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11.2.21 Without limiting the generality of Section 11.2.20 (Representations, Warranties and Covenants, as applicable, of AbCellera), the inventions claimed by the Existing Patent Rights (a) were not conceived, discovered, developed or otherwise made in connection with any research activities funded, in whole or in part... |
11.2.22 AbCellera has made available to AbbVie all AbCellera Background Know-How and Research Know-How in its possession or Control related to the Earn-Out Products, and all such Know-How is true, complete and correct; |
11.2.23 The AbCellera Background Know-How and Research Know-How has been kept confidential or has been disclosed to Third Parties only under terms of confidentiality. To the Knowledge of AbCellera and its Affiliates, no breach of such confidentiality has been committed by any Third Party; |
11.2.24 AbCellera and its Affiliates have generated, prepared, maintained and retained all necessary permits, approvals or other authorizations that are required to be maintained or retained with respect to the conduct of its activities under this Agreement, all in accordance with good laboratory, manufacturing and cli... |
11.2.25 To AbCellera's or its Affiliates' Knowledge, except for the OrthoMab Platform Technology, the AbCellera Background IP is not, nor will it be, necessary for the use and Exploitation of the data or information to be provided in any Data Package, including any Antibody that are Developed by or on behalf of AbCelle... |
11.2.26 Neither AbCellera nor its Affiliates is a party to any agreement with any Governmental Authority that refers or relates to the AbCellera Background IP, AbCellera Improvements, Research Patents, Research Know-How, any Research Target or any activity contemplated hereunder; |
11.2.27 AbbVie's receipt, use, or Exploitation of any Data Package and the data and information provided therein will not create or impose any obligation upon AbbVie to a Third Party; |
11.2.28 None of the AbCellera Background IP, AbCellera Improvements, Research Know-How, or Research Patents are subject to any restriction that would require any Development, Manufacturing or Commercialization activities under this Agreement to occur in a certain location or otherwise restrict the conduct of such activ... |
11.2.29 AbCellera and its Affiliates have conducted and will conduct, and their respective contractors and consultants have conducted and will conduct, all Development activities allocated to AbCellera hereunder in accordance with good laboratory, manufacturing and clinical practice and applicable Law (including all ap... |
11.2.30 AbCellera and its Affiliates have employed (and, with respect to such tests and studies that AbCellera will perform, will employ) Persons with appropriate education, knowledge and experience to conduct and to oversee the conduct of such activities; |
11.2.31 In the last five (5) years, AbCellera has not received written notice of any alleged material violation from a Governmental Authority or other Third Party of any Data Security and Privacy Laws and has no Knowledge of facts that would give rise to such a violation; |
11.2.32 AbCellera is not under investigation by any Governmental Authority for a violation of Data Security and Privacy Laws; |
11.2.33 Neither AbCellera nor any of its Affiliates, nor any of its or their respective officers, employees or agents has (a) committed an act, (b) made a statement or (c) failed to act or make a statement that, in any case ((a), (b) and (c)), that (i) would be or create an untrue statement of material fact or fraudule... |
11.2.34 AbCellera shall cause all Persons who perform Development activities (including regulatory activities) for AbCellera under this Agreement or who conceive, discover, Develop or otherwise make any Know-How or Patent Rights by or on behalf of AbCellera or its Affiliates or its or their (sub)licensees under or in c... |
11.2.35 Neither AbCellera nor its Affiliates will grant any license relating to the Research Know-How, Research Patents, AbCellera Background IP or AbCellera Improvements that would conflict with the rights or licenses granted to AbbVie hereunder; |
11.2.36 No government authorization, consent, approval, license, exemption of or filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, under any applicable Laws currently in effect, is or will be necessary for, or in connection with,... |
11.2.37 AbCellera and its Affiliates have not ever been and are not currently the subject of a proceeding that could lead to it or its Affiliates becoming a Debarred Entity, Excluded Entity or Convicted Entity and AbCellera and its Affiliates will not use in any capacity, in connection with the obligations to be perfor... |
11.2.38 The representations and warranties of AbCellera in this Agreement and the information, documents and materials furnished to AbbVie in connection with its period of diligence prior to the Effective Date and the date on which AbCellera delivers a complete Data Package with respect to each Target Program, do not, ... |
11.3 Representations, Warranties and Covenants, as applicable, of AbbVie. AbbVie hereby represents, warrants, and covenants, as applicable, to AbCellera, as of (a) the Effective Date, and (b) the date(s) on which the Parties agree to a Research Plan for an Additional Option Program: |
11.3.1 AbbVie (a) is entitled to grant the licenses specified herein, and (b) has the right to use all Know-How and Patent Rights necessary for AbbVie to fulfill its obligations hereunder; |
11.3.2 Neither AbbVie 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 AbbVie nor any of its Affiliates has any Knowledge of any writ... |
11.3.3 On an Option Program-by-Option Program basis, before exercising its Acquisition Option pursuant to Section 2.7.2 (Exercise of Acquisition Option), neither AbbVie nor any of its Affiliates shall: (a) directly or indirectly, Develop or Commercialize any Project Antibody under the applicable Option Program, except ... |
11.3.4 There are no complaints filed in court or to AbbVie's Knowledge, otherwise threatened, in each case pending relating to AbbVie Background Know-How which, if decided in a manner adverse to AbbVie, would materially affect AbCellera's use of the AbbVie Background Know-How as contemplated by this Agreement; and |
11.3.5 Neither AbbVie nor its Affiliates will use in any capacity, in connection with the obligations to be performed under this Agreement, any person who is a Debarred Individual, Excluded Individual, or Convicted Individual. AbbVie further covenants that if, during the Term, AbbVie or an Affiliate of AbbVie becomes a... |
11.4 Additional Covenants of AbCellera. From and after the Effective Date, AbCellera shall not, and shall cause its Affiliates not to, (a) misappropriate or infringe any valid and enforceable Intellectual Property Rights of a Third Party in connection with the activities allocated to AbCellera under this Agreement, (b)... |
11.5 Disclaimer. Except as otherwise expressly set forth in this Agreement, NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT ANY PATENT RIGHTS ARE VALID OR ENFORCEABLE, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FI... |
11.6 Anti-Bribery and Anti-Corruption Compliance. Each Party represents, warrants, and covenants to the other Party in connection with this Agreement that it and its Affiliates (a) have complied and will comply with all applicable Laws, rules, regulations and industry codes governing bribery, money laundering, and othe... |
11.7 Bring Down Limitations. The disclosures set forth in any updated Schedule 11.2 (AbCellera Disclosure Schedule) (an "Updated Disclosure Schedule") shall be limited to (a) updating Schedule 1.7 (Existing AbCellera Background Patents), (b) updating Schedule 11.2.7 (Existing In-License Agreements), and (c) any matter ... |
ARTICLE 12 INDEMNIFICATION; INSURANCE |
12.1 Indemnification by AbbVie. Subject to Section 12.3 (Procedure), AbbVie shall indemnify, hold harmless and defend AbCellera and its Affiliates, and its or their respective directors, officers, employees, and agents, from and against any and all Liabilities, including the reasonable fees of attorneys and other profe... |
12.1.1 the negligence, recklessness or willful misconduct of AbbVie, any of its Affiliates or Licensees or any Sublicensee, or its or their respective directors, officers, employees, or agents, in connection with performance by or on behalf of AbbVie of AbbVie's obligations or exercise of AbbVie's rights under this Agr... |
12.1.2 any breach of this Agreement, including any representation or warranty or covenant, by AbbVie; or |
12.1.3 the Exploitation conducted by or on behalf of AbbVie, any of its Affiliates or Licensees or any Sublicensee of (a) with respect to the Collaboration Program, following expiration of the Research Term, and (b) with respect to any Option Program, after an applicable Acquisition Option Effective Date, in each case ... |
12.1.4 Liabilities solely arising from the Functional Characterization Data; |
except, in each case (Section 12.1.1, Section 12.1.2 and Section 12.1.3), to the extent that AbCellera has an obligation to indemnify AbbVie for Losses pursuant to Section 12.2 (Indemnification by AbCellera), as to which Losses each Party shall indemnify the other to the extent of their respective liability for such Lo... |
12.2 Indemnification by AbCellera. Subject to Section 12.3 (Procedure), AbCellera shall indemnify, hold harmless and defend AbbVie and its Affiliates, its and their Licensees and/or Sublicensees and Distributors and its or their respective directors, officers, employees and agents, from and against any and all Losses t... |
12.2.1 the negligence, recklessness or willful misconduct of AbCellera or any of its Affiliates or subcontractors, or its or their respective directors, officers, employees, or agents, in connection with performance by or on behalf of AbCellera of AbCellera's obligations or exercise of AbCellera's rights under this Agr... |
12.2.2 any breach of this Agreement, including any representation or warranty or covenant, by AbCellera; |
12.2.3 the infringement or misappropriation of any Patent Rights or other Intellectual Property Rights of any Third Party by the Exploitation conducted by or on behalf of AbbVie, its Affiliates or its or their Licensees and/or Sublicensee of any Earn-Out Product in or for the Territory that arises from or relates to an... |
12.2.4 the Development, Commercialization, Manufacture, or other Exploitation of (a) any Earn-Out Antibody, Earn-Out Product or Research Target by or on behalf of AbCellera, except for such Development, Commercialization, Manufacture, or other Exploitation conducted by, on behalf of, or for AbbVie, its Affiliates or it... |
12.2.5 Excluded Liabilities; |
except, in each case (Section 12.2.1, Section 12.2.2, Section 12.2.3 and Section 12.2.4), to the extent that AbbVie has an obligation to indemnify AbCellera for Losses pursuant to Section 12.1 (Indemnification by AbbVie), as to which Losses each Party shall indemnify the other to the extent of their respective liabilit... |
12.3 Procedure. |
12.3.1 Notice. All indemnification claims in respect of a Party, its Affiliates or, in the case of AbbVie, its or their Licensees and/or Sublicensees or Distributors, or its or their respective directors, officers, employees and agents (each, an "Indemnitee") shall be made solely by such Party (the "Indemnified Party")... |
12.3.2 Control of Defense. |
(a) In General. Subject to Section 9.4 (Infringement Claims by Third Parties), 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 as... |
(b) Right to Participate in Defense. Without limiting Section 12.3.2(a) (In General), 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 ... |
(c) 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 adversely affecting the business of the Indemnified Party in any manner, and ... |
(d) 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 atten... |
(e) Expenses. Except as provided above, 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, without prejudice to the... |
12.4 Insurance. AbCellera 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 AbCellera's participation under this Agreement, (b) s... |
12.4.1 Types and Minimum Limits. The types of insurance and minimum limits with respect to AbCellera shall include at least the following: |
(a) Worker's Compensation with statutory limits in compliance with the Worker's Compensation laws of the Province of British Columbia, Canada, and Australia. |
(b) Employer's Liability coverage with a minimum limit of Five Hundred Thousand Dollars (US$500,000) per occurrence. |
General Liability Insurance with a minimum limit of Two Million Dollars (US$2,000,000) per occurrence and Ten Million Dollars (US$10,000,000) in the aggregate. |
AbCellera shall at all times maintain in force any insurance policy that is required by any federal, state, national or other such applicable Law that may govern or have jurisdiction over any provision of this Agreement and at all times remain fully compliant with any such applicable Law. |
12.4.2 Certificates of Insurance. Upon request by AbbVie, AbCellera shall provide Certificates of Insurance evidencing compliance with the above requirements of this Section 12.4 (Insurance). The insurance policies shall be under an occurrence form, but if only a claims-made form is available to AbbVie, then AbCellera ... |
12.4.3 Self-Insurance. Notwithstanding anything to the contrary in this Agreement, AbbVie may self-insure, in whole or in part. |
12.5 Limitation of Liability. EXCEPT (A) FOR A BREACH OF ARTICLE 8 (EXCLUSIVITY; CHANGE OF CONTROL) OR ARTICLE 10 (CONFIDENTIALITY), (B) AS PROVIDED UNDER SECTION 14.10 (EQUITABLE RELIEF), OR (C) TO THE EXTENT ANY SUCH DAMAGES ARE REQUIRED TO BE PAID TO A THIRD PARTY FOR CLAIMS THAT ARE SUBJECT TO INDEMNIFICATION UNDER... |
ARTICLE 13 TERM AND TERMINATION |
13.1 Term. This Agreement shall commence as of the Effective Date and, unless terminated earlier, shall continue in full force and effect until the expiration of the last to expire Earn-Out Term with respect to all Earn-Out Products in all countries (the "Term"); provided that if AbbVie terminates the Collaboration Pro... |
13.2 Termination. |
13.2.1 Termination for Cause. |
(a) 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 Noti... |
(b) Invocation of Termination for Material Breach. Notwithstanding the foregoing, the Parties agree that termination pursuant to this Section 13.2.1 (Termination for Cause) is a remedy to be invoked only if the breach cannot be adequately remedied through a combination of specific performance and the payment of money d... |
13.2.2 Termination by AbbVie. |
(a) During the Research Term, AbbVie may terminate this Agreement in its entirety (i) effective immediately upon written notice to AbCellera if AbbVie in good faith believes that it is not advisable for AbbVie to continue to Develop or Commercialize any Earn-Out Antibodies or Earn-Out Products as a result of perceived ... |
(b) During the Research Term, AbbVie may terminate this Agreement on a Target Program-by-Target Program basis (i) immediately, if AbbVie in good faith believes that it is not advisable for AbbVie to continue to Exploit an applicable Earn-Out Antibody as a result of a serious safety issue regarding the use of such Earn-... |
(c) After the Research Term, AbbVie may terminate this Agreement on a Target Program-by-Target Program basis (i) immediately, if AbbVie in good faith believes that it is not advisable for AbbVie to continue to Exploit an applicable Earn-Out Antibody as a result of a serious safety issue regarding the use of such Earn-O... |
13.2.3 Termination for Insolvency. In the event that either Party (or a parent of such 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 no... |
13.2.4 Termination for Anti-Bribery or Anti-Corruption Non-Compliance. AbbVie may terminate this Agreement in its entirety in accordance with Section 11.6 (Anti-Bribery and Anti-Corruption Compliance). |
13.2.5 Termination for Debarment. AbbVie may terminate this Agreement in its entirety or on a Target Program-by-Target Program basis in accordance with Section 11.2.37 (Representations, Warranties and Covenants, as Applicable, of AbCellera). |
13.2.6 Termination for Failure or Delay to Obtain HSR Clearance. AbbVie may terminate this Agreement, on a Target Program-by-Target Program basis, with respect to a Target Program upon written notice to AbCellera in the event that (a) either Party receives a Second Request following (i) with respect to the Collaboratio... |
13.3 Modification in Lieu of Termination. If, at any time during the Term, AbbVie has the right to terminate this Agreement pursuant to Section 13.2.1 (Termination for Cause), Section 13.2.3 (Termination for Insolvency), Section 13.2.4 (Termination for Anti-Bribery or Anti-Corruption Non-Compliance), or Section 13.2.5 ... |
13.3.1 the rates payable by AbbVie to AbCellera pursuant to Section 7.8 (Earn-Out) with respect to any Net Sales thereafter shall be based on rates that are fifty percent (50%) of the applicable rates set forth in Section 7.8 (Earn-Out); |
13.3.2 the amount of any milestone payment payable by AbbVie to AbCellera under Section 7.5 (Development and Regulatory Milestone Payments), Section 7.6 (Commercial Milestone Payments) or Section 7.7 (Sales-Based Milestone Payments) for any milestone event achieved thereafter shall be reduced by fifty percent (50%) of ... |
13.3.3 all other provisions of this Agreement shall remain in full force and effect without change. |
13.4 Effects of Termination of Agreement. |
13.4.1 Without limiting any other legal or equitable remedies that either Party may have under this Agreement, in the event of a termination of this Agreement in its entirety by AbbVie pursuant to Section 13.2.2 (Termination by AbbVie) (a) all rights and licenses granted by either Party to the other Party under this Ag... |
13.4.2 Without limiting any other legal or equitable remedies that either Party may have under this Agreement, in the event of a termination of this Agreement by AbbVie on a Target Program-by-Target Program basis pursuant to Section 13.2.2 (Termination by AbbVie) or pursuant to Section 13.2.6 (Termination for Failure o... |
13.4.3 Without limiting any other legal or equitable remedies that either Party may have under this Agreement, in the event of a termination of this Agreement by AbCellera pursuant to Section 13.2.1 (Termination for Cause) or Section 13.2.3 (Termination for Insolvency), (a) AbCellera shall promptly transfer, convey, as... |
13.4.4 Without limiting any other legal or equitable remedies that either Party may have under this Agreement, in the event of a termination of this Agreement in its entirety by AbbVie pursuant to Section 13.2.1 (Termination for Cause), Section 13.2.3 (Termination for Insolvency), Section 13.2.4 (Termination for Anti-B... |
13.4.5 Without limiting any other legal or equitable remedies that either Party may have under this Agreement, in the event of a termination of this Agreement on a Target Program-by-Target Program basis by AbbVie pursuant to Section 13.2.1 (Termination for Cause) or pursuant to Section 13.2.5 (Termination for Debarment... |
13.4.6 Grantback IP. Without limiting any other legal or equitable remedies that either Party may have under this Agreement, in the event of a termination of an applicable Option Program by AbbVie pursuant to Section 13.2.2(b) (Termination by AbbVie), then, subject to Section 13.5 (Reverse Royalty), AbbVie shall, and h... |
13.4.7 Effect of Termination on Exclusivity. Without limiting any other legal or equitable remedies that either Party may have under this Agreement, in the event of (a) termination of the Agreement by AbCellera under Section 13.2.1 (Termination for Cause) or (b) termination of this Agreement in its entirety or on a Tar... |
13.5 Reverse Royalty. If this Agreement is terminated in its entirety or with respect to an Option Program, and in connection therewith, AbbVie grants to AbCellera a grantback license pursuant to Section 13.4.6 (Grantback IP), in consideration of the licenses granted and other consideration provided to AbCellera pursua... |
13.6 Accrued Rights; Surviving Provisions of the Agreement. |
13.6.1 Accrued Rights. Termination or expiration of this Agreement either in its entirety or with respect to one (1) or more Target Program for any reason shall be without prejudice to any rights that shall have accrued to the benefit of either Party prior to such termination or expiration, including the payment obliga... |
13.6.2 Surviving Provisions of the Agreement. Without limiting Section 13.6.1 (Accrued Rights), the provisions of Article 1 (Definitions) (to the extent the definitions apply to the surviving provisions), Section 4.4 (No Other Rights), Section 6.3 (Records and Audits), Section 7.14 (Financial Records) through Section 7... |
ARTICLE 14 MISCELLANEOUS |
14.1 Governing Law; Service. |
14.1.1 Governing Law. This Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in accordance with the Laws of the State of New York without reference to conflicts of laws principles; provided that all questions concerning (a) inventorship and ownership... |
14.1.2 Service. Each Party further agrees that service of any process, summons, notice or document by certified mail to its address set forth in Section 14.5 (Notices) shall be effective service of process for any action, suit, or proceeding brought against it under this Agreement in any such court. |
14.2 Dispute Resolution. Except for disputes resolved by the procedures set forth in Section 3.6 (Decision-Making), Section 7.15.2 (Audit Dispute) or Section 14.10 (Equitable Relief), if a dispute arises between the Parties in connection with or relating to this Agreement or any document or instrument delivered in conn... |
14.2.1 General. Any Dispute shall first be referred to the Executive Officers of the Parties, who shall confer in good faith on the resolution of the issue. Any final decision mutually agreed to by the Executive Officers shall be conclusive and binding on the Parties. If the Executive Officers are not able to agree on ... |
14.2.2 ADR. Subject to Section 14.2.1 (General) and Section 14.2.3 (Intellectual Property Disputes), any ADR proceeding under this Agreement shall take place pursuant to the procedures set forth in Schedule 14.2.2 (ADR). |
14.2.3 Intellectual Property Disputes. Unless otherwise agreed by the Parties in writing, a Dispute between the Parties relating to the validity, enforceability or patentability of any Patent Right, Trademark or other Intellectual Property Rights, if not resolved in accordance with Section 14.2.1 (General), shall not b... |
14.2.4 Adverse Ruling. Any determination pursuant to this Section 14.2 (Dispute Resolution) 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. |
14.2.5 Interim Relief. Notwithstanding anything herein to the contrary, nothing in this Section 14.2 (Dispute Resolution) shall preclude either Party from seeking interim or provisional relief, including a temporary restraining order, preliminary injunction or other interim equitable relief concerning a Dispute, if nec... |
14.3 Assignment. |
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