations, warranties or covenants contained herein; |
11.2.2 the negligence, reckless conduct or willful misconduct on the part of Plexium or its Affiliates or it or their respective directors, officers, employees, and agents in performing its or their obligations under this Agreement; |
11.2.3 the infringement of any Patents, or infringement or misappropriation of any other intellectual property or other proprietary rights, of any Third Party arising from or relating to Plexium's or any of its Affiliates' performance of the Research Plan Activities allocated to Plexium or the practice of the Plexium P... |
11.2.4 the Exploitation of any Rejected Compound or product containing such Rejected Compound or any Replaced Research Program by or on behalf of Plexium during or after the Term; |
except, in the case of Section 11.2.1 through 11.2.4 above for those Losses for which AbbVie, in whole or in part, has an obligation to indemnify Plexium pursuant to Section 11.1 hereof, as to which Losses each Party shall indemnify the other to the extent of their respective liability for the Losses. |
11.3 Certain Losses. Notwithstanding the foregoing, any Losses, other than those Losses for which indemnification is provided in Section 11.1 or Section 11.2 or under any separate written agreement, in connection with any Third Party Claim brought against either Party or its Affiliates or other of such Party's indemnit... |
11.4 Notice of Claim. All indemnification claims in respect of a Party, its Affiliates, or their respective directors, officers, employees and agents shall be made solely by such Party to this Agreement (the "Indemnified Party"). The Indemnified Party shall give the indemnifying Party prompt written notice (an "Indemni... |
11.5 Control of Defense. |
11.5.1 In General. Subject to the provisions of Sections 8.4, 8.5 and 8.7, at its option, the indemnifying Party may assume the defense of any Third Party Claim by giving written notice to the Indemnified Party within thirty (30) days after the indemnifying Party's receipt of an Indemnification Claim Notice. The assump... |
11.5.2 Right to Participate in Defense. Without limiting Section 11.5.1, any Indemnified Party shall be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, that such employment shall be at the Indemnified Party's own expense ... |
11.5.3 Settlement. With respect to any Losses relating solely to the payment of money damages in connection with a Third Party Claim and that shall not result in the Indemnified Party's becoming subject to injunctive or other relief or otherwise require an admission of any liability, and as to which the indemnifying Pa... |
11.5.4 Cooperation. Regardless of whether the indemnifying Party chooses to defend or prosecute any Third Party Claim, the Indemnified Party shall, and shall cause each indemnitee to, cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, provide such witnesses and at... |
11.5.5 Expenses. Unless otherwise provided in this ARTICLE 11, the reasonable and verifiable costs and expenses, including fees and disbursements of counsel, incurred by the Indemnified Party in connection with any Third Party Claim shall be reimbursed on a Calendar Quarter basis in arrears by the indemnifying Party, w... |
11.6 Special, Indirect, and Other Losses. EXCEPT (A) FOR WILLFUL MISCONDUCT, (B) FOR A PARTY'S BREACH OF ITS OBLIGATIONS UNDER SECTION 6.9.1 OR ARTICLE 9, (C) AS PROVIDED UNDER SECTION 13.11, AND (D) TO THE EXTENT ANY SUCH DAMAGES ARE REQUIRED TO BE PAID TO A THIRD PARTY AS PART OF A CLAIM FOR WHICH A PARTY PROVIDES IN... |
11.7 Insurance. Each Party shall obtain and carry in full force and effect the minimum insurance requirements set forth herein from an insurance company properly licensed to provide the required insurance. Such insurance (a) shall be primary insurance with respect to such Party's participation under this Agreement, (b)... |
11.7.1 Required Coverages. The types of insurance, and minimum limits shall be: |
(a) Worker's Compensation with statutory limits in compliance with the Worker's Compensation laws of the state or states in which the Party has employees in the United States (excluding Puerto Rico). |
(b) Employer's Liability coverage with a minimum limit of Five Hundred Thousand Dollars ($500,000) per occurrence; provided, that a Party has employees in the United States (excluding Puerto Rico). |
(c) General Liability Insurance with a minimum limit of Five Million Dollars ($5,000,000) per occurrence and Ten Million Dollars ($10,000,000) in the aggregate. |
Each Party shall at all times maintain in force any insurance policy that is required by Applicable Law which may govern or have jurisdiction over any provision of this Agreement and at all times remain fully compliant with any such Applicable Law. |
11.7.2 Certificates of Insurance. Upon request by the other Party, each Party shall provide Certificates of Insurance evidencing compliance with the requirements of Section 11.7.1. The insurance policies shall be under an occurrence form, but if only a claims-made form is available to such Party, then such Party shall ... |
ARTICLE 12 TERM AND TERMINATION |
12.1 Term. |
12.1.1 Term. This Agreement shall commence on the Effective Date and, unless earlier terminated in accordance herewith, shall continue in force and effect until, on a Research Program-by-Research Program and country or other jurisdiction-by-country or other jurisdiction basis, the date of expiration of the last Royalty... |
12.1.2 Effect of Expiration of the Term. Following the expiration of the Term, and on a Research Program-by-Research Program and country or other jurisdiction-by-country or other jurisdiction basis, the grants set forth in Section 6.2 shall become unrestricted, perpetual, fully-paid, royalty-free and irrevocable. |
12.2 Termination for Material Breach. |
12.2.1 Material Breach. If either Party (the "Non-Breaching Party") believes that the other Party (the "Breaching Party") has materially breached one (1) or more of its material obligations under this Agreement, then the Non-Breaching Party may deliver notice of such material breach to the Breaching Party (a "Default N... |
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12.2.2 Material Breach Related to Specific Countries. Notwithstanding Section 12.2.1, if the material breach and failure to cure contemplated by Section 12.2.1 is with respect to AbbVie's diligence obligations under Section 5.2, as applicable, with respect to fewer than all of the countries in the Territory, Plexium sh... |
12.2.3 Invocation of Termination for Material Breach. Notwithstanding the foregoing, the Parties agree that termination pursuant to this Section 12.2, other than with respect to a material breach of any undisputed payment obligation set forth in this Agreement, is a remedy to be invoked only if the breach cannot be ade... |
12.3 Additional Termination Rights. |
12.3.1 For Cause. |
AbbVie may terminate this Agreement in its entirety effective immediately upon written notice to Plexium pursuant to Sections 10.5 and 10.6. |
AbbVie may terminate this Agreement, on a Licensed Product-by-Licensed Product basis, if AbbVie reasonably believes that it is not advisable for AbbVie to continue to Exploit such Licensed Product as a result of a serious safety issue regarding the use of such Licensed Product. |
12.3.2 For Convenience. AbbVie may terminate this Agreement in its entirety, or on a Program-by-Program, Compound or Product-by-Compound or Product and country or other jurisdiction-by-country or other jurisdiction basis, for any or no reason, upon prior written notice to Plexium; provided, that, if such termination is... |
12.3.3 For Termination of the License Option. |
This Agreement shall terminate in its entirety, automatically and without further notice by either Party, if the last-to-expire License Option terminates pursuant to Section 4.4.4 in circumstances in which AbbVie has not delivered a License Option Exercise Notice for any License Option pursuant to Section 4.2 or 4.4.1. |
Either Party may terminate this Agreement in its entirety or on a Program-by-Program or Licensed Product-by-Licensed Product basis effective immediately upon written notice to Plexium in the event that (a) either Party receives a second request for additional information under the HSR Act (a "Second Request") or (b) th... |
12.4 Termination for Insolvency. If either Party (a) files for protection under bankruptcy or insolvency laws, (b) makes an assignment for the benefit of creditors, (c) appoints or suffers appointment of a receiver or trustee over substantially all of its property that is not discharged within ninety (90) days after su... |
12.5 Rights in Bankruptcy. |
12.5.1 Applicability of 11 U.S.C. § 365(n). All rights and licenses (collectively, the "Intellectual Property") granted under or pursuant to this Agreement, including all rights and licenses to use improvements or enhancements developed during the Term, are intended to be, and shall otherwise be deemed to be, for purpo... |
12.5.2 Rights of non-Debtor Party in Bankruptcy. If a bankruptcy proceeding is commenced by or against either Party under the Bankruptcy Code or any analogous provisions in any other country or jurisdiction, the non-debtor Party shall be entitled to a complete duplicate of (or complete access to, as appropriate) any In... |
12.6 Termination in Entirety. |
12.6.1 In the event of a termination of this Agreement in its entirety by either Party: |
(a) all licenses and other rights granted by Plexium under this Agreement, including, without limitation, pursuant to Sections 6.1 and 6.2, shall immediately terminate; |
(b) all licenses and other rights granted by AbbVie under this Agreement, including, without limitation, pursuant to Section 6.3, shall immediately terminate; and |
(c) Plexium shall terminate the Research Program in an orderly manner as soon as practicable after the effective date of such termination, but in no event later than sixty (60) days after such date. |
12.6.2 If AbbVie has the right to terminate this Agreement in its entirety pursuant to Section 12.2.1 (including, for clarity, subject to the cure periods and procedures set forth therein and subject to Section 12.2.3), 12.3.1(a), or 12.4 (each, an "Alternative Remedy Trigger"), AbbVie may, in lieu of termination, elec... |
(a) all licenses and rights granted by AbbVie hereunder shall immediately terminate; |
(b) all licenses and rights granted to AbbVie hereunder with respect to the Licensed Products, solely to the extent AbbVie has exercised its License Option with respect to such Licensed Programs as of the occurrence of the circumstances giving rise to the Alternative Remedy Trigger, shall become irrevocable, unrestrict... |
(c) AbbVie's obligations pursuant to Sections 5.2 shall terminate; and |
(d) terminate Plexium's Cost-Sharing Option (to the extent not exercised with respect to a Licensed Product). |
The remedies set forth in this Section 12.6.2 shall be without limitation to any other rights or remedies that may be available to AbbVie under this Agreement or at law. |
12.7 Termination of Terminated Territory. In the event of a termination of this Agreement with respect to a country or other jurisdiction by AbbVie pursuant to Section 12.3.2 or with respect to a Terminated Territory by Plexium pursuant to Section 12.2.2 (but not in the case of any termination of this Agreement in its ... |
12.7.1 automatically be deemed to be amended to exclude the right to market, promote, detail, distribute, import, sell, offer for sale, submit any Drug Approval Application for, or seek any Regulatory Approval for, or otherwise Exploit, such terminated Licensed Compound or Licensed Product in such Terminated Territory,... |
12.7.2 otherwise survive and continue in effect in the Territory (excluding the Terminated Territory) solely for the Exploitation of the Licensed Compound or Licensed Products in the Territory (excluding the Terminated Territory). |
12.8 Remedies. Except as otherwise expressly provided herein, termination of this Agreement (either in its entirety or with respect to one (1) or more country(ies) or other jurisdiction(s)) in accordance with the provisions hereof shall not limit remedies that may otherwise be available in law or equity. |
12.9 Accrued Rights; Surviving Obligations. |
12.9.1 Termination or expiration of this Agreement (either in its entirety or with respect to one (1) or more Programs, Compounds, Products, or country(ies) or other jurisdiction(s)) for any reason shall be without prejudice to any rights that shall have accrued to the benefit of a Party prior to such termination or ex... |
12.9.2 Notwithstanding the termination of AbbVie's licenses and other rights under this Agreement or with respect to a particular country or other jurisdiction, Licensed Program, Licensed Compound or Licensed Product, as the case may be, solely in the event that AbbVie terminates this Agreement for any reason other tha... |
ARTICLE 13 MISCELLANEOUS |
13.1 Force Majeure. Except with respect to the obligations set forth in ARTICLE 7, neither Party shall be held liable or responsible to the other Party or be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay i... |
13.2 Change in Control. |
13.2.1 Plexium (or its successor) shall provide AbbVie with written notice of any Change in Control of Plexium within two (2) Business Days following the closing date of such transaction. |
13.2.2 In the event of a Change in Control of Plexium involving an AbbVie Competitor, then (a) Plexium shall comply with the terms of Section 6.9.2, if applicable, and (b) AbbVie shall have the right, in its sole and absolute discretion, by written notice delivered to Plexium (or its successor) at any time during the o... |
13.2.3 In the event of such a Change in Control involving an AbbVie Competitor, to the extent Plexium is not already operating at this standard, Plexium will agree to implement an information security program based on one or more of the following industry standard information security frameworks to encrypt and restrict... |
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13.2.4 Following such Change in Control, to the extent that Plexium has not completed an assessment of all of the applicable compounds against the Preliminary Hit Criteria with respect to a Program, Plexium covenants that there shall be no material change in the level or nature of efforts or resources expended by Plexi... |
13.3 Export Control. This Agreement is made subject to any restrictions concerning the export of products or technical information from the United States or other countries that may be imposed on the Parties from time to time. Each Party agrees that it will not export, directly or indirectly, any technical information ... |
13.4 Assignment. Without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned, or delayed, neither Party shall sell, transfer, assign, delegate, pledge, or otherwise dispose of, whether voluntarily, involuntarily, by operation of law or otherwise, this Agreement or any... |
13.5 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, and if the rights or obligations of either Party under this Agreement will not be materially and adversely affected thereby, (a) such provision shall be fully severable, (b) this Agree... |
13.6 Governing Law, Jurisdiction and Service. |
13.6.1 Governing Law. This Agreement and the performance, enforcement, breach or termination hereof shall be interpreted, governed by and construed in accordance with the laws of the State of Delaware, United States, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or i... |
13.6.2 Service. Each Party further agrees that service of any process, summons, notice or document by registered mail to its address set forth in Section 13.8.2 shall be effective service of process for any action, suit, or proceeding brought against it under this Agreement in any such court. |
13.7 Dispute Resolution. Other than for disputes resolved by the procedures set forth in Section 2.2.3, 7.15 or 13.11, if a dispute arises between the Parties in connection with or relating to this Agreement or any document or instrument delivered in connection herewith (a "Dispute"), it shall be resolved pursuant to t... |
13.7.1 General. Any Dispute shall first be referred to the Senior Officers of the Parties, who shall confer in good faith on the resolution of the issue. Any final decision mutually agreed to by the Senior Officers shall be conclusive and binding on the Parties. If the Senior Officers are not able to agree on the resol... |
13.7.2 Intellectual Property Disputes. If a Dispute arises (including arbitrability) with respect to the validity, patentability, enforceability, inventorship or ownership of any Patent, Trademark or other intellectual property rights, and such Dispute cannot be resolved in accordance with Section 13.7.1, unless otherw... |
13.7.3 ADR. Any ADR proceeding under this Agreement shall take place pursuant to the procedures set forth in Schedule 13.7.3. |
13.7.4 Adverse Ruling. Any determination pursuant to this Section 13.7 that a Party is in material breach of its material obligations hereunder shall specify a (nonexclusive) set of actions to be taken to cure such material breach, if feasible. |
13.7.5 Interim Relief and Tolling. Notwithstanding anything herein to the contrary, nothing in this Section 13.7 shall preclude either Party from seeking interim or provisional relief, from any court of competent jurisdiction including a temporary restraining order, preliminary injunction or other interim equitable rel... |
13.8 Notices. |
13.8.1 Notice Requirements. Any notice, request, demand, waiver, consent, approval, or other communication permitted or required under this Agreement shall be in writing, shall refer specifically to this Agreement and shall be deemed given only if (a) delivered by hand, (b) sent by facsimile transmission (with transmis... |
13.8.2 Address for Notice. If to AbbVie, to: AbbVie Global Enterprises Ltd. 4th Floor, Washington House 16 Church Street Hamilton HM11, Bermuda Facsimile: +1 847 935 3294 with a copy (which shall not constitute notice) to: AbbVie Inc. 1 North Waukegan Road North Chicago, IL 60064 Attention: Vice Chairman, External Affa... |
13.9 Entire Agreement; Amendments. This Agreement, together with the Research Plans and Schedules attached hereto, sets forth and constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and all prior agreements, understandings, promises, and representations, whet... |
13.10 English Language. This Agreement shall be written and executed in, and all other communications under or in connection with this Agreement shall be in, the English language. Any translation into any other language shall not be an official version thereof, and in the event of any conflict in interpretation between... |
13.11 Equitable Relief. Each Party acknowledges and agrees that Plexium's performance of its obligations under ARTICLE 3 (to the extent related to Research Plan Activities that comprise Plexium's assessment of all of the applicable compounds against the Preliminary Hit Criteria) and the restrictions set forth in Sectio... |
13.12 Waiver and Non-Exclusion of Remedies. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. Th... |
13.13 No Benefit to Third Parties. Except as provided in ARTICLE 11, covenants and agreements set forth in this Agreement are for the sole benefit of the Parties hereto and their successors and permitted assigns, and they shall not be construed as conferring any rights on any other Persons. |
13.14 Further Assurance. Each Party shall duly execute and deliver, or cause to be duly executed and delivered, such further instruments and do and cause to be done such further acts and things, including the filing of such assignments, agreements, documents, and instruments, as may be necessary or as the other Party m... |
13.15 Relationship of the Parties. It is expressly agreed that Plexium, on the one hand, and AbbVie, on the other hand, shall be independent contractors and that the relationship between the Parties shall not constitute a partnership, joint venture, or agency, including for all Tax purposes. Neither Plexium, on the one... |
13.16 Performance by Affiliates. Each Party may use one (1) or more of its Affiliates to perform its obligations and duties hereunder and such Affiliates are expressly granted certain rights herein; provided that each such Affiliate shall be bound by the corresponding obligations of the applicable Party and, subject to... |
13.17 Counterparts; Facsimile Execution. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one (1) and the same instrument. This Agreement may be executed by facsimile or electronically transmitted signatures and such si... |
13.18 References. Unless otherwise specified, (a) references in this Agreement to any Article, Section or Schedule shall mean references to such Article, Section or Schedule of this Agreement, (b) references in any Section to any clause are references to such clause of such Section, and (c) references to any agreement,... |
13.19 Schedules. In the event of any inconsistencies between this Agreement and any schedules or other attachments hereto, the terms of this Agreement shall control. |
13.20 Construction. Except where the context otherwise requires, wherever used, the singular shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders and the word "or" is used in the inclusive sense (and/or). Whenever this Agreement refers to a number of days, unless o... |
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