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Aggregate Annual Net Sales of An Earn-Out Product |
For that portion of aggregate Annual Net Sales of an Earn-Out Product less than Five Hundred Million Dollars (US$500,000,000) |
For that portion of aggregate Annual Net Sales of an Earn-Out Product greater than or equal to Five Hundred Million Dollars (US$500,000,000) and less than One Billion Dollars (US$1,000,000,000) |
For that portion of aggregate Annual Net Sales of an Earn-Out Product greater than or equal to One Billion Dollars (US$1,000,000,000) and less than One Billion Five Hundred Million Dollars (US$1,500,000,000) |
For that portion of aggregate Annual Net Sales of an Earn-Out Product greater than or equal to One Billion Five Hundred Million Dollars (US$1,500,000,000) and less than Two Billion Dollars (US$2,000,000,000) |
For that portion of aggregate Annual Net Sales of an Earn-Out Product greater than or equal to Two Billion Dollars (US$2,000,000,000) |
7.9 Earn-Out Term. On a country or other jurisdiction-by-country or other jurisdiction and Earn-Out Product-by-Earn-Out Product basis, earn-out payments on Net Sales in accordance with Section 7.8.1 (Earn-Out Rates) of each Earn-Out Product in a country or other jurisdiction in the Territory would commence upon the Fir... |
7.10 Third-Party Licenses. |
7.10.1 Notwithstanding Sections 7.6 (Commercial Milestone Payments), 7.7 (Sales-Based Milestone Payments), and 7.8.1 (Earn-Outs), if AbbVie or any of its Affiliates determines in good faith that, in order to avoid infringement or misappropriation of any Third Party Right by the composition of matter of an Earn-Out Anti... |
7.10.2 Notwithstanding anything to the contrary in this Agreement, if AbCellera or any of its Affiliates obtains a license from a Third Party in order for AbCellera, its Affiliates and subcontractors to Exploit the AbCellera Background IP or AbCellera Improvements in a country or other jurisdiction in the Territory, Ab... |
7.11 Estimated Sales Levels. AbCellera acknowledges and agrees that the sales levels set forth in Section 7.8.1 (Earn-Out) shall not be construed as representing an estimate or projection of anticipated sales of the Earn-Out Products, or implying any level of diligence, in the Territory and that the sales levels set fo... |
7.12 Reports; Payment of Earn-Out. During the Term, following the First Commercial Sale of any Earn-Out Product in any country or other jurisdiction in the Territory, AbbVie shall furnish to AbCellera a written report within ninety (90) days after the end of each Calendar Quarter showing, on an Earn-Out Product-by-Earn... |
7.13 Reports; Quarterly Net Sales Estimate. During the Term, following the First Commercial Sale of any Earn-Out Product in any country or other jurisdiction in the Territory, AbbVie shall furnish to AbCellera a written report within seven (7) days after the end of each Calendar Quarter showing, on an Earn-Out Product-... |
7.14 Financial Records. AbbVie shall, and shall cause its Affiliates, and its and their Licensees and/or Sublicensees (other than Dispute Settlement Licensees) to, keep full, clear and accurate records pertaining to Net Sales for a minimum period of three (3) years after the relevant payment is owed pursuant to this Ag... |
7.15 Audit; Audit Dispute. |
7.15.1 Audit. At the request of AbCellera, AbbVie shall, and shall cause its Affiliates to, and shall use reasonable efforts to require its Licensees and/or Sublicensees to, permit an independent public accounting firm of nationally recognized standing designated by AbCellera and reasonably acceptable to AbbVie at reas... |
7.15.2 Audit Dispute. In the event of a dispute with respect to any audit under Section 7.15.1 (Audit), AbCellera and AbbVie shall work in good faith to resolve the disagreement. If the Parties are unable to reach a mutually acceptable resolution of any such dispute within thirty (30) days, the dispute shall be submitt... |
7.16 Methods of Payments; Offsets. All payments to either Party under this Agreement shall be made by deposit of Dollars in the requisite amount to such bank account as the receiving Party may from time to time designate by notice to the paying Party. For the purpose of calculating any sums due under, or otherwise reim... |
7.17 Taxes. |
7.17.1 Income Taxes. Each Party shall be solely responsible for the payment of all taxes imposed on its share of income arising directly or indirectly from the activities of the Parties under this Agreement. Each Party shall commit reasonable commercial efforts to cooperate in any way reasonably requested by the other ... |
7.17.2 Withholding Taxes. If any sum due to be paid to either Party hereunder is subject to any withholding or similar tax, the Parties shall use their commercially reasonable efforts to do all such acts and things and to sign all such documents as will enable them to take advantage of any applicable double taxation ag... |
7.17.3 Indirect Taxes. All payments under this Agreement are exclusive of value added taxes, sales taxes, consumption taxes and other similar taxes (the "Indirect Taxes"). If any Indirect Taxes are chargeable in respect of any payment under this Agreement, the paying Party shall pay such Indirect Taxes at the applicabl... |
7.17.4 Adjustment. All payments made under Article 7 and Article 12 shall be treated by the Parties as adjustments to the purchase price of the applicable Acquired Assets for all tax purposes. |
7.18 Late Payments. Any undisputed amount owed by AbbVie to AbCellera under this Agreement that is not paid on or before the date such payment is due shall bear interest at an annual rate (but with interest accruing on a daily basis) of the lesser of (a) one hundred (100) basis points above the Secured Overnight Financ... |
7.19 Financial Obligations under In-License Agreements. As between the Parties, AbCellera shall be solely responsible for In-License Agreement financial obligations, including royalties, due to any Third Party as consideration for obtaining a license or other rights under any Patent Right or Know-How that is owned by a... |
ARTICLE 8 EXCLUSIVITY; CHANGE OF CONTROL |
8.1 Exclusivity. |
8.1.1 AbCellera Exclusivity Obligation. |
(a) Research Target for Collaboration Program. Subject to Section 8.1.2 (Exception to AbCellera Exclusivity Obligation) and Section 13.4.7 (Effect of Termination on Exclusivity), during the period beginning on the Effective Date and until the third (3rd) anniversary of the earlier of (i) completion of the Collaboration... |
(b) Research Targets for Option Programs. Subject to Section 8.1.2 (Exception to AbCellera Exclusivity Obligation) and Section 13.4.7 (Effect of Termination on Exclusivity), on a Research Target-by-Research Target basis, during the period beginning on the date on which AbCellera initiates activities under a Research Pl... |
8.1.2 Exception to AbCellera Exclusivity Obligation. Nothing in Section 8.1.1 (AbCellera Exclusivity Obligation) shall restrict AbCellera from pursuing any Research Target nominated pursuant to rights granted to any Person under an AbCellera Partner Agreement. |
ARTICLE 9 INTELLECTUAL PROPERTY RIGHTS |
9.1 Ownership of Intellectual Property; Disclosure. |
9.1.1 AbCellera Platform Technology. AbCellera and AbbVie agree that AbCellera is either the sole and exclusive owner of, or has the necessary license under, all right, title, and interest, including all Intellectual Property Rights, in and to the AbCellera Background IP and AbCellera Improvements. AbbVie acknowledges ... |
9.1.2 Disclosure of Inventions. During the Research Term, in accordance with Section 2.5.3 (Information and Reports), AbCellera shall, and shall cause its Affiliates and (sub)licensees to, disclose in writing to AbbVie the conception, reduction to practice, generation, discovery, development or making of any Research K... |
9.1.3 Control of Intellectual Property. AbCellera and its Affiliates shall not enter into or amend any agreement with a Third Party, or include in any such agreement or amendment any restrictive provisions, with an intent to limit its Control of, or to not Control, any Know-How (including Research Know-How), Patent Rig... |
9.1.4 Limited Right to Use Research Know-How. Notwithstanding anything to the contrary in this Agreement, the Parties agree that AbCellera may utilize anonymized and blinded Research Know-How internally for improvement of the AbCellera Platform Technology. Such activities may include optimizing screening and image proc... |
9.2 Restriction on AbCellera Prosecution of Research Patents. (a) With respect to the Collaboration Program, during the Term and thereafter, and (b) with respect to an Option Program, during the Term and, only to the extent that AbbVie exercises an applicable Acquisition Option, thereafter, in each case ((a) and (b)), ... |
9.3 Cooperation. The Parties agree to cooperate fully in the preparation, filing, prosecution, defense, maintenance, enforcement and defense of the Research Patents at its own expense. Cooperation shall include: |
(a) executing all papers and instruments, or requiring its employees or contractors to execute such papers and instruments, so as to (i) effectuate the ownership of intellectual property set forth in Section 4.1 (Assignment and License Grants to AbbVie) and this Section 9.3 (Cooperation); (ii) enable the other Party to... |
(b) consistent with this Agreement, assisting in any assignment or license registration processes with applicable Governmental Authorities that may be available in the Territory for the protection of a Party's interests in this Agreement; |
(c) promptly informing the other Party of any matters coming to such Party's attention that may materially affect the preparation, filing, prosecution, maintenance, enforcement or defense of any such Research Patents in the Territory; and |
(d) in connection with any of the foregoing, making its employees available at reasonable business hours. |
9.4 Infringement Claims by Third Parties. If the Manufacture, sale, or use of an Earn-Out Antibody, Earn-Out Product or Terminated Antibody, Terminated Product in the Territory pursuant to this Agreement results in, or may result in, any claim, suit, or proceeding by a Third Party alleging patent infringement by a Part... |
9.5 Third Party Licenses. If in the reasonable opinion of AbbVie, the Development, Manufacture, Commercialization or other Exploitation, of any Earn-Out Antibody or Earn-Out Product by AbbVie, any of its Affiliates, or any of its or their Licensees and/or Sublicensees infringes or misappropriates any Patent Right or ot... |
9.6 Product Trademarks. (a) With respect to the Collaboration Program, on the Effective Date, and (b) with respect to an Option Program, following AbbVie's exercise of the applicable Acquisition Option, in each case ((a) and (b)), as between the Parties, AbbVie shall have the sole and exclusive right to determine and, ... |
9.7 Inventor's Remuneration. Each Party shall be solely responsible for any remuneration that may be due such Party's inventors under any applicable inventor remuneration laws. |
9.8 International Nonproprietary Name. As between the Parties, AbbVie shall have the sole right and responsibility to select the International Nonproprietary Name or other name or identifier for any Earn-Out Antibody or Earn-Out Product. AbbVie shall have the sole right and responsibility to apply for submission to the... |
ARTICLE 10 CONFIDENTIALITY |
10.1 Product Information. AbCellera recognizes that by reason of AbbVie's rights under this Agreement, AbbVie has an interest in AbCellera maintaining the confidentiality of certain information of AbCellera. Accordingly, (a) with respect to the Collaboration Program, during the Term and for a period of ten (10) years f... |
10.2 Confidentiality Obligations. At all times during the Term and for a period of ten (10) years following termination or expiration hereof in its entirety, each Party shall, and shall cause its officers, directors, employees and agents to, keep confidential and not publish or otherwise disclose to a Third Party and n... |
10.2.1 has been published by a Third Party or otherwise is or hereafter becomes part of the public domain by public use, publication, general knowledge or the like through no wrongful act, fault or negligence on the part of the receiving Party; |
10.2.2 has been in the receiving Party's possession prior to disclosure by the disclosing Party without any obligation of confidentiality with respect to such information; |
10.2.3 is subsequently received by the receiving Party from a Third Party without restriction and without breach of any agreement between such Third Party and the disclosing Party; |
10.2.4 that is generally made available to Third Parties by the disclosing Party without restriction on disclosure; or |
10.2.5 has been independently developed by or for the receiving Party without reference to, or use or disclosure of, the disclosing Party's Confidential Information. |
Specific aspects or details of Confidential Information shall not be deemed to be within the public domain or in the possession of the receiving Party merely because the Confidential Information is embraced by more general information in the public domain or in the possession of the receiving Party. Further, any combin... |
10.3 Permitted Disclosures. |
10.3.1 Each Party may disclose the Confidential Information of the other Party to the extent that such disclosure is: |
(a) in the reasonable opinion of the receiving Party's legal counsel, required to be disclosed pursuant to law, regulation or a valid order of a court of competent jurisdiction or other supra-national, federal, national, regional, state, provincial and local governmental body of competent jurisdiction, (including by re... |
(b) made by or on behalf of the receiving Party to the Regulatory Authorities as required in connection with any filing, application or request for any Regulatory Approval in accordance with the terms of this Agreement; provided that reasonable measures shall be taken to assure confidential treatment of such Confidenti... |
(c) made by or on behalf of the receiving Party to a patent authority as may be necessary or useful for purposes of preparing, obtaining, defending or enforcing a Patent Right in accordance with the terms of this Agreement; provided that reasonable measures shall be taken to assure confidential treatment of such Confid... |
10.3.2 AbbVie or its Affiliates or its or their Licensees and/or Sublicensees may disclose the Confidential Information of AbCellera to its or their advisors, consultants, clinicians, vendors, service providers, contractors, existing or prospective research partners, licensees, sublicensees, or other Third Parties as m... |
10.3.3 AbCellera or its Affiliates may, after receiving advance approval from AbbVie, disclose the Confidential Information of AbbVie to its or their advisors, consultants, clinicians, vendors, service providers, contractors, and the like to the extent necessary for the performance of AbCellera's activities contemplate... |
10.3.4 Each Party may disclose the existence and terms of this Agreement to the extent that such disclosure is: |
(a) made by the receiving Party or its Affiliates to their respective financial and external legal advisors who have a need to know the existence and terms of this Agreement and are either under professional codes of conduct giving rise to expectations of confidentiality and non-use or under written agreements of confi... |
(b) made by the receiving Party or its Affiliates to potential or actual investors or acquirers as may be necessary in connection with their evaluation of such potential or actual investment or acquisition; provided that such Persons shall be subject to obligations of confidentiality and non-use with respect to such Co... |
10.4 Use of Name. Except as expressly provided herein, neither Party shall mention or otherwise use the name, logo, or Trademark of the other Party or any of its Affiliates (or any abbreviation or adaptation thereof) in any publication, press release, marketing and promotional material, or other form of publicity witho... |
10.5 Public Announcements. Each Party shall have the right to issue a press release announcing that they have entered into this Agreement, provided that the timing and content of such announcement must be reviewed by and mutually agreed upon by the Parties. In addition, each Party shall have the right to issue a releas... |
10.6 Publications. AbCellera shall not publish, present, or otherwise disclose, and shall cause its Affiliates and any Third Party subcontractors and its and their employees and agents not to disclose any information relating to any activities under a Research Plan, any Acquired Asset, or any Earn-Out Antibody or Earn-... |
10.7 Return of Confidential Information. Upon the effective date of the expiration or termination of this Agreement for any reason, either Party may request in writing, and the other Party shall either, with respect to Confidential Information to which such first Party does not retain rights under the surviving provisi... |
10.8 Survival. All Confidential Information shall continue to be subject to the terms of this Agreement for the period set forth in Section 10.2 (Confidentiality Obligations). |
ARTICLE 11 REPRESENTATIONS AND WARRANTIES |
11.1 Representations and Warranties of Both Parties. Each Party hereby represents and warrants to the other Party, as of the Effective Date, that: |
11.1.1 such Party is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; |
11.1.2 such Party has taken all necessary action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; |
11.1.3 this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, binding obligation, enforceable against it in accordance with the terms hereof, subject to the effects of bankruptcy, insolvency or other laws of general application affecting the enforcement of creditor ... |
11.1.4 the execution, delivery and performance of this Agreement by such Party do not conflict with and do not violate: (a) such Party's charter documents, bylaws or other organizational documents; (b) in any material respect, any agreement or any provision thereof, or any instrument or understanding, oral or written, ... |
11.1.5 it is not under any obligation, contractual or otherwise, to any Person that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the diligent and complete fulfillment of its obligations hereunder. |
11.2 Representations, Warranties and Covenants, as applicable, of AbCellera. AbCellera hereby represents, warrants and covenants, as applicable, to AbbVie, as of (a) the Effective Date, (b) the date(s) on which the Parties agree to a Research Plan for an Additional Option Program, and (c) the date(s) on which AbCellera... |
11.2.1 AbCellera and its Affiliates (a) have good and marketable title to the Acquired Assets, free and clear of all Encumbrances, (b) are entitled to grant the licenses specified herein, and (c) have the right to use all Know-How and Patent Rights necessary for AbCellera and its Affiliates to fulfill its obligations h... |
11.2.2 Any ongoing exclusivity obligations under the discovery programs do not cover the disclosed Targets; |
11.2.3 AbCellera and its Affiliates will not disclose to a third party any Alloy Mouse Antibody sequences selected for a Target Program or AbbVie's affiliation and identity with such sequences until AbbVie has publicly disclosed the relevant sequences; |
11.2.4 The Development, Manufacture, Commercialization or Exploitation of the Earn-Out Antibodies or Earn-Out Products as contemplated herein will not (a) be subject to any license or agreement (other than the In-License Agreements) with a Third Party to which AbCellera or any of its Affiliates is a party, or (b) to Ab... |
11.2.5 Neither the AbCellera Background IP, AbCellera Improvements, nor any activities under any Research Plan infringe any Patent Right, misappropriate any Know-How, or otherwise use the intellectual property or proprietary right without authorization, of any Person; |
11.2.6 All AbCellera Background Patents and AbCellera Improvement Patents existing as of such date (the "Existing Patent Rights") are listed on Schedule 1.7 (Existing Patents), and all Existing Patent Rights are (a) subsisting and are not invalid or unenforceable, in whole or in part, (b) solely and exclusively owned o... |
11.2.7 All of the In-License Agreements existing as of such date are listed on Schedule 11.2.7 (Existing In-License Agreements), and, to the extent permitted under such In-License Agreements, redacted copies of the In-License Agreements have been provided to AbbVie, and (a) the licenses granted to AbCellera or its Affi... |
11.2.8 During the Term, AbCellera shall not, and shall cause its Affiliates not to, encumber or diminish the rights granted to AbbVie hereunder with respect to any of AbCellera's Patent Rights that are the subject of any license granted to AbbVie hereunder; |
11.2.9 During the Term, AbCellera shall not, and shall cause its Affiliates not to (a) commit any acts or permit the occurrence of any omissions that would cause breach or termination of any In-License Agreement, or (b) amend or otherwise modify or permit to be amended or modified, any In-License Agreement in a way tha... |
11.2.10 All In-License Agreements under which AbbVie receives or is to receive rights under this Agreement do, and shall, contain a provision requiring AbCellera's grant of rights to AbbVie under the relevant intellectual property pursuant to this Agreement to survive on the terms of this Agreement to the extent such t... |
11.2.11 The Existing Patent Rights represent all Patent Rights that AbCellera or its Affiliates own, Control or otherwise have rights to that are necessary or useful for the conduct of activities allocated to either Party under any Research Plan or that claim any AbCellera Background Know-How or Research Know-How. All ... |
11.2.12 Neither AbCellera nor any of its Affiliates has entered into any agreement, whether written or oral, (excluding agreements described in Section 11.2.7 (Representations, Warranties and Covenants, as applicable, of AbCellera) and excluding confidentiality and non-disclosure agreements entered into in the normal c... |
11.2.13 Except as set forth in Schedule 11.2, (a) No claim or litigation has been brought or asserted (and neither AbCellera nor its Affiliates has Knowledge of any claim, whether or not brought or asserted) by any Person alleging that (i) the Existing Patent Rights, the AbCellera Background Know-How or the Research Kn... |
11.2.14 Neither AbCellera nor any of its Affiliates has any Knowledge of any scientific or technical facts or circumstances that would adversely affect the scientific, therapeutic, or commercial potential of the Earn-Out Antibodies or Earn-Out Products. Neither AbCellera nor any of its Affiliates has any Knowledge of a... |
11.2.15 Except as set forth in Schedule 11.2, to AbCellera's or its Affiliates' Knowledge, no Person is infringing or threatening to infringe, or misappropriating or threatening to misappropriate, the Existing Patent Rights, the AbCellera Background Know-How or the Research Know-How, and the conception, development, re... |
11.2.16 Each of the Existing Patent Rights properly identifies each and every inventor of the claims thereof as determined in accordance with the laws of the jurisdiction in which such Existing Patent Right is issued or such application is pending; |
11.2.17 There are no pending or, to AbCellera's or its Affiliates' Knowledge, alleged or threatened, (a) inter partes reviews, post-grant reviews, interferences, re-examinations or oppositions involving the Existing Patent Rights that are in or before any patent authority (or other Governmental Authority performing sim... |
11.2.18 Each Person who has or has had any rights in or to any Existing Patent Rights or any AbCellera Background Know-How or Research Know-How has assigned and has executed an agreement assigning its entire right, title and interest in and to such Existing Patent Rights, AbCellera Background Know-How, or Research Know... |
11.2.19 To AbCellera's and its Affiliates' Knowledge, all works of authorship and all other materials subject to copyright protection included in AbCellera Background Know-How and Research Know-How are original and were either created by employees of AbCellera or its Affiliates within the scope of their employment or a... |
11.2.20 The inventions claimed by the Existing Patent Rights are not the subject of any licenses, options, or other rights of any Governmental Authority, within or outside the United States, due to such Governmental Authority's funding of research and development or otherwise (other than any right to receive payments o... |
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