License and Supply Agreement for a Biological Compound and Related Data

License and Supply Agreement

between

[…]

("A")

and

[…]

("B")

WHEREAS

A has available the compound […].

B is interested in obtaining access to Data of [….] and in being supplied with […].

A is interested in granting access to such Data of […] as further set out below.

NOW, THEREFORE, in consideration of the premises and mutual agreements and covenants hereinafter set forth, the Parties hereby agree as follows:

1. Definitions

In this Agreement (including the preamble) the following capitalized terms shall have the following meanings:

Affiliate                                            shall mean any business entity which controls, is controlled by or is under common control with either Party; for the purpose of this definition, a business entity shall be deemed to "control" another business entity if it owns, directly or indirectly, in excess of 50% of the outstanding voting securities or capital stock of such business entity.

Agreement                                      shall mean this […] license and supply agreement, including all Annexes, as amended from time to time.

CDA                                                shall mean the confidentiality agreement between the Parties effective as of […].

Contract Year                                 shall mean the consecutive twelve (12) month period starting October 1^st of a Year and ending September 30^th of the following Year, with the first Contract Year to commence on […].

Damages - shall mean any and all direct damages, losses, expenses, costs (including reasonable expenses of investigation and reasonable attorneys' fees and expenses), governmental civil or administrative fines and penalties, claims, orders, judgments, suits and actions actually suffered and incurred by a party, including Third Party Claims, but excluding consequential, incidental, exemplary or indirect damages such as lost profits, except if and to the extent that such indirect damages are the result of gross negligence or wilful misconduct.

EU - shall mean the 27 member states comprising the European Union as of the Effective Date plus Switzerland, Liechtenstein and Norway, plus any additional states joining the European Union after the Effective Date, provided the Parties agree to include such new member states.

Force Majeure                                shall mean any cause which is not reasonably within the control of the Party affected, including, but not limited to, blockade, civil commotion, earthquake, explosion, fire, flood, general army mobilization, insurrection, revolution, riot, sabotage, storm, or war (declared or undeclared).

MTA                                                shall mean the materials transfer and data access agreement entered into by the Parties on […].

Party                                               shall mean either party to this Agreement.

Year                                                shall mean the period from January 1^st through December 31^st of the same calendar year.

2. License & Non-Assert

2.1       As of the Effective Date of this Agreement and for the term of this Agreement, A herewith grants B a license under the Patents to develop, Register, make and have made the B Mixtures in the Territory.

2.4       For the avoidance of doubt, no licenses and no other rights are granted by A and its Affiliates (i) under the Patents, and (ii) under any intellectual property of A and its Affiliates other than the Patents. In particular, no licenses and rights are granted under any patents (other than the Patents), trademarks, copyrights, domain names or any know-how.

2.6       If B or its Affiliates makes any B Invention, B shall promptly inform A hereof. All B Inventions which are non-severable from A intellectual property (including but not limited to the Patents) shall be owned by A, and shall for the term of this Agreement be subject to the licenses and non-assert granted by A hereunder.

3. Duration, Termination

3.1       Following due signature by both Parties, this Agreement shall enter into force retroactively as per […] (the "Effective Date"). This Agreement shall remain in force until […] (the "Initial Term").

3.2       Notwithstanding the foregoing, Party may, but shall not be obligated to, terminate this Agreement with immediate effect by giving written notice of termination to the other Party:

(i)         upon any material breach of this Agreement by the other Party which is not remedied within sixty (60) days from written notification thereof;

(ii)        upon the other Party filing a voluntary bankruptcy, upon having an involuntary bankruptcy filed against the other Party, upon the other Party becoming insolvent, upon the other Party's written admittance of being insolvent, upon the other Party's making a general assignment for the benefit of its creditors, upon the other Party's being confiscated or sequestrated or nationalized or in any other way transferred into state ownership; or

(iii)       upon the other Party suffering a change in its ultimate control (it being understood that "control" shall have the meaning ascribed to it in the definition of Affiliate), provided that the new owner of the other Party has a substantial commercial activity in the same field of business as the Party entitled to terminate under this Section 7.2.

3.3       Following the date when either Party has given notice to terminate the Agreement, both Parties shall use their best efforts to avoid any inventories of […] as per the respective termination date. To the extent that as per such termination date B should have certain quantities of […], and provided that such […] is in useable and merchantable condition and has a minimum shelf-life of at least twelve (12) months left, B may request that A repurchase, and A may request that B sells back to A, such remaining inventory of […].

4. Warranty - Liability - Indemnity

1. Warranties re Patents

4.1       A warrants that it is the owner of the Patents and that it has the right to grant the licenses/sublicenses free and clear of all liens, charges, security interests and encumbrances.

4.2       A warrants that it shall take all reasonable measures required in order to maintain the Patents valid.

4.3       A does not warrant or guarantee that (i) any specific level of commercial success will be achieved relating to B's sales and (ii) that the ordinary and anticipated use of the licensed Patents made thereby will not result in safety or health hazards to workers or to purchasers of such products.

4.4       Infringement of Patents by a Third Party: B shall promptly notify A, in writing, of any infringement by a Third Party of Patents which comes to its attention, and shall provide sufficiently detailed information in its possession, as requested by A, to enable A to assess the relevant facts relating to the alleged infringement.

1. Calculation of Damages

5.1       The amount of any Damages payable by any Indemnifying Party shall be net of any amounts actually recovered by the applicable Indemnified Party under applicable insurance policies with respect to such Damages, or from any other Person alleged to be responsible for such Damages. If the applicable Indemnified Party actually receives any amounts under applicable insurance policies with respect to such Damages, or from any other Person alleged to be responsible for any such Damages, subsequent to an indemnification payment by any Indemnifying Party, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made by such Indemnifying Party up to the amount so received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

5.2       Each Indemnified Party agrees to use its commercially reasonable best efforts to mitigate in accordance with all applicable law any Damages for which such Indemnified Party seeks indemnification under this Agreement.

6. Force Majeure and Hardship

6.1       In the event that either Party is affected by Force Majeure which prevent the performance by such Party of its obligations hereunder in whole or in part, such Party shall notify the other Party, as soon as reasonably possible, of the nature and extent of such Force Majeure circumstances.

6.2       Neither Party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other Party, by reason of any delay in the performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to Force Majeure of which the other Party has been notified of in accordance with Section 9.1. The time for the performance of such obligation shall be extended accordingly. The Party so affected shall take all reasonable steps to minimize the loss caused to the other Party and the Parties shall as soon as practicable enter into bona fide discussions with a view to alleviating the effects of said circumstance or to agreeing upon such alternative arrangements as may be fair and reasonable.

6.3       Upon cessation of the circumstances causing delay or impossibility to perform, the Party affected by Force Majeure shall forthwith resume the performance of its contractual obligation(s), unless such performance has been waived in writing by the Party to whom such performance was due.

7. Confidentiality

7.1       Each Party (the "Receiving Party") shall hold in strict confidence and shall not disclose to any third party all information and data disclosed by or on behalf of the other Party or its Affiliates (the "Disclosing Party") prior to or after execution of this Agreement (collectively, "Confidential Information", which for the avoidance of doubt shall include the existence and the terms and conditions of this Agreement as well as information disclosed under the CDA), and the Receiving Party shall not use such Confidential Information for any purpose other than the proper performance of its rights and obligations under this Agreement, without the Disclosing Party's prior approval in writing of such other purpose.

7.2       In the event that mandatory law requires a Receiving Party to disclose to competent regulatory bodies parts of the Disclosing Party's Confidential Information, the Receiving Party shall be entitled to make such disclosure, provided that the Receiving Party promptly upon becoming aware of such disclosure obligation notifies the Disclosing Party and reasonably collaborates with the Disclosing Party in order to limit the scope of such disclosure and best maintain the confidentiality of the disclosed Confidential Information.

7.3       The above confidentiality obligations shall not apply to Confidential Information which:

(a)        was in its possession of the Receiving Party prior to disclosure by or on behalf of the Disclosing Party or its Affiliates, as evidenced by written documentation; or

(b)        on the date of first disclosure to the Receiving Party by or on behalf of the Disclosing Party was in the public domain or thereafter becomes part of the public domain by publication or otherwise, except by the Receiving Party’s breach of this Agreement; or

(c)        which the Receiving Party may receive from a third party, provided, however, that such information was not obtained by such third party, directly or indirectly, from the Disclosing Party; or

(d)        which the Receiving Party may have developed independently with no reference to an and no reliance on any Confidential Information disclosed by the Disclosing Party.

7.4       The confidentiality obligations shall survive the termination or expiration of this Agreement for a period of ten (10) years following the effective date of termination or expiration of this Agreement.

8. Miscellaneous

8.1       Any assignment of this Agreement, in whole or in part, by either Party shall require the written prior consent of the other Party, except that either Party is entitled to assign this Agreement to an Affiliate of at least comparable standing as the Party assigning the Agreement.

8.2       No modification of this Agreement shall be effective unless it is in writing and signed on behalf of both Parties by their duly authorized representatives.

8.3       If any provision of this Agreement is held to be invalid and/or unenforceable under any applicable law, the remaining provisions shall not be affected and the invalid and/or unenforceable provision shall be deemed to have been automatically replaced by such valid and enforceable provision which most closely reflects the original economic intention of the Parties.

8.4       All notices provided required under this Agreement shall be in the English language and in writing and shall be given by registered letter, courier or facsimile to the addresses set froth below, or such other address as either Party may communicate to the other Party.

8.5       This Agreement shall be governed and construed by the Laws of […], excluding the principles of conflict of laws and the United Nations Convention on the International Sale of Goods.

The Parties have duly executed this Agreement as of the dates written below:

_________,   __________

Place                       Date

_______________________                    _______________________

Name:                                                                     Name:

Title:                                                                        Title:

__________,             __________

Place                       Date

_______________________                    _______________________

Name:                                                                     Name:

Title:                                                                        Title: