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12.2 Indemnification by Anima. Subject to Section 12.3 (Procedure), Anima shall indemnify, hold harmless, and defend AbbVie and its Affiliates, Sublicensees, and Distributors, and its and their respective directors, officers, employees, and agents, from and against any and all Losses to the extent arising out of or res... |
12.2.1 the negligence, recklessness, or willful misconduct of Anima 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 Anima of Anima's obligations or exercise of Anima's rights under this Agreement; |
12.2.2 any breach of this Agreement, including any representation or warranty or covenant, by Anima; |
12.2.3 infringement or misappropriation of any Patent Rights or other intellectual property rights of any Third Party by the activities conducted by or on behalf of Anima or its Affiliates under this Agreement; or |
12.2.4 the Development, Commercialization, Manufacture, or other Exploitation of any Royalty-Bearing Product or Royalty-Bearing Compound by or on behalf of Anima or its Affiliates or (sub)licensees anywhere in the world after the Agreement has terminated (in whole or in part) with respect to such Royalty-Bearing Produc... |
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 Anima 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 liability f... |
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 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"). The Indemnifie... |
12.3.2 Control of Defense. |
(a) In General. Subject to the provisions of Sections 9.5 (Infringement Claims by Third Parties) and 9.6 (Invalidity or Unenforceability Defenses or Actions), 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 a... |
(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 att... |
(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. Anima 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 Anima's participation under this Agreement, and (b) shall... |
12.4.1 Types and Minimum Limits. The types of insurance and minimum limits with respect to Anima shall include at least the following: |
(a) Worker's Compensation with statutory limits in compliance with the Worker's Compensation laws of Israel and of the state or states in which Anima 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 Anima has employees in Israel or 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 Five Million Dollars ($5,000,000) in the aggregate. |
Anima 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, Anima 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 Anima shall co... |
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), (C) TO THE EXTENT ANY SUCH DAMAGES ARE REQUIRED TO BE PAID TO A THIRD PARTY FOR CLAIMS THAT ARE SUBJECT TO INDEMNIFICATION UNDER TH... |
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: (a) the expiration of the last-to-expire License Option Period, if AbbVie does not exercise its License Option with respect to any Target Program Slot; or (b) otherwise, the e... |
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) Partial Terminations. Notwithstanding Section 13.2.1(a) (Material Breach), if any uncured material breach by AbbVie of any of its material obligations under this Agreement is with respect to: (i) one (1) or more, but not all, of the countries in the Territory, then Anima will not have the right to terminate this Ag... |
(c) 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) AbbVie may terminate this Agreement on a Royalty-Bearing Product-by-Royalty-Bearing Product basis effective immediately upon written notice to Anima if AbbVie in good faith believes that it is not advisable for AbbVie to continue to Develop or Commercialize such Royalty-Bearing Product as a result of a perceived se... |
(b) AbbVie may terminate this Agreement (i) in its entirety at any time, or (ii) with respect to one (1) or more Collaboration Targets, Royalty-Bearing Products, or countries in the Territory, on a Collaboration Target-by-Collaboration Target, Royalty-Bearing Product-by-Royalty-Bearing Product, or country-by-country ba... |
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 Debarment. AbbVie may terminate this Agreement pursuant to Section 11.2 (Representations, Warranties, and Covenants, as Applicable, of Anima). |
13.2.5 Termination for Anti-Bribery or Anti-Corruption Non-Compliance. AbbVie may terminate this Agreement in accordance with Section 11.5 (Anti-Bribery and Anti-Corruption Compliance). |
13.2.6 Termination for Failure or Delay to Obtain HSR Clearance. AbbVie may terminate this Agreement, on a Collaboration Target-by-Collaboration Target basis, with respect to such Collaboration Target upon written notice to Anima in the event that (a) either Party receives a Second Request following AbbVie's exercise o... |
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 Debarment), or Section 13.2.5 (Termination for Anti-Bribery or Anti... |
13.3.1 the royalties payable by AbbVie to Anima pursuant to Section 7.8.1 (Royalty Rates) with respect to any Net Sales thereafter shall be based on royalty rates that are fifty percent (50%) of the applicable royalty rates set forth in Section 7.8.1 (Royalty Rates); |
13.3.2 the amount of any milestone payment payable by AbbVie to Anima under Section 7.6 (Development and Regulatory Milestone Payments) or Section 7.7 (Sales-Based Milestone Payments) for any milestone event achieved thereafter shall be reduced by fifty percent (50%) of the applicable amount set forth in Section 7.6 (D... |
13.3.3 AbbVie's obligations under Section 5.3 (AbbVie Diligence Obligation) shall terminate; and |
13.3.4 all other provisions of this Agreement shall remain in full force and effect without change. |
Notwithstanding the foregoing, if, at any time during the Term, AbbVie has the right to terminate this Agreement pursuant to Section 13.2.1 (Termination for Cause) for an uncured material breach by Anima of a material obligation that is not an Anima Severe Material Breach, then if AbbVie elects to continue this Agreeme... |
13.4 Effects of Termination. |
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 (a) this Agreement in its entirety by AbbVie pursuant to Section 13.2.2 (Termination by AbbVie) or Section 13.2.6 (Termination for Failure or Delay to Obtain HSR Clearance), al... |
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 Anima pursuant to Section 13.2.1 (Termination for Cause) or Section 13.2.3 (Termination for Insolvency), all rights and licenses granted by either Party to th... |
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 AbbVie pursuant to Section 13.2.1 (Termination for Cause), Section 13.2.3 (Termination for Insolvency), Section 13.2.4 (Termination for Debarment), or Section... |
13.5 Effects of Termination in Terminated Territory. 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 with respect to a country or other jurisdiction by AbbVie pursuant to this ARTICLE 13 (Term and Termination) (such ... |
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 targets, countries, or Royalty-Bearing Products 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 expirat... |
13.6.2 Surviving Provisions of the Agreement. Without limiting Section 13.6.1 (Accrued Rights), the provisions of ARTICLE 1 (Definitions) (solely to the extent such definitions are used in other surviving provisions); Section 4.4 (No Other Rights); Section 4.7 (Rights in Bankruptcy); Section 6.5 (Records and Audits); S... |
13.6.3 Inventory Sell-Off. Notwithstanding the termination of AbbVie's licenses and other rights under this Agreement, AbbVie and its Affiliates and Sublicensees shall have the right for twelve (12) months after the effective date of such termination to sell or otherwise dispose of all Royalty-Bearing Products then in ... |
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 3.5 (Decision-Making), Section 7.14.2 (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 con... |
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 Procedures) and subject to the Federal Arbitration Act. |
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... |
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 ne... |
14.2.6 Monetary Damages. Notwithstanding anything herein to the contrary, including any designation of a payment as "non-refundable" or "non-creditable," in the event of a Dispute, the Parties may consider payments made by AbbVie under this Agreement when determining the amount of monetary damages due to AbbVie. |
14.3 Assignment. |
14.3.1 This Agreement may not be assigned or otherwise transferred, nor may any right or obligation hereunder be assigned or transferred (except as provided in Sections 4.2 (Sublicensing Rights), 6.3 (Performance by Affiliates and Sublicensees), or 6.4 (Subcontracting)), whether by operation of law or otherwise, in who... |
14.3.2 AbbVie agrees that, notwithstanding any provision of this Agreement to the contrary, if Anima undergoes a Change of Control, then AbbVie will not have any rights under this Agreement to any Patent Right, Know-How, or other intellectual property or other proprietary rights that are owned or otherwise Controlled b... |
14.4 Force Majeure. Except for the payment of money, 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 is caused by or results from ev... |
14.5 Notices. 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 transmission confirme... |
If to Anima, addressed to: Anima Biotech Inc. 75 Claremont Rd, Ste 102 Bernardsville, NJ 07924, USA Attention: Chief Executive Officer |
with a copy (which shall not constitute notice) to: Yochi.slonim@animabiotech.com |
If to AbbVie, addressed to: AbbVie Global Enterprises Ltd. c/o Harbour Fiduciary Services Ltd. Thistle House, 4 Burnaby Street Hamilton Pembroke HM 11 Bermuda |
with a copy (which shall not constitute notice) to: AbbVie Inc. 1 North Waukegan Road North Chicago, IL 60064 Facsimile: +1 847 935 3294 Attn: Executive Vice President, General Counsel, and Secretary |
14.6 Export Clause. 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 a... |
14.7 Waiver; 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. The wa... |
14.8 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 ma... |
14.9 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... |
14.10 Equitable Relief. |
14.10.1 Each Party acknowledges and agrees that the restrictions, rights, and obligations set forth in ARTICLE 9 (Intellectual Property Rights) and ARTICLE 10 (Confidentiality) are reasonable and necessary to protect the legitimate interests of the other Party and that such other Party would not have entered into this ... |
14.10.2 Anima acknowledges and agrees that the restrictions, rights, and obligations set forth in Section 2.9 (License Option), ARTICLE 4 (Grant of License), and ARTICLE 8 (Exclusivity; Change of Control) are reasonable and necessary to protect the legitimate interests of AbbVie and that AbbVie would not have entered i... |
14.11 Entire Agreement; Amendments. This Agreement, together with the Schedules and Exhibits 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, whether w... |
14.12 Relationship of the Parties. It is expressly agreed that Anima, 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 Anima, on the one han... |
14.13 Headings; Construction; Interpretation. Headings and any table of contents used herein are for convenience only and shall not in any way affect the construction of or be taken into consideration in interpreting this Agreement. The language of this Agreement shall be deemed to be the language mutually chosen by th... |
14.14 Books and Records. Any books and records to be maintained under this Agreement by a Party or its Affiliates or Sublicensees (other than Dispute Settlement Sublicensees) shall be maintained in accordance with applicable Accounting Standards. |
14.15 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... |
14.16 Parties in Interest. Except as provided in ARTICLE 12 (Indemnification; Insurance), all of the terms and provisions of this Agreement shall be binding upon, and shall inure to the benefit of and be enforceable solely by the Parties and their respective successors, heirs, administrators, and permitted assigns and ... |
14.17 Counterparts. This Agreement may be signed in counterparts, each and every one of which shall be deemed an original, notwithstanding variations in format or file designation which may result from the electronic transmission, storage, and printing of copies from separate computers or printers. Facsimile signatures... |
[Signature page follows] |
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date. |
Anima Biotech Inc. |
By: Name: Title: |
AbbVie Global Enterprises Ltd. |
By: Name: Title: |
Exhibit A-1 Initial Collaboration Targets |
Initial Collaboration Targets |
NRAS |
BRD2 |
FOXA1 |
-- |
Exhibit A-2 Reserved Targets |
Reserved Targets |
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